Shields v. Perrine

• Court: Texas Court of Appeals
• Writing for the Court: Walthall
• Citation: Shields v. Perrine, 181 S.W. 232 (Tex. App. 1915)
• Decision Date: 02 December 1915
• Docket Number: (No. 490.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: SHIELDS et al. v. PERRINE et al.

181 S.W. 232

SHIELDS et al. v. PERRINE et al.

(No. 490.)^*

Court of Civil Appeals of Texas. El Paso.

December 2, 1915.

On Rehearing, January 6, 1916.

Appeal from District Court, Jeff Davis County; W. C. Douglas, Judge.

Trespass to try title by Owen B. Shields and others against Thos. L. Perrine and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. R. Hill, of Ft. Davis, for appellants. J. A. Gillett, of El Paso, for appellees.

WALTHALL, J.

This was an action of trespass to try title, which was brought by the appellants, Owen B. Shields, John P. Shields, Mamie J. Robinson (née Shields) joined by her husband, pro forma, G. C. Robinson, against Thos. L. Perrine, and W. E. Berry, appellees, in which appellants seek to recover of appellees the east 80 acres of a 160-acre tract of land in Jeff Davis county, patented to John B. Shields, by patent No. 365, vol. 10, and described by metes and bounds. The appellees pleaded not guilty and the statutes of limitation. The case was tried without a jury. The trial judge made and filed the following as his conclusions of fact, which we adopt as our own:

"Findings of Fact.

"(1) On September 1, 1885, Susan Shields, the wife of John B. Shields, acquired the title, as her separate property, to the east one-half of survey No. 1, known as the John B. Shields pre-emption in Jeff Davis county (being the land involved in this suit) by regular chain of title from the sovereignty of the soil.

"(2) On September 17, 1886, the said Susan Shields died intestate. She left surviving her, her husband and four minor children, one of said children having died shortly thereafter, leaving the plaintiffs as her only surviving children.

"(3) By deed dated November 2, 1891, John B. Shields, the surviving husband, conveyed to George H. Perrine an undivided one-third interest in and to the east half of said survey No. 1, during the life of the grantor (being the interest acquired by said Shields through inheritance from his wife's estate).

"(4) George H. Perrine went into immediate possession of said east half of survey No. 1, and shortly thereafter erected a fence around the same, and continuously thereafter used said land for farming and grazing purposes up to the time of the sale thereof by him.

"(5) By deed dated February 20, 1912, George H. Perrine conveyed the east half of said survey No. 1 to Tom L. Perrine, who took immediate possession thereof, through tenant, and has had a tenant in continuous possession thereof, up to the time of trial, using and cultivating the same as the said George H. Perrine had done.

"(6) On October 17, 1887, John B. Shields qualified in the county court of Jeff Davis county, Tex., as the duly qualified and acting guardian of the estates of Owen B. (aged 11), Mamie J. (aged 8), and John P. (aged 7), his three minor children.

"(7) The inventory and appraisement in said guardianship showed said estate to have on hand `80 acres of land in Jeff Davis county, being the east half of survey 7, and known as John B. Shields homestead survey.'

"(8) On January 12, 1888, the county court of Jeff Davis county, sitting in probate, authorized the sale of the aforesaid land by the guardian, under the description aforesaid. The application for said sale and the citation issued thereon also gave the aforesaid description of said land. Said authority to sell was continued from term to term until October 2, 1891, when the guardian filed a report of sale of said land to George H. Perrine. The original report of sale described said land as being the east half of survey No. 1, known as the John B. Shields homestead, but the clerk, in recording said report upon the minutes, erroneously transcribed `east' to read `west.'

"(9) On October 14, 1891, the said court confirmed the aforesaid sale by order upon the minutes in part as follows: `This day came on to be considered the report of the sale of land by John B. Shields, guardian of the persons and estates of Owen B. Shields, Mamie J. Shields, and John P. Shields, minors, made by virtue of an order of sale made by this court on the 12th day of January, 1888, of the following described lands, to wit' [said land was described as being the `west' half of survey No. 1, instead of the `east' half].

