Kimbell v. Powell , 57 Tex. Civ. App. 57 ( 1909 )

We are met in limine in this case by a motion presented by appellee to strike from the record the court's conclusions of law and fact. There is no statement of facts. The record shows original and additional conclusions of law and fact in two separate papers, each duly signed by the trial judge and both, as appears from the record, filed on March 28, 1908. The court adjourned on March 21, 1908. With regard to both of these documents, it is charged in the motion that no order was made allowing the district judge ten days after adjournment to prepare and file such conclusions; and this is true; but we are of the opinion that such order was not necessary, but that under the provisions of section 1, chapter 7, Acts First Called Session of the Thirtieth Legislature (p. 446), the judge of the court may prepare and file such conclusions of law and fact, when demand is made therefor, at any time within ten days without a previous order to that effect, which is, however, required in case of statements of facts and bills of exceptions filed after adjournment.

As to the additional conclusions of law and fact, appellees state in their motion, as an additional ground for excluding the same, that although they appear to have been filed by the clerk on March 28th, they were not in fact filed until April 6th, more than ten days after adjournment, and this is made to appear by the affidavit of appellees' counsel and by the statement of the district judge appended to the motion. We are of the opinion that we are without authority to consider the affidavit and statement referred to in impeachment of the record as presented to us. Appellees should have proceeded in the District Court if they desired to so correct the record. (Willis v. Smith, 90 Tex. 636; Boggess v. Harris, 90 Tex. 477 [90 Tex. 477]; Ennis Merc. Co. v. Wathen, 93 Tex. 622 [93 Tex. 622].) The motion to strike out the conclusions of law and fact is overruled.

This is a suit in trespass to try title by appellees against appellant to recover a tract of land out of the Wm. Little league and labor in Leon County. This tract is a part of the northern one-third of said survey. As to appellee's title, it is sufficient to say that the court found that appellees were the owners of the land and entitled to recover unless their title was defeated by appellant's claim of title under the statute of limitations of five years. This finding is not controverted, and as a conclusion of law is fully supported by the facts found. The assignments of error present only alleged errors of the trial court in passing upon appellant's claim of title under the statute of limitation of five years. The deed from Wm. Little to the land claimed by appellees had been lost or destroyed and was not of record, and was established by circumstances.

Appellant claimed title under duly registered deeds from persons claiming to be the heirs of Wm. Little or vendees of such heirs. The court found that such deeds had been duly registered; that under them appellant had been in continuous, actual, adverse possession of parts of the land conveyed, cultivating, using or enjoying the same and paying all taxes thereon for more than five years before the suit was filed, and was entitled to recover the undivided interest conveyed, except for the insufficiency of some of the deeds to describe and identify the land thereby conveyed. As to some of these deeds the court found that such description was sufficient and gave appellant judgment for the undivided interest therein conveyed. The description of the land conveyed by the other deeds was not sufficient to enable appellant to prescribe thereunder unless reference can be had to a certain judgment of the District Court of Leon County particularly referred to for identification and description of the land conveyed. This reference gave the names of the parties to said judgment and otherwise sufficiently identified it. This judgment had not been recorded nor filed for record in the office of the county clerk, as provided by article 4649, Revised Statutes, providing for the record of such judgment, and providing also that until so recorded such judgment "shall not be received in evidence in support of any right claimed by virtue thereof." For this reason the trial court held that it could not be looked to for description and identification of the land described in certain of the deeds, and the description without this being insufficient as to such portions of the land sued for, gave judgment for appellees. The correctness of this ruling is presented by appropriate assignments of error.

The statute referred to has no application to the question involved. Appellant is not claiming title under this judgment, and whether such judgment, unrecorded in the county clerk's office, can be looked to for the identification and description of the land is entirely foreign to the purpose of the statute. The conclusion of the trial court on this point is not very clearly expressed, but we assume, from the way the question is treated by both appellant and appellees, that if reference could be made to the judgment referred to in the deeds for description of the land, such deeds would be sufficient to afford a basis for the statute of limitations as duly registered deeds for undivided portions of the land in controversy therein conveyed.

It is not controverted that in a deed the land may be sufficiently described by reference to another registered deed, or that reference to the judgment or decree, if it had been duly recorded in the office of the county clerk as provided in article 4649, might be used for this purpose. This rule does not rest upon any statute, but upon the general principle that that is certain which can be rendered certain. It has been held in McDonough v. Jefferson County (79 Tex. 539) that a duly registered deed containing no description of the land, but referring for such description to an unrecorded deed, was not sufficient to afford a basis for prescription under the statute of limitation of five years. As such a deed contained nothing on its face to indicate to the owner that it involved his land, it would clearly not be notice to him, which is the purpose of the requirements that the deed under which the title is claimed under the five years statute should be registered, and this would seem to be true even if the deed referred to was registered. We think, however, that if the deed upon which the claim of title by limitation rests is duly registered, and if it is sufficient, from what appears on its face, together with what appears from a judgment of the District Court distinctly and clearly referred to, to serve as notice to the owner that his land is claimed under the deed, it would be sufficient. In other words, we think that to identify and render definite the description of land in a registered deed, to support limitation, resort may be had to a judgment of the District Court not recorded in the county clerk's office, to help out a description of land conveyed, in the same way and to the same extent as a recorded deed. (Snow v. Starr, 75 Tex. 416; Catlett v. Starr, 70 Tex. 485; Watson v. McLane, 18 Texas Civ. App. 212[18 Tex. Civ. App. 212]; Hermann v. Likens,90 Tex. 455; 1 Cyc., 1090-1.) See also dissenting opinion of Chief Justice Stayton in Schleicher v. Gatlin (85 Tex. 276) upon this question of the sufficiency of description of the land in such deeds. A description in a deed can be just as effectually and readily made certain by reference to a judgment recorded in one book as a deed recorded in another, both being public records, kept in the same building and quite frequently in the same room.

