Snow v. Starr

• Decision Date: 13 December 1889
• Citation: 12 S.W. 673
• Parties: SNOW <I>et al.</I> <I>v.</I> STARR <I>et al.</I>
• Court: Texas Supreme Court

Page 673

12 S.W. 673

SNOW et al.v.

STARR et al.

Supreme Court of Texas.

December 13, 1889.

Appeal from district court, Kaufman county; ANSON RAINEY, Judge.

J. S. Woods and J. D. Cunningham, for appellants. F. B. Sexton and Wood & Charlton, for appellees.

GAINES, J.

This suit was an action of trespass to try title, brought by appellees, to recover of appellant Snow two quarter sections of a survey of land in Kaufman county, consisting of 640 acres, patented by virtue of a certificate issued to Thomas Toby. The defendant pleaded not guilty, and the statute of limitations of 10 years. Appellant Ruthie Wright, joined by her husband, intervened in the suit, and resisted plaintiffs' recovery, making common cause with the defendant. The defendant claimed title under a deed from one J. M. Kinchen. Kinchen had been married, and his wife had died before the conveyance to Snow. Ruthie Wright, who was a daughter of Kinchen and of his deceased wife, claimed as heir of her mother, alleging that the property was acquired during the existence of the marriage between her parents.

When the case was called for trial, and the parties had announced ready, the defendant and intervenor Ruthie Wright each demanded a separate list of the jury, and the privilege of challenging peremptorily six of the number, by striking their names therefrom. The judge refused to grant the demand, assigning as the ground of his ruling that he knew from a previous trial that the defendant and intervenors had agreed upon a judgment as between themselves, and that they were making common cause as against the plaintiffs. We need not inquire whether the ruling was correct or not. The record shows that the six challenges allowed appellants by the court were exhausted, but it does not appear that the name of any juror remained upon the list whom either of them desired to challenge. If there was error, it was immaterial. Railway Co. v. Terrell, 69 Tex. 650, 7 S. W. Rep. 670.

The plaintiffs claimed under a chain of title which was as follows: (1) A patent of the survey of 640 acres to W. P. King, assignee; (2) a sale by Nathaniel Amory, as administrator of W. P. King's estate, to plaintiff James H. Starr, by virtue of an order of the probate court of Nacogdoches county; (3) a deed from Starr to Amory to an undivided half interest in the section; and (4) a deed of partition between Starr and William Perkins, as surviving executor of and trustee under the will of Amory, which purported to convey to Starr in severalty the land in controversy. Appellant Mrs. Pope claimed as devisee under the will of her mother, the deceased wife of Starr. Appellants objected to the introduction in evidence of the transcript of the proceedings of the probate court of Nacogdoches county, upon several grounds, none of which, in our opinion, are well taken. The main grounds were that the order of sale, the proceedings confirming the sale, and the administrator's deed did not sufficiently describe the land. The evidence shows that at the time the section which embraces the land in controversy was surveyed three other sections were located, all lying together in a square, and were numbered, 1, 2, 3, and 4, respectively. All were surveyed by virtue of Toby scrip. Nos. 1 and 4 belonged to the estate of W. P. King. The order of sale which was granted upon the prayer of the administrator directs him to make a sale of all the lands belonging to the estate. The four sections last named appear upon the inventory under the following description: "(1 and 4) Two sections of land, 640 acres, numbered one and four, surveyed on the waters of the Trinity river, by virtue of Toby land-scrip standing in the name of W. P. King. (3 and 2) Two sections, Nos. 3 and 2, adjoining above, in name of King & Nelson; King's interest being one-half." In his account of sales the administrator describes the land as follows: "Sold to James H. Starr two sections of land, 640 acres each, numbering 1 and 4, on the waters of Trinity river, surveyed by virtue of the Toby landscrip, standing in the name of Wm. P. King." The following is the description in the deed from the administrator to Starr: "Situated in the north-western part of said Nacogdoches county, on the waters of the Bois d' Arc fork of the Trinity river, and near the junction of said Bois d' Arc fork with the Trinity river, the same being two sections of land containing each 640 acres, one of which sections is known as number one (1) and the other as number four, (4,) both surveyed by virtue of land-scrip issued by the governor of Texas on the 20th of December, 1886, to Thomas Toby, being two pieces of 640 acres each, which sections or tracts of land are more fully described in the records of the county surveyor's office of said Nacogdoches county on pages 83 and 84 of Book C, where the field-notes of the same are recorded." Under the assignment which complains of the ruling of the court in admitting this evidence it is urged that the field-notes should have been given. This was unnecessary. The rule is that the description must be certain, but the maxim that that is certain which can be made certain applies. When land has been located, surveyed, and patented, the records of the several offices through which the title has been obtained afford a description indisputably certain. It follows that in the conveyance of all of an original survey any description is sufficient which purports to convey the entire survey, and points out with certainty the particular survey intended to be conveyed. Bowles v. Beal, 60 Tex. 322. There was no error in admitting the evidence.

It is unnecessary to pass upon the question whether the will of Nathaniel Amory, and the deed of partition between his executor and trustee and plaintiff Starr were correctly admitted or not. If the deed of partition was invalid, the plaintiffs still held each an undivided one-fourth interest in the land in controversy, and they were entitled to recover in this action against the defendant and the intervenor, both of whom claimed solely under a title having its origin in a different source.

Section 1, the land in controversy, and section 3 of the four surveys above named lie contiguous. J. M. Kinchen, under whom defendant and intervenor claimed, settled near the dividing line in 1848 or 1849, without any claim or title to the land so occupied, whatever, and remained in possession until the year 1869 or 1870, when he moved away. The great weight of the testimony shows that his improvements were upon both surveys. His house was probably on section 1, but his inclosure, most likely, extended over on section 3. During the years extending from 1867 to 1879, inclusive, he conveyed all of the latter section, in different parcels, to sundry persons. Plaintiffs introduced testimony to the effect that after he had removed from the land in that locality he said he did not claim section 1. In order to rebut this, appellants offered to prove by two witnesses that after Kinchen's removal, he continued to claim the land in controversy as his own. This testimony was rejected by the court, and in the ruling there was no error. The declarations of a grantor in a deed, made before its execution, in disparagement of his title, are admissible against his grantee; but his self-serving declarations cannot be admitted. The appellants had the right to rebut the evidence of plaintiffs, but the rebutting evidence should have been legal.

There was a great mass of conflicting testimony as to the exact locality of Kinchen's improvements with reference to the dividing line between sections 1 and 3, and especially as to the location of the house in which he dwelt. Appellants introduced a number of witnesses to show that the house was on section 1. The plaintiffs, in rebuttal, introduced a son of J. M. Kinchen, who testified that the house was built in 1853, on section 3. After plaintiffs had closed their testimony in rebuttal, the appellants offered to prove by a witness that the house was built in 1849, on the land in controversy. This testimony was excluded by the court on the ground that it should have been introduced by appellants in chief, and not in rebuttal of the plaintiffs' rebutting evidence. The witnesses were numerous; and the court, during the trial, announced to the parties that they must introduce all their testimony in chief, except such as was strictly...