Douthit v. Robinson

Bonner, Associate Justice. The question presented for our decision is this: Did the court below err in deciding that the description of the land claimed by plaintiffs, California Douthit et al., given in the prior recorded deed from Ambrose Douthit to Presley J. Douthit, under which plaintiffs deraign their title, was void for ambiguity, and in rejecting parol evidence to identify the land, as against defendants Robinson et al., who deraign title under the subsequent deed from Ambrose Douthit to King and Johnson This deed from Ambrose Douthit to Presley J. Douthit, after describing the land as six hundred and forty acres in Collin county, state of Texas, part of a tract located, surveyed and patented by virtue of the headright certificate of James Osgood, patent being No. 158, vol. 12, gives this frather description: “ Beginning-at a stake or post one hundred and fifty varas east of an elm tree, on the north boundary line; thence south three-fourths of a mile to a post; thence east, north and west, so as to make six hundred and forty acres, or include the above amount.” However full and precise may be the description of the survey in a deed or field notes, yet to identify it on the ground, resort must be had to personal knowledge or other extrinsic information or evidence. If by this knowledge, information or evidence, when applied to the description contained in the deed or field notes themselves, the land can be reasonably found and identified on the ground, this description should not be held void for am [74] biguity. Blake v. Doherty, 5 Wheat., 359; Hughes v. Sandal, 25 Tex., 162; Booth v. Upshur, 26 Tex., 64; Norris v. Hunt, 51 Tex., 609. The deed under consideration, by which the plaintiffs, California Douthit et al., claim the six hundred and forty ■ acres of land in controversy, states the county in which it is situated; and that it is part of a patented survey, designated by name, number and the volume.' The beginning corner is fixed on the north boundary fine of this established survey at one hundred and fifty varas east of an elm tree. If this tree had been marked so that it could be ascertained and distinguished from other trees, this would have been a compliance with one of the usual and sufficient tests as to locality and identity, generally made by surveyors. If, however, under the circumstances, it otherwise could be reasonably identified, this would be sufficient. It was in evidence that the north line of the Osgood survey called for was in a prairie; that the elm tree pointed out as the one referred to in the deed is an isolated or lone elm, sixteen or .eighteen inches in diameter, and rather a noted tree. Although shown not to have been immediately on the north line, but four hundred and thirteen varas south of it, yet it was also in evidence that there was no elm tree directly on the north line, and that this tree was designated and pointed out at the time the deed was made as the one therein referred to, and that it was supposed to be near the. north line, which had not then been run out, of the Osgood survey. This line being in the prairie, as is well known, the usual tests of marked lines would not be found on the ground. Under these circumstances, we think that the description of the land, as between Ambrose Douthit and Presley J. Douthit, and the plaintiffs who claim under the [75] latter, was sufficient, with the aid of the parol evidence offered, to identify the six hundred and forty acres as claimed by the plaintiffs. Even had the description been less certain the deed might have been used as evidence in a proper proceeding in equity to compel Ambrose Douthit to make a more perfect deed, or to convey the quantity of land actually sold. This deed to Presley J. Douthit having been duly recorded years before the deed from Ambrose Douthit to King and Johnson, under which defendants claim, was constructive notice at least of the former transaction between Ambrose and Presley J. Douthit; and it reasonably appears from the record that the lands claimed by King and Johnson must necessarily have conflicted with the six hundred and forty acres on the north line, claimed by plaintiffs under the prior deed to Presley J. Douthit; and hence defendants would be chargeable with constructive notice of the rights of the plaintiffs. We think that the court erred in deciding that the description in the deed from Ambrose to Presley J. Douthit, of the land claimed by plaintiffs, was void for ambiguity, and in rejecting parol evidence to identify it, for which the judgment below must be reversed and the cause remanded. Reversed and remanded. [Opinion delivered April 15, 1881.]