Taffinder v. Merrell

• Decision Date: 27 April 1898
• Parties: TAFFINDER et al. v. MERRELL et al.
• Court: Texas Court of Appeals

Page 477

45 S.W. 477

TAFFINDER et al. v. MERRELL et al.

Court of Civil Appeals of Texas.

April 27, 1898.

Appeal from district court, Hamilton county; J. S. Straughan, Judge.

Action by L. P. Taffinder and another against W. M. Merrell and another. Martha H. Carden and others intervened. Judgment for defendants. Plaintiffs and interveners appeal. Reversed.

G. R. Freeman and M. Logan, for appellants. J. C. Main, for appellee Merrell.

KEY, J.

L. P. and Samuel Taffinder sued in trespass to try title, to recover from W. M. Merrell and J. T. James an undivided half of lot No. 5 in block No. 5, in the town of Hamilton, Hamilton county, Tex. Martha H., James S., William K., John G., and Samuel P. Carden intervened, claiming an undivided one-fourth of the north half of said lot. The defendant Merrell disclaimed as to the south half of the lot, pleaded not guilty, title by three, five, and ten years' limitation, and also through certain probate proceedings and sales made thereunder. He also impleaded C. C. Bumguardner, his warrantor, and the latter impleaded H. A. Shipman, his warrantor. The plaintiffs dismissed as to the defendant James. There was a jury trial, which resulted in a general verdict and judgment for the defendant, and the plaintiffs and interveners have appealed.

The parties agreed that James C. Taffinder and his wife, Martha C. Taffinder (afterwards Martha C. Bivens), were common source of title. After the death of James C. Taffinder, his wife, Martha C., married A. Bivens, by whom she had three children. The defendant attempted to show a division of the Taffinder-Bivens estate by the probate court of Coryell county, by which it is claimed that the lot in question was set aside and decreed to the Bivens children; and the defendant also undertook to show a regular chain of title from the Bivens children down to himself. In reference to the alleged partition, the court below instructed the jury as follows: "You are further instructed that if you believe from the evidence before you that there was a partition of the estate of Jas. C. Taffinder and Martha C. Bivens, or of Martha C. Bivens, in the probate court of Coryell county, Texas, and if, in said partition proceedings, certain property was allotted to and set over to the plaintiffs and to said Mary J. Carden, and if the lot in controversy was allotted and set apart to the said Bivens heirs, and if, in pursuance of said partition, the said plaintiffs and Mary J. Carden went into the possession and use of said property so allotted to them, and acquiesced in said partition, then, in such case, the plaintiffs or interveners could not recover in this case; and, if you so find, you will return a verdict for the defendant, and in such case it would be immaterial whether defendant held the title to said lot from the Bivens heirs or not."

The decree referred to did not vest the legal title to the property in controversy in the Bivens children. The only property in Hamilton county that the decree refers to is described as follows: "Two town lots in the town and county of Hamilton, Texas." It is true, the decree refers to and approves the report of the commissioners appointed to partition the estate; but said report is equally indefinite, and describes the Hamilton county property that was set aside to the Bivens children as "two lots in the town of Hamilton." These descriptions are too indefinite and uncertain to apply to any particular lots, in the town of Hamilton or elsewhere. This defect of description is what is termed a "patent ambiguity," and cannot be aided by other evidence, so as to make the decree pass the legal title to the property. Devl. Deeds, § 1010. However, appellee attempted to show...