Bankers' Mortg. Co. v. Higgins (4 S.W.2d 102, 1927)

LANE, J.

The Bankers’ Mortgage Company brought this suit against Johnson Higgins and A. P. Purdy on the 1st day of August, 1925, in the usual form of trespass to try title, praying for a recovery, of the title and possession of a certain 75 acres of land described in plaintiff’s petition as follows:

“75 acres of land out of the John McCloskey league, in Brazoria county, Texas, described as follows: Beginning on Cedar Lake at the S. W. corner of the Higgins 529-acre tract; thence N. 45 deg. along the S. line of the Higgins 529-acre tract to the S. E. corner thereof, and the S. E. corner of the Ben Ward tract; thence S. 45 deg. E. 173 vrs. to a stake at G. T. Higgins N. E. corner; thence S. 45 deg. W. along the N. line of the Higgins and Ben Ward lands to Ward’s N. W. corner on the bank of Cedar Lake; thence northwardly meandering said Cedar Lake to the place of beginning, containing 75 acres of land.”

The plaintiff also alleged title to the land ■under the 3, 5, and 10 years’ statutes of limitation (Rev. St. 1925, arts. 5507, 5509, 5510). Defendants answered, by general demurrer, general denial, and plea of not guilty. They also specially pleaded title under the 5 and 10 years’ statutes of limitation to 75 acres of'land described as follows:

“Seventy-five (75) acres of land situated on Cedar Lake in Brazoria county, Texas, and in the McCloskey league, being a part of the Steven Winston homestead tract and out of the two hundred (200) 'acre tract, which was partitioned between Annie C. Winston and H. Masterson, by order of the district court of Brazoria county, Texas, at its November term, 1883, and being the same seventy-five acres of land set apart to Annie C. Winston in said partition decree: Beginning on Gedar Lake at the S. W. corner of the Higgins 520-acre tract; thence in an easterly direction following the south line of said Higgins tract to the S. E. corner thereof; thence in a southerly direction along the back or eastern boundary line of said two hundred (200) acre tract to a point from whence a line drawn in a westerly direction and parallel with the lower line of the said Higgins’ 520-acre tract to Cedar Lake; thence up Cedar Lake with its meanders thereof to the place of beginning, so as to include seventy-five (75) acres of land, and being the same land conveyed by Annie C. Winston to Lucretia Higgins, by deed dated March 12,1885, filed for record April 10, 1885, and recorded in volume X/p. 305, of the Deed Records of Brazoria County, Texas.”

By supplemental petition, plaintiff alleged that the occupancy of the premises described in the defendants’ answer by virtue of which they claim title thereto by limitation was permissive only and not adverse to the holder of the record title, in that defendant Johnson Higgins took and held possession of said premises in subordination to the title of plaintiff and its predecessors in title.

Plaintiff further alleged that defendants were estopped to. claim said premises under the statutes of limitation, in that plaintiff’s predecessor in title, South Texas Development Company, purchased the premises from H. Masterson, and the defendant Johnson Higgins, by virtue of whose occupancy limitation title is asserted by defendants, acknowledged that said premises were owned by plaintiff’s predecessors in title and stated that he desired to rent the same, and. thereafter became the tenant of plaintiff’s predecessor in title, and as evidence that he did not claim any interest in the land he executed and delivered to plaintiff’s predecessor in title a deed of conveyance to said land. By supplemental answer, defendants denied generally the allegations of the plaintiff’s supplemental petition.

It was shown that William Winston was in 1854 the owner of 800 acres of land in Brazoria county, a part of the John Mc-Closkey league, known as the former home place of Joseph Reese. By partition decree of the district court of Brazoria county, 200 acres of the 800 acres above mentioned was set aside to John A. and Annie C. Winston in equal portions; said 200 acres being described in said decree as follows:

“Beginning on. Cedar Lake at the southwest corner of the Higgins 520-acre tract of land; thence in an easterly direction along the lower or south line of said Higgins tract; thence in a southerly direction such a distance that a line drawn westerly parallel with said lower line of the Higgins tract to said Cedar Lake; thence ■ up Cedar Lake with its meanders to the place of beginning, will include and embrace within said lines 200 acres of land.”

