Wardlow v. Harmon
| Decision Date | 09 April 1898 |
| Parties | WARDLOW v. HARMON. |
| Court | Texas Court of Appeals |
Appeal from district court, Ellis county; J. E. Dillard, Judge.
Trespass to try title by W. B. Harmon against Amonett Wardlow. From a judgment for the plaintiff, defendant appeals. Reversed.
M. B. Templeton, for appellant. E. P. Anderson, for appellee.
This suit was instituted by W. B. Harmon in the district court of Ellis county, Tex., against appellant, in the form of an ordinary suit of trespass to try title to a tract of land described in the original petition, containing about 13 acres. Appellant (defendant below) first pleaded not guilty, and, by special plea, that the two tracts of land owned by plaintiff and defendant adjoined each other, and that many years ago plaintiff and defendant agreed upon a boundary line between them, and set up a post to indicate said line; and that in 1887 defendant built his fence upon said line so agreed upon, and that the same has been acquiesced in by both plaintiff and defendant as the boundary line between them ever since. The cause was tried at the May term, 1897, and resulted in a verdict for appellee for the land sued for, and a judgment against appellant for $45 rent. Defendant in due time presented his motion for new trial, which was overruled by the court, and he has duly perfected his appeal to this court.
Appellant contends in his first assignment of error that, the suit having been brought in form of trespass to try title, and the defendant having filed a plea of not guilty, that plaintiff is required to deraign title from the sovereignty of the soil. Defendant filed a plea of not guilty, and followed this with a special plea alleging that in 1882 plaintiff and defendant, each owning tracts of land in the Wheeler survey, adjoining each other, agreed upon and established the boundary line between their respective tracts, which has been acquiesced in and recognized as the true division line between them; that defendant claims no land north of said line, but claims the land south of the same. The plaintiff introduced a patent from the state to O. Wheeler, and also deeds from R. M. Wheeler, Robert I. Wheeler, and W. H. Bacon, claiming to be heirs of O. Wheeler, to certain parties, who subsequently conveyed to plaintiff, W. B. Harmon. There was no proof that the parties conveying as the heirs of O. Wheeler were in fact his heirs, or all his heirs. The defendant asked a charge to the effect that the plaintiff must recover, if at all, upon the strength of his own title. The court refused the charge, and treated the suit as one to establish a boundary line. In this there was no error. The defendant's pleading showed the suit was one to establish a boundary line. The whole case-made shows that this was the only issue involved. The defendant's special answer was equivalent to a disclaimer as to all land north of the boundary line therein set up. McBee v. Johnson, 45 Tex. 634; Tate v. Wyatt, 77 Tex. 492, 14 S. W. 25.
We do not think there is any merit in appellant's second, third, and fifth assignments of error, and they are overruled.
Appellant's sixth assignment of error complains of that part of the charge of the court in reference to an agreed line between plaintiff and defendant, in which the court instructed the jury that under certain facts they may find a verdict for plaintiff, unless the defendant, Wardlow, has shown by a preponderance of the evidence that some time during the year 1882, or afterwards, the defendant and plaintiff agreed upon and established a boundary line between their respective tracts of land, and that plaintiff afterwards ratified said agreement, and recognized the line agreed upon by his acts, or by his acquiescence in the acts of defendant with reference to said line. There was evidence tending to show that the parties had established a boundary line between them. The defendant pleaded that the parties had agreed upon and established the boundary line between their respective tracts of land. If the parties did so agree and...
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