Randolph v. Lewis

RICE, J. Appellant brought this suit in trespass to try title against appellee for 369 acres of land in Madison county, patented to Samuel Bogart, assignee of John W. Holman, on February 14, 1852, by virtue of certificate 347. Appellee relied alone on the plea of the five-year statute of limitation, which was sustained, and judgment entered for him for the land, from which this appeal is taken. The case being tried without a jury, the court filed its conclusions of fact and law, and the questions relied upon for reversal relate to supposed errors in the rulings of the court in the admission of testimony, and urge that the findings of fact are, for several reasons, insufficient to support the judgment, each of which will be considered. The first assignment questions the correctness of the court’s ruling in admitting in evidence, over appellant’s objection, the deed from Donohoe to Lewis, which was offered by appellee in support of his plea of five-year limitation, the objection being that said deed did not embrace the land in controversy, and because the description was insufficient to identify the land, and therefore the same was not a deed duly registered, as required by law; the contention being that there was such a variance between the description of the land in the patent and that in the deed offered in evidence as to defeat appellee’s right to rely upon the latter as basis for support of his plea of limitation. The land was'patented to Sam Bogart, as assignee of John W. Holman, by virtue of certificate No. 347, containing two and a fraction labores of land, located on the east side of the Nevasota river, described by metes and bounds; whereas, said deed conveys all that certain tract or parcel of land in said county and state, being 360 acres, patented to John W. Holman, abstract No. 116, certificate 516, vol. 9, as shown by the land records of Madison county, bounded on the south by the Geo. L. Ramsdale, and on the east by the A. G. Wynne, and on the north by another survey of the G. L. Ramsdale, and on the west by the Navasota river. This deed was filed for record in the deed records of Madison county on the 30th of November, 1905, and recorded December 30, 1905. The assessor’s abstract of Madison county, which was offered in evidence, shows the certificate number to be 347, and it was issued to Sam Bogart, and the patent made to John W. Holman. The county map of Madison county, which was agreed to be correct, and which was offered in evidence, shows that the J. W. Holman survey lies on the east bank of the Navasota river, and is bounded by the surveys named in the deed, except that the Wynne forms all of the east and a small portion of the north boundary; and the surveyor testified that he could locate the land in question by the description given in the deed, and that the Wynne and the two Ramsdale surveys, called for in the deed, were located long prior to the date of the deed from Dono-hoe to Lewis. We think the deed sufficiently describes the land, irrespective of the slight discrepancies as to the certificate number and the name of the original patentee, which may be regarded as surplusage, since the land can be otherwise located by the recitals in the deed. In Bowles v. Smith, 34 S. W. 382, it is said: [649] “Tile object desired in requiring the registry of deeds under the plea of five-year limitation is to give notice to owners of land that persons in possession of it are claiming adversely to them, and, of course, the object will not be attained unless the description of the land is such that it would indicate the land being claimed. Mistake in the name or number of a survey upon which the land may be situated would not necessarily render the deed ineffective under the plea of five-year limitation; for if there be calls for external objects that definitely fix and designate the land, the law is complied with, and the deed is sufficient” (citing Udell v. Peak, 70 Tex. 547, 7 S. W. 786; McCurdy v. Locker, 2 Tex. Civ. App. 220, 20 S. W. 1109). See, also, Basham v. Stude, 128 S. W. 664, where it is said: “If the recitals in the deed, when applied to external objects therein described, identify the land in controversy, although the deed purports to convey land in the Raymond Burford survey (which was a different survey to that named in the deed), it was admissible for the purpose for which it was offered.” Notwithstanding there is a discrepancy between the patent and the deed as to the certificate number and the name of the patentee, still, in the present case the land was otherwise sufficiently described in the deed, we think, to put the owner upon notice that the land was being claimed by appellee, because, disregarding these recitals, the land was so otherwise described in the deed as to identify it with that owned and claimed by appellant. This being true, the court did not err in admitting the deed for the purpose offered. See Stout v. Taul, 71 Tex. 438, 9 S. W. 329; Cleveland v. Smith, 156 S. W. 247; also Griffin v. Houston Oil Co., 149 S. W. 567; Clifton v. Creason, 145 S. W. 323; Eastham v. Gibbs, 125 S. W. 372. Notwithstanding there was no reference in the deed to the assessor’s abstract, there was no reversible error in its introduction over appellant’s objection. It is a public record, and under article 2306, Sayles’ Rev. Stat. (article 3694, R. S. 1911), copies of such records are made admissible. Besides, if there was error, it is harmless, in that the land was otherwise sufficiently identified without reference thereto. The court did not err, we think, in finding as a fact that the defendant had used and enjoyed the land for a sufficient length of time, under deed duly registered, as to give him title to the land under the five-year statute of limitation. The evidence showed that the appellee, immediately after purchasing the land, placed his deed upon record, inclosed the land, and had continuously used it for a period of more than five years as a pasture for cattle, hogs, and goats, paying taxes thereon. Such user is sufficient to show adverse possession. See Hooper v. Acuff, 159 S. W. 934. Pasturing cattle on land inclosed for that purpose, and which is under the exclusive control of the party claiming under the statute, is such use and enjoyment as is sufficient. Hardy Oil Co. v. Burnham, 124 S. W. 221. The evidence fully supports the court’s-finding that the defendant had rendered and paid taxes on the land in controversy for more than five years prior to the commencement of this suit, and was therefore adequate-to support his plea of limitation, for which reason we overrule the fourth assignment. Payment of taxes may be shown by parol or circumstantial evidence. See Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Watson v. Hopkins, 27 Tex. 637; Ochoa v. Miller, 59 Tex. 460; Allen v. Woodson, 60 Tex. 651. It is not necessary that the boundaries in the deed should entirely embrace and inclose the land; a slight failure in this respect would not vitiate the deed, provided the land therein mentioned is otherwise sufficiently described to locate and identify it. The court did not err in its conclusion of law in holding that the defendant was entitled to the land in controversy under the five-year statute of limitation, for the reason that the facts as found by the court and sustained by the record fully warranted his conclusion that defendant’s possession was adverse, and that he was entitled to the land under his plea of limitation. This is true notwithstanding the fact that one side of the survey was not fenced, but was bounded by the Navasota river. See Frazer, v. Seureau, 128 S. W. 649; Dunn v. Taylor, 107 S. W. 956; s. c., 102 Tex. 80, 113 S. W. 265. Nor was it necessary that the land itself should be separately inclosed. It is sufficient if there is a general inclosure, even though other surveys are included therein. See Smith v. Kenney, 54 S. W. 801; Cunningham v. Matthews, 57 S. W. 1115. Finding no error in the proceedings of the trial court, and believing that the judgment is amply supported by the facts in evidence, it is in all things affirmed.