On the 9th day of July, 1883, John A. Winston, by his deed of that date, conveyed to H. Masterson land described as follows:

“An undivided one-fourth (¾) of 200 acres out of the J. McCloskey league, which was set apart to us by the district court of Brazoria county, Texas, May term, 1883, by decree of John A. Winston v. Stephen P. Winston et al., No. 2909. See pages 511 and 514 of the minutes of the district court.”

And on August 27, 1883, he conveyed to H. Masterson his remaining one-fourth interest in said 200 acres, describing the same as follows:

“An undivided one-half (½) of 150 acres out of the J. McCloskey league, being my own ½ of ½ of 200 acres out of the Winston plantation on Cedar Lake after deducting 50 acres heretofore deeded to said H. Masterson, out of said 200 acres by myself and Annie C. Win.ston, said 75 acres hereby conveyed is my portion of the 200 acres, which was set apart to Annie C. Winston and myself, or to our father, S. P. Winston, by decree of the district court of Brazoria county, Texas, at May term, 1883, in suit entitled John A. Winston v. S. P. Winston et al., No. 2909.”

In a suit brought by H. Masterson against Annie C. Winston on the 16th day of November, 1883, praying' for a partition of the above-mentioned 200 acres of land, a decree was rendered setting aside to Annie C. Winston 75 acres out of the said 200 acres, describing the same as follows:

“Beginning on Cedar Lake at the S. W. corner of the Higgins 520-acre’ tract of land; thence in an easterly direction following the lower or south line of said Higgins tract to the S. E. corner of said' Higgins tract; thence in a southerly direction' along the back or eastern boundary line of said 200-aera tract to a point from whence a line drawn in a westerly direction and parallel with the said lower line of the said Higgins 520-acre tract to Cedar Lake; thence up Cedar Lake with the meanders there-' of to the place of beginning so as to include' and embrace within the above-specified bounds the said Annie C. Winston three-eighths interest or 75 acres of land out of the afore-described 200-aere tract of land.”

And setting aside to H. Masterson 125 acres of said 200 acres, describing the same as follows:

“Bounded on the upper or north side by the lower or south line of said 75-aere tract of said Annie 0. Winston, on the back or eastern end, by the back or eastern line of the afore-described 200-acre tract on the lower or southern side by the lower or southern line of said 200-acre tract above described, on the front or lake side by Cedar Lake, containing within said bounds 125 acres of land.”

On the 17th. day of March, 1885, Annie C. Winston conveyed to Lucretia Higgins the 75 acres set aside to Annie C. Winston in the decree above mentioned, and in the deed of conveyance the 75 acres is accurately described as it was in said decree. In part payment for the land, Lucretia Higgins executed and delivered to Annie C. Winston three promissory vendor’s lien notes for the aggregate sum of ⅞375, bearing interest at the rate of 8 per cent, from date until paid. The three notes before mentioned were transferred to and became the property of H. Masterson, and were in full force and effect from the time of their execution and delivery to the 5th day of January, 1892, at which time H. Masterson brought suit against the maker and her husband, and Johnson Higgins, appellee here, who was claiming title under Lucretia Hawkins, formerly Lucretia Higgins, to foreclose his vendor’s lien against said 75 acres of land. Judgment was rendered in said suit as prayed for, execution and order of sale was duly issued thereon, and the land was sold thereunder to H. Masterson on the 1st day of March, 1892, and a deed was made by the sheriff making such sale, conveying said 75 acres to H. Masterson, in which the land is described as follows:

“75 acres of land situated on Cedar Lake in Brazoria county, Texas, being a part of the Stephen Winston homestead tract of 200 acres and 75 acres are out of said 200-acre tract which was partitioned between Annie L. Winston and H. Masterson by order of the district court of Brazoria county, Texas, at its November term-, 1883, and is the same 75 acres set apart to said Annie C. Winston in said partition; said 75 acres described by metes and bounds as follows: Beginning on Cedar Lake at the S. W. comer of the Higgins 520-acre tract of land; thence in an easterly direction following the south line of said Higgins tract to the S. B. corner of said Higgins tract; thence in a southerly direction along the back or eastern boundary line of said 200-acre tract to a point from which a line drawn in a westerly direction and parallel with the lower line of the said 520-acre tract to Cedar Lake; thence up Cedar Lake with the meanders thereof to the place of beginning, so as to include within the specified bounds 75 acres of land, and for fuller description thereof reference is made to the partition of said 200 acres out of which said 75 acres is' taken as the same appears in the minutes of the district court of Brazoria county, Texas, in pages 5180, 5181, and 5182 of said court minutes.”