"(10) Under date of November 2, 1891, the said guardian conveyed 80 acres of land in Jeff Davis county, being the east half of survey No. 1, known as the John B. Shields pre-emption survey by deed, based upon the aforesaid confirmation order, to G. H. Perrine.

"(11) The said G. H. Perrine and the said Tom L. Perrine have, respectively, from year to year, as they accrued, paid all taxes due upon said land.

"(12) The said survey No. 1 (the east half of which is involved in this suit) was patented to John B. Shields, and the patent shows that it was a pre-emption survey. Under the undisputed evidence there was only one John B. Shields pre-emption survey in Jeff Davis county, and this was survey No. 1.

"(13) The west half of survey No. 1 was subdivided into blocks and lots. John B. Shields lived, until he sold, on the west half of survey No. 1. Certain blocks and lots are inventoried in the guardianship estate, along with the east half of survey No. 1, and the same were sold by the guardian at the same time and in the same deed with the sale of the east half of survey No. 1, and were involved in all the probate proceedings, along with the east half of survey No. 1, the description being the same in all of the instruments.

"(14) The defendant W. E. Berry's only interest in this suit is that he was trustee in a deed of trust given by defendant, Tom L. Perrine, on the land in controversy."

On the foregoing facts the trial court rendered judgment for the land in controversy in favor of appellee, Perrine, and in favor of Berry for his costs.

On the trial of the case, the court permitted James Stewart to testify that he was well acquainted with the pre-emption surveys in Jeff Davis county and that there was only one pre-emption survey in said county in the name of J. B. Shields, and that the number of said survey was No. 1, and that there was no pre-emption survey numbered 7 in said county in the name of J. B. Shields. Appellants make the admission of this evidence the basis of their first assignment of error, and insist that the records themselves are the best and only evidence of what land was sold, and that the evidence of the witness was a change, contradiction, and impeachment of the record by parol. It will be seen from the above findings of fact that the controversy in this case grows out of the discrepancies in the probate proceedings, in the matters of description of the lands of the estate of said minors in an effort to make sale of said lands by order of the probate court. John B. Shields acquired title to 160 acres of land in Presidio county, now Jeff Davis county, the description of said land in the patent being survey No. 1 and as a preemption survey, and the estate owned 80 acres of land, the east one-half of said survey No. 1, subject to an estate for life, in John B. Shields, the father and guardian of the persons and estates of said minors, in one-third of the lands of the estate, with remainder to said minors and their descendants. Subsequent to the order of the probate court, confirming the sale reported by the guardian in 1891, John B. Shields conveyed his estate for life and as guardian of the estate of said minors, and, based on the confirmation order of sale of the probate court, conveyed to George H. Perrine, father of appellee, "in Jeff Davis county, the east half of survey No. 1, known as the John B. Shields homestead or pre-emption survey." Perrine went into possession, and he and appellee have since then continuously remained in possession, cultivating and using same and paying the taxes due thereon. In the latter part of the twelfth finding of fact, the trial court found that "under the undisputed evidence, there was only one John B. Shields pre-emption survey in Jeff Davis county, and this is survey No. 1," and the agreed statement of facts brought up to this court, instead of the testimony of the witnesses, in the latter part of the seventeenth paragraph, in addition to the findings of the trial court above, adds to that finding the following:

"And there is no pre-emption or homestead survey in Jeff Davis county numbered 7 in the name of John B. Shields."

It is presumably to these facts that the witness Stewart testified. The cases to which we have been referred as sustaining appellant's contention are not in point, but are cases in which there is a total want of description, or no ambiguity in the description given, or conflict in the calls which suggest a mistake. To sustain the assignment, we must hold that the evidence of Stewart was irrelevant, immaterial, and incompetent, and changed, contradicted, or impeached the records in the...