Wing v. Red

• Decision Date: 16 February 1912
• Citation: 145 S.W. 301
• Parties: WING v. RED et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

145 S.W. 301

WING v. RED et al.^†

Court of Civil Appeals of Texas. Galveston.

February 16, 1912.

Rehearing Denied March 7, 1912.

Appeal from District Court, Jasper County; W. B. Powell, Judge.

Action by Wilson D. Wing against Button Red and others. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

H. C. Howell, for appellant. W. W. Blake, for appellee Charles Red.

PLEASANTS, C. J.

This is a suit for partition, brought by appellant against appellees.

The land involved is a tract of 419 acres, less 3½ acres, a part of the Joseph Lane league in Jasper county. Plaintiff alleges that said tract of 419 acres, less the 3½ acres, both of which tracts are described in the petition, is owned jointly by himself and the defendants, Button Red, George Red, Harriet Rhodes, Pattie Southwell, Fannie Horn, Charles Red, and Dennis Red; that the plaintiff is the owner of an undivided one-half, or 207¾ acres, of said land, and defendants own the remaining one-half. The defendants Button Red and Dennis Red answered plaintiff's petition by general denial. None of the other defendants, except Charles Red, filed any answer. This last-named defendant filed an answer, in which he admits that plaintiff is a tenant in common with himself and other defendants in a part of the tract of land described in the petition, but denies that plaintiff owns an undivided one-half of said land, as alleged in the petition. It is then averred, in substance, that the land described in plaintiff's petition is a part of a 1,500-acre tract that was formerly owned by John Red and his wife, Rose, both of whom are now deceased, and that said defendant, on February 14, 1871, purchased from John Red a tract of 200 acres, to be taken out of the southeast corner of said 1,500-acre tract; "that said defendant, immediately after his purchase, took possession of his said land and improved the same for a homestead, and has resided on said land as a homestead since the date of his said purchase." Here follows field notes of the 200 acres claimed by the defendant under his said purchase, which shows that said 200 acres conflicts, to the extent of 114 acres, with the 419 acres described in plaintiff's petition. This defendant further pleads title by 10 years' limitation to said 200-acre tract, and prays that upon a hearing he be quieted in his title thereto, and that the remainder of said 419-acre tract, described in plaintiff's petition, be partitioned between plaintiff and the defendants herein, all of whom hold, under John Red and his said wife, title in common to the remainder of said 419 acres. The interest claimed by this defendant in said remainder being two-twenty-eighths thereof, which he prays shall be set apart to him and located adjoining his 200-acre tract before described. He also prays "for such other and further relief as may seem to the court equitable."

The trial in the court below, without a jury, resulted in a judgment in favor of this defendant for 200 acres of land taken out of the 1,500-acre tract, and including 114 acres of the land described in the petition, but not located in accordance with the field notes contained in defendant's answer. The remainder of said 419 acres was ordered partitioned between the plaintiff and the defendants, other than Charles Red, who was denied any interest therein. Plaintiff alone prosecutes this appeal.

The facts disclosed by the evidence are as follows:

The land in controversy is a part of a tract of 1,500 acres on the Joseph Lane survey, which was conveyed to John Red by William Traylor and wife, Elizabeth Traylor, by deed of date January 2, 1871. This deed was duly recorded in the deed records of Jasper county on June 21, 1871. On February 4, 1871, John Red, by his deed of said date, conveyed to the defendant Charles Red 200 acres out of this 1,500-acre tract; said 200 acres being described as follows: "Two hundred acres of land to be surveyed out of the southeast corner of a survey of land deeded to me by William Traylor and his wife, Elizabeth Traylor, lying in Jasper county on Everett's creek about seven miles S. E. from the town of Jasper." This deed was duly recorded in the deed records of Jasper county on June 21, 1871.

A short time after his purchase, Charles Red built a house and made other improvements on the southeast corner of the 1,500-acre tract, and has resided there ever since that time. Fifteen or 20 years before the trial in the court below, which occurred in December, 1910, he had a surveyor to run the lines of 200 acres of land, which included his improvements, and which he supposed was included within the boundaries of the 1,500-acre survey; but, owing to a mistake as to the true location of the south line of the Joseph Lane survey, which is also the south line of the 1,500-acre tract, 114 acres of the 200 acres so surveyed for defendant was not within the boundaries of the 1,500-acre tract, but was located on a survey adjoining the Joseph Lane on the south. The surveyor discovered there was doubt as to the true location of the Joseph Lane line before he completed the survey of the 200 acres, and for this reason did not run the closing line of the 200-acre tract, which was its west line, and informed Charles Red of his reason for not completing the survey. The evidence shows that, notwithstanding the surveyor's expressions of doubt as to the true location of the Joseph Lane line, the defendant Charles Red and John Red, and others who acquired interests in the 1,500-acre tract under him, all believed until a comparatively recent date that the south line of the Joseph Lane survey was located as it was supposed to be when the 200 acres was attempted to be located as before shown.

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