Withers v. Republic Nat. Bank of Dallas

• Decision Date: 12 July 1951
• Docket Number: No. 4660,4660
• Citation: Withers v. Republic Nat. Bank of Dallas, 248 S.W.2d 271 (Tex. Ct. App. 1951)
• Parties: WITHERS et al. v. REPUBLIC NAT. BANK OF DALLAS et al.
• Court: Texas Civil Court of Appeals

Page 271

248 S.W.2d 271

WITHERS et al. v.REPUBLIC NAT. BANK OF DALLAS et al.

No. 4660.

Court of Civil Appeals of Texas, Beaumont.

July 12, 1951.

Rehearing Denied April 2, 1952.

A. M. Huffman, Beaumont, Sam G. Croom, Houston, for appellant.

Murfee & Crystal, Houston, F. K. Dougharty and P. C. Mathews, Liberty, for appellee.

WALKER, Justice.

The action is in trespass to try title; the land in suit is in the Romayor grant in Liberty County.Not all of the parties to the suit are parties to the appeal, but our discussion is limited to the parties to, and the issues raised on, the appeal.

The appellants are three of the defendants, namely, C. I. Withers, Harvey Collins and B. A. Skipper.Defendant Withers was also a cross-plaintiff, the cross-defendants being the plaintiff and another defendant, P. A. Racki.Defendant Skipper claims title under defendant Withers by virtue of a deed to him from Withers, dated July 30, 1945.The nature of defendant Collins' claims is not made clear but the parties have treated him as having a joint interest with the other appellants and we assume that he, too, claims under defendant Withers.

The appellees are the plaintiff(and cross-defendant to Withers' cross action), the Republic National Bank of Dallas, suing as trustee and independent executor of the estate of Wirt Davis, deceased, and the aforesaid defendantP. A. Racki.There is no issue between plaintiff and Racki on this appeal; and Racki is a party to this appeal only in his capacity of a cross-defendant to Withers' cross action.

With the appellee Racki, named as appellees with him in his brief and asserting a joint interest with him as appellees are two other persons who were also defendants to plaintiff's suit, namely, R. D. McDonald and Mae C. McDonald, individually and as independent executrix of the estate of Arch McDonald.As we construe the record, these two persons are not parties to the appeal and they will be disregarded except as the discussion of the points of error asserted against Racki requires that they be mentioned.

The petition contained the formal allegations of trespass to try title and also alleged the several statutes of limitation.The plaintiff, Republic National Bank as aforesaid, prayed recovery of title to and possession of a tract of 1,399.5 acres of land (to which we shall refer as 1,400 acres) in the shape of a parallelogram, located in the southeastern corner of that part of the Romayor grant in Liberty County known as the Hanrick League.From the southeastern corner of the Hanrick league as the 1,400 acre tract is described in the petition, the eastern line of this tract extends northward 1,425 varas along the eastern line of the Romayor grant, and the southern line of this tract extends westward 5,548 varas along the southern line of the Hanrick league.The plaintiff alleged that the southeastern and southwestern corners of this 1,400 acres were at certain identificable points on the ground, but, in the alternative, that the 1,400 acre tract was to be located on the ground wherever the relevant corners and lines of the Hanrick league were located.

Appellee Racki, defendant to plaintiff's suit and cross-defendant to appellant Withers' cross action, filed a general denial and a plea of 'not guilty' in response to the petition and also, to the cross action.His chain of title is not in proof; but the evidence shows that he claims title to a tract of 531.17 acres in the shape of a parallelogram located in the northeastern corner of the Hanrick league, within the Romayor grant.This claim of title is based upon a conveyance to him from R. D. McDonald, Arch McDonald and L. A. McDonald dated December 4, 1930.Racki claims that this tract is so located on the ground that it adjoins the northern line claimed by the plaintiff for the northern line of the 1,400 acre tract sued for by plaintiff.

