Wyman v. Harris

• Decision Date: 06 May 1949
• Docket Number: No. 4584.,4584.
• Citation: 222 S.W.2d 297
• Parties: WYMAN et al. v. HARRIS et al.
• Court: Texas Court of Appeals

Page 297

222 S.W.2d 297

WYMAN et al. v. HARRIS et al.

No. 4584.

Court of Civil Appeals of Texas. Beaumont.

May 6, 1949.

Rehearing Denied June 15, 1949.

Appeal from District Court, Montgomery County; Ernest Coker, Judge.

Action in trespass to try title by Mrs. Mary F. Wyman, and others, against Mike C. Harris and the Atlantic Refining Company, wherein defendant Harris filed a cross-action. From an adverse judgment, plaintiffs appeal.

Judgment in accordance with opinion.

Fountain, Cox & Gaines, Houston, Geo. B. Darden, Conroe, for appellants.

W. C. McClain, Conroe, Pitts & Liles, Conroe, Green & Taylor, Conroe, for appellees.

WALKER, Justice.

This is an action in Trespass to Try Title to land in the P. H. Herndon Survey, Abstract 256, in Montgomery County. It was brought to identify the tract of land described in a prior judgment of the trial court which that court rendered on November 7, 1947, in cause 19211.

Plaintiffs in the present cause are Mrs. Wyman and certain oil and gas lessees of hers. Mrs. Wyman was sole plaintiff in prior cause 19211, and the parties to the present action have agreed that she is the common source of the title to the land involved in the present suit. Mrs. Wyman's title to said land was derived by inheritance from her mother, Mrs. Mary E. Finch, whose sole heir she was. Mrs. Finch died some 40 years prior to the trial of the present action.

Defendants in the present cause are Mike C. Harris and the Atlantic Refining Company. Atlantic was a party defendant to prior cause 19211, claiming then and in the present cause an oil and gas leasehold interest under other defendants to said prior cause 19211. The other defendants to prior cause 19211 are not parties to the present action. Defendant Harris was not a party to prior cause 19211, but has acquired title to land which he claims to be the tract described in the prior judgment. Whether he has done so, or whether the deed under which he holds describes a tract which lies east of the tract described in said prior judgment, except as it overlaps an infinitesimal segment of the northeast corner of said latter tract, is a question which we need not and do not decide on the present appeal. Defendant Harris has disclaimed title to all land in the Herndon Survey other than the tract described in the prior judgment and in the deed under which he holds.

Defendant Harris filed action over against his grantors on their warranty. The identity and location of the tract they have conveyed to him will doubtless be a question to be determined upon the trial of that cross action.

It seems evident that prior cause 19211 was filed subsequent to the survey made by J. M. Hall, Jr., during February, 1939. The present action was filed subsequent to November 7, 1947, the date of the prior judgment.

The pleadings in prior cause 19211 and the Special Issues submitted in that cause, as copied in the judgment, indicate that said cause arose out of a dispute concerning the location of the boundary between the eastern and western halves of the Herndon Survey. This Survey was partitioned on March 18, 1904, by H. D. Cowan, and Mrs. Mary E. Finch, Plaintiff Wyman's mother. To effect this partition, H. D. Cowan conveyed the eastern half of the survey to Mrs. Finch, and Mrs. Finch and her husband conveyed the western half of the survey to Cowan, each tract being described by metes and bounds in considerable detail. According to these deeds, the Herndon Survey is bounded on the west by the San Jacinto River, and it runs eastwardly on the course North 75 degrees East. The North line is 2800 varas long; the South line is 4792 varas long, and the eastern boundary, which runs at right angles to the north and south boundaries, is 2842 varas long. The area of each half of the survey is stated to be "468 acres, more or less", and the dividing line is described as running on the course South 62 deg. 30' East from the middle of the north boundary to the middle of the south boundary. This description is made up from recitations in the two partition deeds just mentioned. The proof adduced on the trial of the present action locates the Herndon Survey on the ground in the same general position as that shown by these deeds, but shows that the boundaries of the survey run on courses slightly different from those stated in said deeds, and that these deeds did not correctly state the length of the boundaries.

However, cause 19211 was more than a boundary dispute. (H. D. Cowan was a party defendant to this prior suit, and the other defendants seem to have claimed under him). Title to that segment of the Herndon Survey, which was described in the judgment rendered in said cause, was independently put in issue. We note, for instance, that the parties pleaded limitation titles to this tract, and that the jury found, in effect, that the defendants in prior cause 19211 had acquired a limitation title to at least some of said tract under the 10 year statute.

