Wilson v. West, 10845.

• Decision Date: 19 March 1941
• Docket Number: No. 10845.,10845.
• Citation: 149 S.W.2d 1026
• Parties: WILSON v. WEST.
• Court: Texas Court of Appeals

Page 1026

149 S.W.2d 1026

WILSON v. WEST.

No. 10845.

Court of Civil Appeals of Texas. San Antonio.

March 19, 1941.

Rehearing Denied April 16, 1941.

Appeal from District Court, Val Verde County, Sixty-Third District; Brian Montague, Judge.

Action in trespass to try title by B. E. Wilson against Massie West. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

L. J. Wardlaw, of Fort Worth, and Boggess & Lowrey, of Del Rio, for appellant.

Jones & Jones, of Del Rio, Davidson & Smith, of Ozona, R. G. Hughes and D. B. Hardeman, both of San Angelo, and A. Morales, Jr., of Del Rio, for appellee.

SMITH, Chief Justice.

Appellant, Wilson, and appellee, West, will be referred to as plaintiff and defendant, respectively, as in the court below.

Plaintiff brought the suit in the form of an action in trespass to try title to recover a strip of land out of the east side of Surveys 119, 120, 121½ and 122, in certain grants in Val Verde County. From an adverse judgment, based on a directed verdict for West, Wilson has appealed.

Prior to the trial, the attorneys for the respective parties entered into written stipulation of facts concerning the title to certain lands which embraced the strip in dispute. Those stipulations were put in evidence without objection. In addition, plaintiff himself testified at great length in support of his claim of title, by limitation, and also offered in evidence a certificate of the Commissioner of the General Land Office of the State, from the records of his office, which, if given effect, would have let in plaintiff's claim of limitation title, under the ten-year statute, if otherwise established by proof of appropriate possession. The trial judge excluded this certificate on the objection that the facts recited therein were in partial conflict with the agreed stipulations, which they were. At the conclusion of the evidence, the trial judge directed a verdict for defendant, as stated.

Defendant has presented his appeal upon two briefed assignments of error. It is first contended that the court erred in excluding the certificate of the Commissioner of the General Land Office, which included recitations that the east one-half of Survey 119, and Surveys 120 and 122, were "bought and fully paid for on the application of Elsey Smith, filed in the General Land Office on the 9th of June, 1906, under the laws regulating the Sale of Public Free School Land." This recitation of fact was in conflict with the stipulation of facts agreed to by the parties and already in evidence without objection, that those three surveys were patented by the State in November, 1929, and "that all of said * * * tracts of land * * * were, prior to the date of the patents thereto, common school lands belonging to the Common School Fund of the State of Texas." The certificate was rejected because of that conceded conflict. Obviously, it was not admissible unless and until the contrary stipulation was nullified by consent or order of court. Plaintiff did not claim surprise at this denouement, or seek relief from the stipulation. The trial judge therefore had no alternative in that situation but to exclude the certificate, as he did. Plaintiff's first assignment of error and the proposition thereunder must be overruled.

We copy plaintiff's second assignment of error, as set out in his brief: "An instructed verdict against the plaintiff in favor of defendant was given because of an agreement that had been made between the respective attorneys for the parties, which was introduced in evidence. The amended motion for new trial sets forth certain grounds and reasons why plaintiff should have been relieved from that agreement and a new trial granted so that upon another trial the plaintiff would have been freed from the agreement. The court abused his discretion in not granting the new trial for the reasons and upon the grounds set forth, and this abuse of discretion is assigned as error. (Fourth ground of amended motion for new trial, Tr. 11-27.)"

By reference to the transcript, we find that the fourth ground of plaintiff's amended motion for new trial is eighteen pages long and includes a full statement of the evidence, both parol and documentary, taken upon the hearing of the amended motion. But plaintiff is restricted to...