Opinion
No. 3620.
January 20, 1938. Rehearing Denied February 10, 1938.
Appeal from District Court, Gregg County; I. N. Williams, Judge.
Suit by Clinton A. Beck and others against the Gulf Production Company and others to recover land, wherein the issue was one of boundary. From a judgment in favor of the defendants, the plaintiffs appeal.
Judgment affirmed.
This is a suit by the appellants Clinton A. Beck and others to recover 110 acres of land in Gregg county, a part of the Francis W. Johnson survey. At the close of the evidence the jury was instructed to find for defendants. The issue is one of boundary. The record and briefs are very voluminous. To state and discuss the evidence and many propositions advanced in the briefs would lengthen this opinion beyond all reason. Our conclusions of fact and law will be stated most briefly.
About 1907 James Moore, C. F. Burnsides, I. F. Pritchard, W. H. Doak, and a Judge Snavely acquired the Johnson survey and some adjoining land in the Wm. Tyndale survey. Later Clinton and Clifford Beck acquired an interest in the land. The parties named composed the Gladewater Lumber Company. They were nonresidents of Texas. They also owned a sawmill and its site in Gladewater. The parties selected James Moore as manager. He moved to Texas about 1907 or 1908 with his family. The land for more than 10 miles was bounded by the Sabine river. It was 4 or 5 miles across from west to east. See map of the Johnson survey in State v. Atlantic Oil Producing Co., Tex. Civ. App. 110 S.W.2d 953, at page 956. In April, 1912 the parties agreed in writing to set aside to Judge Snavely 350 acres for his part on the west side of the common land. Moore was charged with the duty of surveying off this 350 acres and marking its lines, which was done. These 350 acres play no further part in the case except that its east line is the west line of block 1 in the partition next mentioned. In April, 1912, Moore, Burnsides, the Becks, Pritchard, and Doak also agreed in writing to partition the balance of the lands owned by them. The agreement provided:
"`to make a partition and division' of `a large tract of land * * * located in Gregg County.' It provides, among other things, as follows:
"It is hereby agreed that the above named, Mr. James Moore, shall during the summer of 1912 make a survey of the large tract of land, containing something near 4,000 acres, above referred to, and divide same into 9 shares as near equal as he can determine."
The land was divided into nine tracts of about 420 acres each as the parties owned in unequal shares. Moore had the land surveyed but it was not until 1914 that the work was all done and partition ready to be made.
On May 9, 1914, Moore wrote Burnsides as follows:
"I will write you in regard to our divide of the land. Mr. Beck is in a hurry; and I believe it is best for all of us, as it will put it in better shape to sell. We can sell then either land or timber; and it may give us some parties to help improve this part of our country. * * * I have looked over our land carefully, and have it divided as near to value as I could, and do not care which pieces I get. I could not tell you which I would rather have, and have no bid to make on any piece.
"I have had nine deeds made out, one for each piece, giving metes and bounds on each, also a map of the whole tract, showing all pieces as they lay, showing all our lines and also a correct survey of the river made by the surveyor. I sent those papers today to I. F. Pritchard; and he will meet you in Marshall. Will let you know what day soon. Each tract is numbered from 1 to 9, beginning near Gladewater. All of our pieces has some timber. The timber for ties has been left standing on all; while the east tract has the best timber, the others are closer to town, and worth more for farming; and I would as soon have them. Those deeds are all ready for signing after purchasers name is on them.
"The law of Texas does not consider unimproved timber land as a homestead, and does not require a wife to sign the deed.
"After signing up those deeds, you can send them here; and I will sign, and have them put on record, and returned."
When the deeds sent by Moore reached Marshall, Ill., the owners, except Moore, gathered there, drew for the various parcels of land, and executed the nine partition deeds. On May 27, 1914, Pritchard wrote Moore as follows:
"Yours recd. this A.M., and your last letter the 3rd this P.M. I did not get to read your last letter to the boys as it was all over and they had gone before I got your letter. Everything went off smoothe. I got in at 3 A.M., found Mr. Beck and his son at Hotel. They were inquiring where to find a good Atty. Mr. Burnsides got in about 10 A.M. and Dr. Doak at 1 P.M. I got them together and read your letters to them, then our signed contract, and stated we must be governed by the signed contract. I made the statement that if any man had a choice and would bid on it, I would let it go to the highest and best bidder. No one wanted to make a bid so I put nine numbers in a hat. As Mr. Beck had three shares, I let him draw first. He took out two numbers and I would not stand for that. He looked at them and said I will keep this one. I made him put them both back and made him draw last. Deeds, map and your instructions to me were mailed to you this P.M., so you will see how it stands. I also got signed instruction for you to sell the mill and bal. of the land, either together or separate. I got as liberal price as I could, as I knew you would get all you could for our property. Tell me what you think of your instructions. Mr. Burnsides and Dr. Doak passed quite a compliment on me the way I held Beck down and managed the divide. All were well satisfied or at least said so. We did not have any atty. You are to have the deeds recorded and return them to the owner. Please tell me what you consider my shares worth and if there is much timber on it, or if there is much young timber on it that will pay to let stand. I wish you would keep an eye on my land and advise me about it from time to time. You will see we signed the deeds in the wrong place at first-those names can be crossed out. I think this will take a burden off you. When you get deeds and look them over write me what you think of our work. Beck's are well scattered."
When Moore received the deeds back he executed same and filed them for record.
Each deed recites that it conveys a tract of land out of the Francis W. Johnson Headright survey (except Nos. 1 and 2, which recite the tract is out of both the Wm. Tyndale and Johnson surveys), being known as blocks No. 1, 2, 3, 4, 5, 6, 7, 8, and 9, "as divided and mapped by said parties interested." Each deed describes the land by metes and bounds.