The deeds rejected by the court, on the ground that the description of the land was insufficient without reference to the judgment, on their face conveyed undivided interests of the grantors as heirs of Wm. Little in the Wm. Little league of land in Leon County, referring to the judgment to show the amount of such interest owned by them and for description of the portion of the Little league out of which such interests are to be taken. The reference to the judgment should be given the same consideration as a reference to a recorded deed for description. We are of the opinion that the trial court erred in holding that the judgment not having been recorded in the office of the county clerk could not be consulted in order to ascertain with definiteness and certainty the land or interest therein conveyed.

We can not say from this record that the court erred as to the amount of the interest conveyed by the Bragger and Stroud and Wm. Watson deeds, and the assignments of error with regard to these deeds are overruled.

Appellees by their second cross-assignment of error complain that the court erred in adjudging to appellant the 132 1/2 acres under the Bragger deed and the 82 1/2 acres under the Stroud deed (both undivided) to be taken entirely out of the tract of 935 acres in controversy. The 935 acres, as to which the court found that appellees had title unless defeated by appellant's limitation claim, are a part of the tract of 1,475 acres described in the Stroud deed and the 1,325 acres described in the Bragger deed, of which undivided interests of 82 1/2 acres and 132 1/2 acres respectively, as found by the court, are conveyed. Appellant took no title by either of these deeds. They can only serve as a basis for his claim of title under the statute of limitation of five years, and this claim must be confined to the land or interest embraced in the terms of the deed; that is, if the court's findings are correct, to an undivided interest of 132 1/2 acres out of the 1,325 acres and 82 1/2 acres out of the 1,475 acres. Only such proportion of these interests as the amount of the land in the tract claimed by appellees bears to the said tracts of 1,325 acres and 1,475 acres respectively should be taken out of the land in controversy, and only such proportion of the 935 acres was in fact conveyed by the deeds referred to.

Other assignments and cross-assignments of error not herein otherwise disposed of are overruled.

We are unable from the findings of fact of the trial court to determine satisfactorily what judgment should have been rendered by the trial court, and are therefore compelled to remand the cause. The judgment is reversed and the cause remanded for another trial in accordance with this opinion.

ON MOTION FOR REHEARING. The record in this cause was filed in this court July 3, 1908. On October 9th appellee filed a motion to strike out "additional findings of fact and conclusions of law" of the trial court, on the ground that, although they appear from the record to have been filed within ten days after the adjournment, they were not in fact so filed until after the expiration of such time, supporting such motion by affidavits. This motion was submitted and consideration therefor taken with the case, and on June 21, 1909, the cause was decided, the motion to strike out being refused for reasons stated in the opinion.

On July 4, 1909, appellee filed in this court his motion for a rehearing, and on October 5, 1909, filed a motion praying that proceedings be stayed until he could, by proceedings in the District Court, have the record corrected so as to show that no notice of appeal was in fact given, and that the additional conclusions of fact were in fact filed more than ten days after adjournment of the trial court.

In so far as concerns the motion to dismiss the appeal on the ground that no notice of appeal was given, the record showed that such notice was properly given in open court. Appellees' affidavit that this was not true was met by the counter affidavit of appellant's counsel that such notice was properly given and entered and that the record in this particular speaks the truth. Upon this showing we overruled the motion to dismiss at the last term.

As to the motion filed October 5th to stay proceedings until appellee could have the record corrected so as to show that the additional conclusions of law and fact were not filed in time, it is stated by appellee in the motion that suit to correct this part of the record was filed in the District Court on August 8, 1909, but citation was quashed as defective. Unquestionably in a case of this kind it would be proper to delay the decision of the case until the record could be corrected in the trial court, which is the only way in which it can be done (Willis v. Smith, 90 Tex. 636; Boggess v. Harris,90 Tex. 477; Ennis Merc. Co. v. Wathen, 93 Tex. 624 [93 Tex. 624]), and this may be done as well after the judgment (of the appellate court) is rendered as before, but, as said in Gulf, C. S. F. Ry. Co. v. Cannon (88 Tex. 314 [88 Tex. 314]), "provided the attention of the counsel has not previously been called to the omission by motion or otherwise."

As early as October 9, 1908, appellee filed in this court his motion to strike out the additional conclusions of law and fact on the ground here set up, supporting such motion by his own affidavit and that of the district judge. This motion was overruled on the authority of the cases first above cited. No request was then made to have this court delay proceedings until the record could be corrected in the District Court, nor were any steps taken to have this done until August, 1909, nor was it brought to the attention of this court that appellee proposed to institute proceedings to have it done until October 5, 1909. It is not contended that the paper copied in the record is not what it purports to be, but only that it was filed in fact a few days too late. Upon the record thus presented we do not feel disposed to further delay the case until final hearing of the proceeding instituted by appellee on August 8, 1909, and for that reason his motion is overruled, as is also his motion for rehearing.

Appellee cites the case of Sykes v. Speer (112 S.W. 422), with which, it is contended, our ruling that in this matter affidavits will not be heard to contradict the record is in conflict. We do not so understand the decision, but our interpretation of the opinion is that the certificate of the trial judge to the conclusions of law and fact as found in the record contradicted the file mark of the clerk, and showed that the conclusions were not filed in time. Otherwise the opinion on this point is in direct conflict with the several opinions of the Supreme Court in the cases herein cited. Motion overruled.

Reversed and remanded