Pursuant to the verdict of the jury, the trial court rendered judgment in prior cause 19211 in behalf of Defendants, from which we quote in part as follows:

"It is therefore ordered, adjudged and decreed by the court that the plaintiff, Mrs. Mary F. Wyman, a feme sole, take nothing as against the defendants, H. D. Cowan, Frank Etter, W. Kuykendall, J. L. Pitts, J. Robert Liles, Mrs. T. D. Hagerman, and The Atlantic Refining Company, in her suit for the title and possession of the following described tract of land, to-wit:

"Being 22 acres of land, more or less, out of the P. H. Herndon Survey, Abstract No. 256, in Montgomery County, Texas;

"Beginning on the South line of said Herndon Survey and the North line of the John McDillon Survey, and running North 62 deg. 30 min. West with the old division line between Mrs. Mary F. Wyman and Frank Etter to a point in the North line of the P. H. Herndon Survey, 1400 vrs. from the river to this point, according to a map and plat of the west side of the P. H. Herndon Survey placed of record by H. D. Cowan, May 9, 1904, and recorded in Vol. 33, page 47, Deed Records of Montgomery County, Texas;

"Thence North 75 E. 201 vrs. to a stake;

"Thence South about 75 E. 1900 vrs. to a point in the South line of the P. H. Herndon Survey;

"Thence west 70 vrs. on the south line of the P. H. Herndon Survey, to the place of beginning, containing twenty-two (22) acres of land, more or less."

This description was copied from Mrs. Wyman's petition. The petition contained another descriptive element immediately following the description quoted, which the judgment omits; this omitted allegation read: "The above described and foregoing land is the same land that is fenced and is now being used by the Defendant, W. Kuykendall." This omission is the only variance between the description plead by Mrs. Wyman and that used in the trial court's judgment to identify the land in suit in prior cause 19211.

The judgment in prior cause 19211 also quoted the special issues submitted to the jury, and since the language of at least one of these, namely, Issue 6, is of some significance here, we copy these Issues and the jury's answers thereto, as follows:

"(No. 1) Do you find from a preponderance of the evidence that in the year 1904 R. D. Blackshear ran a line from the south line of the P. H. Herndon Survey to the north line of said survey, marking and identifying said line upon the ground at the time of running said line? You will answer this question `Yes' or `No'. (Answered: No)

"(Issues 2 to 6, inclusive, following Issue 1 were conditioned upon an affirmative answer to Issue 1, and were not answered by the jury)

"(No. 2) Do you find from a preponderance of the evidence that the defendant H. D. Cowan from the year 1904 observed and recognized said line as the dividing line between the east and west halves of the P. H. Herndon Survey? (Unanswered)

"(No. 3) Do you find from a preponderance of the evidence that the defendant T. D. Hagerman from the time that he purchased an undivided one-fourth interest in the west half of the P. H. Herndon Survey observed and recognized said line as the dividing line between the east and west halves of said survey? (Unanswered)

"(No. 4) Do you find from a preponderance of the evidence that the defendant Frank M. L. Etter from the time that he purchased an undivided one-half interest in the west half of the P. H. Herndon Survey observed and recognized said line as the dividing line between the east and west halves of said survey? (Unanswered).

"(No. 5) Do you find from a preponderance of the evidence that the defendant W. Kuykendall from the time that he purchased an undivided one-eighth interest in the west half of the P. H. Herndon Survey observed and recognized said line as the dividing line between the east and west halves of said survey? (Unanswered)

"(No. 6) Do you find from a preponderance of the evidence that the twenty two acres of land out of the P. H. Herndon Survey sued for herein is situated on the east half of said survey?

"(The concluding Issue, No. 7, was answered)

"(No. 7) Do you find from a preponderance of the evidence that the defendants in this case and those under whom they hold and whose estates they claim to have had and held peaceable and adverse possession of the land and premises enclosed by the defendants continuously for a period of ten years prior to the filing of this suit, which was filed on the 6th day of March, 1947, using, cultivating or enjoying the same continuously, openly, notoriously and adversely during the same period of time? (Answered: Yes)"

Subsequent to the rendition of the aforesaid judgment in prior cause 19211, Defendant Mike C. Harris acquired title to the land he claims in the present action. It is unnecessary to state the details of the chain of title under which Defendant Harris claims, or any other matter concerning the deed or deeds constituting that chain of title. Defendant Harris paid $1500 for this tract of...