Clinton Beck acquired block No. 5, which is described in the partition deed to him as follows:
"Situated in Gregg County, Texas, on the Francis W. Johnson Headright Survey, being known as Block No. Five (5) as divided and mapped by said parties interested, and more fully described as follows, to-wit:
"Beginning at the southeast corner of Block No. Four (4) on the north bank of the Sabine river,
"Thence north 1300 vrs. to a corner;
"Thence east 1958 vrs. to a corner;
"Thence south 215 vrs. to a corner;
"Thence east 502 vrs. to a corner;
"Thence south 604 vrs. to a corner;
"Thence west 1628 vrs. to a corner;
"Thence south 550 vrs. to a corner;
"Thence west 500 vrs. to a corner on said river;
"Thence west along said river to the place of beginning containing 420 acres of land, more or less."
By deed dated August 6, 1914, and by the same description, Clinton Beck conveyed block 5 to M. A. Swank, under whom, by mesne conveyances and oil leases, the defendants in the case, appellees here, claim.
The plaintiffs in the case are Clinton and Clifford Beck, Pritchard, and some of the heirs and legal representatives of some of the original owners of the common lands. The said James Moore died in 1916.
L. H. Doty, of Biloxi, Miss., Sterling Williams, W. T. Williams, Jr., and Williams Williams, all of Austin, and John T. Buckley and Angus Wynne, both of Longview, for appellants.
Palmer Bradley, Archie D. Gray, John E. Green, and David Proctor, all of Houston, Taylor, Storey Dotson, of Longview, Sanford, McElwee Cantrell, of Houston, W. M. White, Jr., of Mexia, Dwight Simmons, C. B. Ellard, T. R. Freeman, Turner, Rodgers Winn, and Thompson, Knight, Baker Harris, all of Dallas, Weeks Morrow, of Wichita Falls, and Tarlton Morrow, of Houston, for appellees.
The claim of the plaintiffs is that the land sued for was not embraced in any of the partition deeds and is unpartitioned land owned by the original tenants in common and the heirs and devisees of such of the original owners as are now dead.
The contention of the defendants is that the land is a part of block No. 5.
In brief, the boundary theory of the plaintiffs is that in locating block 5 the course and distance calls in the partition deed to Clinton Beck can alone be considered, and such calls do not embrace the land sued for.
The partition of the land owned by the parties above named was effected by mutual deeds. These deeds must be read and construed together in the light of the circumstances attending their execution. 47 C.J. 274.
Another rule here applicable is stated in Standefer v. Vaughan, Tex. Civ. App. 219 S.W. 484, 489, as follows: "Surveys constituting a block are not to be treated as separate and individual surveys; nor can each tract be located independently of the rest, by its own individual lines or calls or course and distances, but such surveys are to be located together as one block or one large tract. * * * The lines and corners found upon any part of the block of surveys belong to each and every tract of the block, as much as they do to the particular tract which they adjoin."
There can be no doubt the owners of the Johnson survey intended to fully partition the same when they executed the partition deeds. It cannot be supposed, or even surmised, they had any intention of leaving small irregularly shaped unpartitioned tracts of land scattered around over the Johnson survey which would be the case if the various blocks from 1 to 9, inclusive, were located by course and distance calls alone. Witherspoon Oil Co. v. Randolph, Tex.Com.App., 298 S.W. 520, 522; Mitchner v. Holmes, 117 Mo. 185, 22 S.W. 1070, 1075.
The field notes to block 5 and the other 8 blocks upon their face are unambiguous, but when they are applied upon the ground various ambiguities and inconsistencies appear. Under such circumstances parol evidence is admissible to show where on the ground the surveys were actually made. Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629; Blake v. Pure Oil, Tex.Com.App., 100 S.W.2d 1009.
The evidence shows Moore had the outer lines of the Johnson survey and the meanders of the Sabine river surveyed; also the inner lines separating the blocks; that said lines were marked on the ground and stakes driven at corners and on some of the lines between the corners. Later some of the stakes were replaced with railroad angle irons. This is true of some of the stakes marking the boundaries of block 5.
We hold that the old map found among Moore's papers after his death is the map referred to in the partition deeds and in the letters quoted above. This map shows all of the Johnson survey was intended to be divided and was divided. The outer lines of the surveys correspond with the patent calls and the calls of the deed from Cates and others into the cotenants.
Under the circumstances we regard the calls in the partition deeds for the various blocks "as divided and mapped by said parties interested" as a particular call controlling conflicting course and distance calls and that the location of block 5 is as shown upon the old map mentioned. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 1083, 85 A.L.R. 391; Rutherford v. Tracy, 48 Mo. 325, 8 Am.Rep. 104. As so located said block embraces the area here in controversy.
Various persons present at the time the lines were surveyed and marked and stakes driven to mark the corners testified. Their testimony was admissible for the purpose of showing, as it did show, where the lines were actually surveyed and the corners established on the ground. Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629; Texas Pac. Coal Oil Co. v. Crabb, Tex.Com.App., 249 S.W. 835. The testimony of these witnesses as to the location of the marked lines was corroborated by other witnesses. We regard the evidence as conclusively establishing the lines and corners of block 5 to have been surveyed on the ground and located as contended by appellees and embracing the 110 acres sued for.
We hold that, since the old map mentioned shows the land to be in block 5, and since the testimony of the witnesses mentioned also shows the 110 acres to be within the lines of block 5 as surveyed upon the ground, the trial court properly instructed a verdict for the defendants.
Affirmed.