Standefer v. Miller

• Decision Date: 26 January 1916
• Docket Number: (No. 909.)
• Citation: 182 S.W. 1149
• Parties: STANDEFER v. MILLER.
• Court: Texas Court of Appeals

182 S.W. 1149

STANDEFER v. MILLER.

(No. 909.)

Court of Civil Appeals of Texas. Amarillo.

January 26, 1916.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Action by J. H. Standefer against W. S. Miller. From a judgment for defendant, plaintiff appeals. Affirmed.

Ferguson & Puckett, of Lubbock, for appellant. W. F. Schenck, of Lubbock, for appellee.

HUFF, C. J.

The appellant, Standefer, brought this action against the appellee, Miller, to recover about 16 acres of land. He alleged that he owns all of section 112 in block 20, except 240 acres off of the west end of the section, and that appellee owns the 240 acres. About January 4, 1906, appellant sold and conveyed to J. F. Robinson 240 acres of the land, to be taken from the west end of the section; that it was stipulated in the deed that it was agreed that it should convey 240 acres off the west end of the survey, so that in no event would the purchaser obtain either more or less than the 240 acres by reason of any change of the boundaries of the section, making it either wider or narrower than it was then estimated. It is alleged also that appellee had both actual and constructive notice of the agreement; also that the section is in fact 1,488 varas wide, and that the 240 acres extends east from the northwest corner of the survey 907 varas; that is, the 240 acres is 907 varas, and extends entirely across the west end, and that the east line is parallel to the west line; that appellee, without right, has placed his east line east of the correct location so as to make the portion claimed by him 256 acres, 16 acres in excess of the amount to which he was entitled, and he has taken possession thereof, asserting title thereto. The prayer is that appellant have judgment, and that his line, with appellee's east line, be established at a point 907 varas 89° 37' east from the northwest corner of the section; thence south to the south line of the section, which is 1,488 varas. The appellee answered by general and special exceptions, general and special denial, not guilty, and set up that he is the owner of the land sought to be recovered under a regular chain of transfers from the state and from the appellant; and he prayed to have the land decreed to him, and that he be quieted in his title. The trial court instructed a verdict for the appellee, in accordance with which judgment was rendered for the appellee as prayed, giving therein the field notes as given in the patent to the land issued to appellee as assignee of appellant. The field notes and description of the land in the deed from Standefer to J. F. Robinson, is as follows:

"240 acres of land off of the west end of section 112, abstract No. 1115, in block 20, in Lubbock county, located about 11 miles S. 23' east of the county seat and more particularly described as follows: Beginning at a stake and earth mound on S. line of Ben Ficklin I a Mfg. Co. survey No. 77 and 379, varas east from the S. W. corner of said sur. and at the most easterly northeast cor. of J. L. Obannon survey No. 104 and the N. W. corner of said survey No. 112, thence east along S. line of sur. No. 77, 967 varas to a point. Thence south 1432 varas to a point in the S. line of said survey 112; thence west 967 varas to S. W. corner of said Sur. No. 112; thence north along W. line of said survey No. 112 to the place of beginning. The intention of this deed being to convey said amount of land off of the west side of said survey No. 112. Said survey 112 block 20 above described was awarded by the commissioner of the General Land Office of the state of Texas, to J. H. Standefer."

The clause, "the intention of this deed being to convey said amount of land off of the west side of said survey No. 112," is not included in the description in the deed from Robinson to Miller.

Appellant presents three assignments of error: (1) That the court erred in excluding the evidence offered by appellant to show the intention of the parties to the above deed, dated January 4, 1906, and to identify the land intended to be conveyed by the deed; (2) that it was error to direct a verdict for appellee, thereby placing a construction on the deed in violation of its express terms; (3) that the court erred in refusing appellant's charge to find for him because the deed conveys only 240 acres, which the deed shows was the expressed intention of the parties, and that it is admitted that appellee claims 255 acres, and by reason of the ambiguity caused by changing the boundaries of the land conveyed. The evidence offered by appellant and rejected was to the effect that when the deed was made by appellant to Robinson, the land was not surveyed and the line and corners to section 112 established. At that time there had been two or three surveys of the adjoining surveys, and none regarded as established; that the appellant made an agreement to sell Robinson 240 acres, with no boundaries agreed upon. The description was not discussed until they went to write the deed. The appellant testified:

"I told Robinson the land might widen or be wider when the lines were established and he said, `Yes, and it might be narrower,' and I said I wanted to put in the deed so that if it widened, I would get my quantity of land and he would get 240 acres of land."

The testimony of W. R. Standefer was offered, to the effect that he had surveyed the land and that he told Miller that the field notes in his deed were not correct, and that the land was wider than it was supposed to be when the deed to Robinson was made. Miller said he had bought 240 acres of land, and at that time did not claim any more. The northwest corner of section 112 was at the trial established 55 or 60 varas north of where it was supposed to be when the deed was made. J. J. Dillard, who wrote the deed, says it was his understanding there was to be 240 acres, no more and no less; that he made the calculation himself so as to get the number of acres; that there was some difference as to where the survey was on the ground, and, being in doubt as to that, he wrote in the deed it was to be 240 acres. The appellee objected to the above testimony, because the statements made were not carried into the deed; that the suit was not brought to reform the deed; that the deed itself is not ambiguous and the evidence would tend to contradict the deed and contradict the field notes thereof; and that the evidence was irrelevant and immaterial. The court thereupon excluded the evidence.

It will be noted the deed calls for the northwest corner and the southwest corner of section 112, for the west line of the land conveyed; that for its south and north line it calls for the adjoining surveys to section 112. The distance from the north line of the section to the south line called for is 1,432 varas; for its east line it called to run with the north and south...