Appellants Withers, Collins and Skipper were, as we have stated, defendants to the plaintiff's suit.Skipper filed an answer in which he plead 'not guilty' and next, an allegation adopting the defensive allegations of Withers.He prayed for no affirmative relief and on the pleadings, the only issues on this appeal to which he is a party run between him and the plaintiff.Appellants Withers and Collins, with two other defendants who disclaimed, filed an answer in which they plead 'not guilty' and the several statutes of limitation.Withers and Collins also filed a cross action against the plaintiff and Racki; but Collins dismissed his cross action.Withers, as cross-plaintiff, plead the formal allegations of trespass to try title and the several statutes of limitation, and asserted title to the tract for which plaintiff sued.In the alternative, he asserted title to four tracts described by metes and bounds, which, as described, covered 620 acres, more or less.These four tracts formed an unbroken block of land, most of which lay upon the eastern end of the 1,400 acres located as plaintiff claimed; but a part of two, entitled 'first tract' and 'second tract' in Withers' cross action, extended a short distance beyond the north line claimed by plaintiff for the 1,400 acre tract and into the tract claimed by Racki, as Racki located that tract.

By supplemental petition, plaintiff plead as res judicata and estoppel a prior judgment of the trial court rendered in March, 1913, in CauseNo. 4348, styled Camilla G. Davis v. Henry H. Hughes et al., which is discussed hereinafter.Appellants Withers and Collins, as cross-defendants, filed a supplemental answer in response.

The trial court instructed the jury to return a verdict in behalf of plaintiff against appellants Withers, Collins and Skipper for the 1,400 acre tract of land sued for by plaintiff, described by metes and bounds and fixed and located on the ground as plaintiff alleged it to be.The trial court also instructed the jury in general terms, without referring to any land, to return a verdict against Withers on his cross action against the plaintiff and Racki.The jury returned a verdict as instructed.

On this verdict the trial court rendered judgment in behalf of plaintiff against appellants Withers, Collins and Skipper for the 1,400 acres sued for by plaintiff, describing it by metes and bounds and by reference to objects on the ground as the plaintiff had alleged it to be and as it had been described in the trial court's charge to the jury.

The trial court also rendered judgment in general terms, without referring to any land, that Withers take nothing on his cross action against the plaintiff and Racki.

From this judgment Withers, Collins and Skipper have appealed, assigning seven points of error for reversal.

Conclusions of Fact

The principal issue between the parties to this appeal is one concerning the location of the tract claimed by plaintiff Bank.This issue has grown out of the descriptions of the tracts conveyed in documents contained in plaintiff Bank's chain of title.Appellants have also raised the issue of location against appellee Racki under Point 2; but the location of Racki's tract is not material on this appeal, for reasons stated in our adjudication of Point 2.The following statement from the proof shows the source and nature of the issue of location and the contentions of the parties pertaining thereto.

All of the land in suit is a part of the tract of six leagues which was granted to Joaquin Fernandez de Romayor on April 25, 1831 and in that part of this grant which lies east of the Trinity river.This grant lies partly on one side of the river and partly on the other.The part east of the river apparently covers more than three leagues of land; but the proof does not show how must of the land lies west of the river.Two parties have located the eastern line of the Romayor grant, from the southeastern corner to the northeastern corner of the grant, and have located the northern line of the Romayor grant from the northeastern corner westward to the river.No issue of fact exists concerning the location of these lines and corners.The filed notes of the Romayor grant do not estate the location of the river, but the map of appellants' surveyor Boyles, (which is in evidence and which may be taken to be a convenient summary and expression of his survey, made in 1949) shows that he found the length of the northern line from the northeastern corner to the river to be 11,550.61 varas and the course of this line from this corner to be north 88 deg., 20 min. and 30 sec. west; and this map shows that he found the eastern line of the grant to be 7,573.91 varas long from the southeastern corner to the northeastern corner, the course from the southeastern corner being north 1 deg., 44 min., 40 sec. east.There is some evidence tending to show that the river lay farther west in 1843, at the time of the partition between McKinney and Menard hereinafter mentioned, than it lay in 1949 when Boyles made his survey.

Romayor conveyed this grant to Thomas F. McKinney and Michael B. Menard by a deed dated April 10, 1832; and by cross deeds dated February 1, 1843, McKinney and Menard partitioned the grant.

The part set aside to McKinney is described, in effect, as the northern two leagues of that part of the Romayor grant which is east of the Trinity river.The location of the south line of this tract was not described with reference to objects on the ground; it must be determined by a calculation based upon the area of the tract set aside to McKinney.

The part set aside to Menard was all of the Romayor grant west of the river and that part of the grant east of the river which was south of the part set aside to McKinney, and the south line of McKinney's part was described as it was in the deed to McKinney.This part is described as being four leagues.

There is no evidence that this partition was surveyed on the ground when made, and the earliest surveys in proof which purport to locate on the ground the boundaries of the two...