Citations
- 51 Tex. Civ. App. 552
Full opinion text
REESE, Associate Justice.
This is an action in trespass to try title by Jennie W. Neill and Charles Neill, widow and son respectively, and heirs-at-law of Andrew Neill, deceased, against A. M. Kleiber and his wife, A. A. Kleiber, to recover 640 acres of land, being the same granted to Joseph Sovereign for services as a soldier at the battle of San Jacinto, and patented to him by the State of Texas July 27, 1848.
The case was tried without a jury, and judgment for defendants, from which plaintiffs appeal. There is in the record an agreed statement of facts, and also conclusions of fact and law by the trial court, from which the following facts appear:
The land was surveyed for Joseph Sovereign, by virtue of a certificate issued to him as a soldier in the battle of San Jacinto, at some date prior to April 20, 1839. On that date Sovereign executed to J. F. Torry a conveyance of the land “for and during, and unto the full end and term of ninety-nine years from the date of the conveyance.” In all of the proceedings this instrument, is spoken of as a lease. The land was patented to Sovereign in 1848.
On March 21, 1855, Torry conveyed the land to J. DeCordova, and on January 24, 1857, DeCordova conveyed to A. M. Gentry, who in turn, on February 15,1861, conveyed it back to J. F. Torry.
On March 14, 1871, Joseph Sovereign conveyed the land to Andrew Neill, and on April 9, 1872, Andrew Neill executed to John F. Torry the following power of attorney:
“I, Andrew Neill, of Galveston County, do hereby authorize and empower John F. Torry, of Comal County, to sell, contract and convey all or any part of the Joseph Sovereign tract of land, being 640 acres in Montgomery County, Texas, on the San Jacinto river, the same being held under my title from said Sovereign, and said agent has full power by this to do with the said land as if the same was his own property, for so doing this shall be a full warrant and power of attorney.
“Witness my hand this 9th day of April, 1872.
“A. Neill.”
On April 18, 1872, J. F. Torry executed to Alice Ann Kleiber a conveyance of the land as follows:
“The State of Texas, County of Harris.
“Know all men by these presents, that we, Andrew Heill, of the county of Galveston, in the State of Texas, and John F. Torry, of Comal County, in the State of Texas, in consideration of the sum of $500 in gold to us paid by Alice Ann Kleiber, of the county of Harris, in the State of Texas, and the further consideration in the premises herein- . after entered into and stipulated, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release unto the said Alice Ann Kleiber, all that tract of land situated and described as follows:
“In Harris District, on the west bank of the San Jacinto river, beginning at a black-jack, the N. E. corner of F. Woodruff’s sur.; thence W. with its northern boundary 3232 vrs. to a pine on a line run by the surveyors of Montgomery County; thence north with said line 1438 vrs. to a hornbeam, from which a dogwood brs. N. 10 W. 5 vrs., a hollow brs. N. 18 vrs.; thence E. 1640 vrs. to a stk. on the San Jacinto river; thence down the river with its meanders to the beginning, containing 640 acres, more or less, situated in Montgomery County, in the State of Texas, and is the grant made to Joseph Sovereign for services at the battle of San Jacinto, and is No. 122, vol. 1, and is the same tract of land leased by Joseph Sovereign to J ohn T. Torry for 99 years, per records of Harris County, book ‘K,’ p. 594, and sold by J. F. Torry to J. DeCordova, per records in Montgomery county, book eS,5 pp. 200-0, and sold by J. DeCordova to A. M. Gentry, to John F. Torry per records in Montgomery County, book