Napoleon Higgins, the father of Johnson Higgins, died in 1885, and Lucretia married one Hawkins. Lucretia Hawkins died in 1916. Johnson Higgins was the only child of his parents. Shortly after Lucretia Higgins purchased the 75 acres in 1883 and executed the notes above mentioned, she made a verbal gift of the land to defendant Johnson Higgins, and he moved on the same and continued to live thereon under such gift, except for a period of years, and during such period he was in possession thereof by tenants up to the time this suit was filed, but never at any time did he advise Masterson that he claimed the land adversely to him, or repudiate the possession under which he entered.

On the 18th day of September, 1905, H. Masterson conveyed, together with two other tracts of land, 140 acres of land lying in Bra-zoria county, Texas, to the South Texas Development Company, which was described in said conveyance as follows:

“140 acres out of the following described 200-acre tract: Beginning on Cedar Lake at the S. W. corner of the Higgins 520-aere tract of land; thence in an easterly direction along the lower or south line of said Higgins tract; thence in a southerly direction such a distance that a line drawn westerly parallel with said lower line of the Higgins tract to Cedar Lake; and thence up Cedar Lake with its meanders to the place of beginning, will include and embrace within said lines 200 acres of land.”

On the 20th day of May, 1910, Johnson Higgins executed and delivered to the South Texas Development Company the following instrument:

“The State of Texas, County of Brazoria.

“Know all men by these presents: That we, J. A. Higgins of the county of Brazoria, state of Texas, for and in consideration of the sum of five and 00/100 dollars to us in 'hand paid by the South Texas Development Company, the receipt whereof is hereby acknowledged, have granted, sold, remised, released and forever quitclaimed and by these presents do grant, sell, remise, release and forever quitclaim unto the said South Texas Development Company, a private corporation, its successors and assigns, all our right, title and interest in and to that certain lot, tract or parcel of land described as follows: Situated in Brazoria county, Texas, and a part of the John McCloskey league, beginning at N. Higgins lower corner on Cedar Lake from which a cedar tree 10 inches in diameter bears N. 39 deg. E. 9 ft. marked X; thence N. 45 deg. E. 865 vrs. along the lower line of the N. Higgins tract to stake on edge of a field; thence south 45 deg. E. 32½ vrs. to another stake on edge of the field; thence N. 45 deg. E. 444 vrs. to corner of Ed. Bess 40-acre tract; thence S. 45 deg. E. 1042 vrs. to Winston line; thence S. 45 deg. E. to corner of a 65-aere tract described in deed from South Texas Development Company to H. Masterson, filed for record in Brazoria county, Texas, November 13, 1907, recorded in Book 77, page 259 of Brazoria county deed records; thence south 45 deg. W. with the N. line of the said 65-acre tract to the line of the Ben Ward 60-acre tract; thence with the line of the said. Ben Ward tract to its N. corner; thence south 45 deg. W. with the line of the said Ben Ward tract to Cedar Lake; thence with the meanders of Cedar Lake to the place of beginning, comprising within the aforesaid metes and bounds the 91-acre tract of land conveyed by S. Masterson to the South Texas Development Company by deed recorded in Deed Records of Brazoria County, Texas, book 67, page 544, and the portion of the 140-acre tract conveyed by said H. Masterson to the said South Texas Development Company by the deed above mentioned remaining in the said company after deducting 65 acres recon-veyed to the said H. Masterson by the said company by the aforesaid deed, dated October 31, 1907, filed for record November 13, 1907, and recorded in Brazoria County Deed Records, book 77, page 259, to have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said South Texas Development Company, its successors, heirs or assigns forever, so that neither the vendors herein, nor their heirs, nor any other person or persons for them, or in their name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every one of them by these presents shall be excluded and forever barred.

“Witness our hands this-day of May 20, A. D. 1910 (the word ‘April’ being struck out). A. J. Higgins. Signed and delivered in the presence of-

After Masterson had purchased the one-half interest in the 200-acre tract from John A. Winston, above mentioned, to wit, on the 29th day of March, 1888, he conveyed to one' Ben Ward 60 acres, described as being a portion of 200 acres set apart to John and