Miller v. Southland Life Ins. Co.

HIGGINS, Justice. The question which first arises in this case is one of boundary. It arises out of the fact that the west line of the land in controversy measured from the southwest corner of lot 4 north to the Texas & New Orleans right of way is 288 feet in length, whereas the distance call of the west line of the tract conveyed by P. E. Miller by deed dated June 13, 1920, is 228 feet. In this connection appellees invoke the rule often applied that a call for the line of an adjoining survey will prevail over a distance call. They invoke this rule as applicable in view of the call in their field notes for the south boundary line of the right of way of the Texas & New Orleans Railroad Company. Rules for ascertaining boundaries are for the purpose of carrying out the intention of the parties, which intention is to be ascertained upon the face of the grant, read in the light of the surrounding facts and circumstances. It frequently happens that the description of land contained in a deed is consistent upon its face, but when it is attempted to be applied upon the ground inconsistencies in the calls develop. \ln such cases controlling effect is always given to the call which will give effect to and carry out the intention of the'parties and the call inconsistent with and which will defeat that intention is rejected as false regardless of the comparative dignity of the conflicting eallsA The rules of comparative dignity of calls are merely helpful in determining to which of the conflicting calls controlling effect shall be given. 7 Tex. Jur., title Boundaries, §§ 5, 33, 34. [561] The land in controversy — all of block 4 lying south of the Texas & New Orleans Railroad right of way — was owned by P. E. Miller, plaintiff, prior to July 13, 1920, the date of his said deed to the Athens Pottery Company, unincorporated. 1-Ie had owned the land since 1894 and occupied the same as his residence and business homestead. The residence was in the northwest corner of the tract and inclosed by fence. The balance of the land was used as a plant for manufacturing pottery in which business Miller had been engaged since 1900. Miller testified he had the land surveyed in 1920 for the purpose of determining the amount of property to be conveyed to the Athens Pottery Company. The name of the surveyor he had forgotten. The survey was made by himself, Mr. Hable, and the survey- or. They started at the southwest corner of lot 4 and ran north 288 feet to the Texas & New Orleans right of way south boundary line. “A. We measured the measurement of the lot from the S. W. corner up to the T. & N. O. Right of way as being 288 feet. We then made our first line to read 228 feet, so as to leave 60 foot front in front of the residence. “Q. Did you establish any corner or marker at that place? A. Tes, sir, we put down a marker, an old coupling pin, or piece of iron, pounded it into the ground. “Q. Then which direction did you go, Mr. Miller? A. We then run a line East, parallel with the T. & N. O. R. R. Right of way, 100 feet, and made another corner; then we run North 60 feet, back to the T. & N. O. Right of way, and that left a lot 60 X 100 feet in that corner. “Q. 60 X 100 feet? A. Tes, Sir.” Hable testified the surveyor was G. W. Allison. He assisted in making the survey. He believed they began at the northwest corner and went south and marked the point they came to by a pipe driven in the ground; they then went east close to number 5 kiln; from there they went north to the edge of a ditch. He did not know the distance of the two lines they ran on the west and south but they followed the iron fence around the residence. There are some discrepancies in the testimony of Miller and Hable but they both say there was a survey actually made and a stake driven in the west line of lot 4. Miller placed the stake 228 feet north of the southwest corner of lot 4, and Hable places it at the southwest corner of the residence mclosure. It is plain from this a survey was made to carve the residence inclosure out of the lot. Miller also testified that it was not the intention to convey the 60 X 100 residence inclosure ; that the deed omitted two calls. In explanation of his acceptance of the deed for the parcel 50 X 60 in 1926, he testified: “Q. Now, then, you tell the Jury now that it was your intention in the execution of this original deed to leave out a block of land 60 X 100 feet, is that true? A. Tes, sir. “Q. Then from that up to this time have you changed your intentions about it? A. No, sir. “Q. And you have the same intentions now that you had then? A. Tes, Sir, to keep that home lot. “Q. Then I will ask you to tell the Jury why, if it was your intentions then, is your intentions now, at the time that you had this deed drawn up that you only made it cover 50 X 60 feet, instead of 60 X 100 feet? A. Tes, Sir, I can. “Q. I wish you would answer that? A. The residence was pretty well surrounded by a lot of building tile in 1926, and I told the Board of Directors how it was, that two calls had been left out of my Deed, and to correct it, if they would make my lot 50 X 60 feet that would be satisfactory, so far as I was concerned.” It seems that the only lines actually run are those referred to by Miller and Hable. According to Miller’s testimony, corroborated by liable, the stake called for at a distance of 228 feet north of the southwest corner of lot 4 was established as a corner of the land to be conveyed and marked by an iron stake. The distance called for — 228 feet— was the correct distance. It was not a mistaken call and to arbitrarily extend the west line to the right of way line by virtue of the second call in the field notes is not permissible. To do so would be to disregard the dis-l tance call of a line actually surveyed and a corner established by an artificial monument, the location of which can be definitely determined. The north corner of the west line as established upon the ground and marked by a .stake at a distance of 228 feet north of the southwest corner of lot 4, and 60 feet south of the Texas & New Orleans right of way, controls. 