Keller v. Hollingsworth

HEHRY, Associate J ustice. —Appellants brought this suit to recover an undivided two-thirds interest in a town lot in the city of Port Worth, part of a survey patented by the State of Texas to Sarah Gray Jennings. The cause was tried by the court without a jury. The parties agreed in writing that the S. G. Jennings patent was their common source of title. The pleadings of the parties describe the land differently, but appellants admit that the land described in defendant's pleadings is the identical land sued for by them. The evidence offered by plaintiffs to establish the first two links in their chain of title from the agreed common source was the deposition of one Hance, who testified that T. J. Jennings and wife (without stating the name of the wife or otherwise identifying her) conveyed to him 10 acres of land, described as follows: “Begin 282) varas south from the northeast corner of said S. G. Jennings survey, a stake in the east line of said survey; thence south with the said line 282) varas; thence west 200 varas; thence north 282) varas; thence east 200 varas to the place of beginning.” ■This witness testified that he conveyed to E. M. Mitchell out of said 10-acre tract 2) acres, described as follows: “Begin 281) varas south from the northeast corner of the S. G. Jennings survey; thence south with the east line of said survey 141) varas; thence west 100 varas; thence north 141) varas; thence east 100 varas to the place of beginning.” The evidence shows that if the land is surveyed on the east line of the Jennings survey, according to these calls it will not reach to or include the land in controversy, which lies considerably west of said east line. The same witness stated that at the time when said deeds were made the east line of the S. G. Jennings survey was claimed to be west of where it is now established by actual survey, and that the land in controversy would be included in the above descriptions if said east line had actually been where it was then believed to be. ■ The witness also speaks in a general way of corrections being subsequently made, but he does not state with sufficient particularity by whom the corrections were made or what they were, to make the evidence of any effect. The defendant introduced in evidence a deed to himself for the land in controversy made by S. G. Jennings subsequent to the institution of this suit. Ho effect other than to place the lands conveyed through them on the eastern boundary of the survey can be given the deeds about which the witness Hance testified. They contain no call or description by which the land can be identified elsewhere, and the evidence of a mistake in making the conveyances is entirely too vague, indefinite, and insufficient [656] to authorize the reformation of the deed, even if that relief had been sought in a proper time and manner. The defendant was entitled to a judgment; not only because plaintiffs failed to connect themselves with the agreed common source of title, but also because he connected himself with not only the common source but also the sovereignty of the soil. The judgment is affirmed. Affirmed. Delivered November 25, 1890.