7 Tex. Jur., title Boundaries, § 23; Busk v. Manghum, 14 Tex. Civ. App. 621, 37 S. W. 459; Koenigheim v. Miles, 67 Tex. 113, 2. S. W. 81; Castleman v. Pouton, 51 Tex, [562] 84; Burnett v. Burriss, 39 Tex. 501; Allen v. Koepsel, 77 Tex. 505, 14 S. W. 151; Duff v. Moore, 68 Tex. 270, 4 S. W. 530; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317, 318; Lutcher & Moore Dbr. Co. v. Hart (Tex. Civ. App.) 26 S. W. 94; Oliver v. Mahoney, 61 Tex. 611; Koch v. Poerner (Tex. Civ. App.) 55 S. W. 386; Polk v. Renihard (Tex. Civ. App.) 193 S. W. 687; Cox v. Finks (Tex. Civ. App.) 41 S. W. 95. The fact that the iron stake placed at such corner has disappeared is unimportant for its location can be definitely fixed by the distance calls. Thatcher v. Matthews, supra; Houston Oil Co. v. Choate (Tex. Civ. App.) 215 S. W. 118; Wm. M. Rice, etc., v. Gieseke (Tex. Civ. App.) 154 S. W. 612; Temple Lumber Co. v. Felts (Tex. Civ. App.) 260 S. W. 228; Stark v. Stout (Tex. Civ. App.) 174 S. W. 1014; Plowman v. Miller (Tex. Civ. App.) 27 S.W.(2d) 612. In this connection we quote from Thatcher v. Matthews, supra, by Chief Justice Gaines; “Where a stake is once placed, it fixes the corner as conclusively as if marked by natural objects. Owing to the fact that it may be removed or obliterated, its location may be more difficult of proof; but, if proved, it fixes the corner with the same certainty as where it is marked by a permanent object. * * * “A stake is an artificial object, and its mention cannot be disregarded. If the place where it was originally located can be established, the call for distance should yield to it.’’ The trial court evidently assumed that as a matter of law the call for the Texas & New Orleans right of way controlled the distance call of the west line, but upon the facts shown “the question was not purely one of law, to be decided according to the precedence to be given to the different calls, but was a mixed question of law and fact, in determining which, both the rules of law and the evidence as to the footsteps of the surveyor were to be considered.” Castleman v. Pouton, 51 Tex. 84. Upon no other theory can the peremptory charge in favor of the insurance company be sustained. The error indicated necessitates reversal. In view of retrial discussion of the evidence upon other questions presented in the briefs will be avoided. We will briefly state our views upon such other questions. If the boundary and homestead issues be found against the plaintiffs, they are, nevertheless, entitled to recover against M. K. Miller the parcel of land 50 X 60 conveyed to P. E. Miller by the Athens Pottery Company by the unrecorded deed dated September 18, 1925, and acknowledged June 12, 1926, unless M. IC Miller purchased without notice of such deed or has acquired title to such parcel by limitation. The evidence raises an issue as to such notice. It is not disputed the insurance company acquired its lien without notice of such unrecorded deed and its rights are not affected by such deed. The unrecorded deed of June 12, 1926, from P. E. Miller to the Athens Pottery Company enured to the benefit of both defendants if the property then had lost, or if it afterwards lost, its homestead character by abandonment. Upon the homestead issue the law is well settled that the husband has the right, when acting in good faith, to abandon the homestead right and the wife is bound thereby. Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586; Wynne v. Hudson, 66 Tex. 1, 9, 17 S. W. 110, 113; Bishop v. Williams (Tex. Civ. App.) 223 S. W. 512; Sanders v. Crump (Tex. Civ. App.) 23 S.W.(2d) 850. It is also well settled that a conveyance by the husband alone of the homestead situate upon community property passes the title upon a subsequent abandonment of the homestead right in such property. Marler v. Handy, 88 Tex. 421, 31 S. W. 636; McDonald v. Simons (Tex. Com. App.) 280 S. W. 571; Bishop v. Williams (Tex. Civ. App.) 223 S. W. 512. In the present case the evidence is abundantly sufficient to show such an abandonment by P. E. Miller before or after his conveyance to the Athens Pottery Company on July 13, 1920. In fact the evidence may perhaps be regarded as conclusively so showing. Aside from the question of abandonment appellees assert against appellants an estoppel in pais to claim their homestead right. There is no evidence to support such an estoppel against Mrs. Miller. Her homestead right is not prejudiced by any act of her husband which might operate as an es-toppel in pais against him. Speer, Mail tal Rights, §§ 496, 497. For the reason previously indicated we will not discuss the evidence relied upon as creating an estoppel against P. E. Miller. Another reason for not discussing the same is the evident fact that the homestead question [563] was not tried upon any theory of estoppel but upon the issue of abandonment. Reversed and remanded.