June 17, 1914.
Appeal from District Court, Hays County; Frank S. Roberts, Judge.
Action by Albert Voges and another against Martin Schubert. From a judgment for plaintiffs, defendant appeals. Affirmed.
B. G. Neighbors, of San Marcos, for appellant. Barber McKie, of San Marcos, for appellees
Adolph and Albert Voges brought this suit against Martin Schubert in the form of trespass to try title, and in their petition described the land sued for as follows:
"The most western one-half of the John Ingram league and labor survey No. 31, situated in Hays county, Tex., said west half of said league and labor being under fence, there being a fence across said league and labor in the center thereof from north to south, said west half containing 2,312 acres more or less, and being the same property conveyed by Mrs. Nannie Cook and Louis Cook, her husband, to Adolph Voges and Albert Voges, by a deed dated June 16, 1908, recorded in volume 54, p. 396, Hays county deed records, which deed and record thereof are referred to and made part hereof. Plaintiffs say that they own and have title to all the land inclosed in their pasture and assert title to every part thereof."
The plaintiffs specially pleaded title by limitation of three, five, and ten years. The defendant answered by general demurrer, not guilty, and general denial.
At the trial it was agreed between the parties that the plaintiffs have title to the western one-half of the John Ingram league and labor survey, and that the defendant has title to the M. Clark and Harris E. Norton surveys, in so far as the title of the plaintiffs or defendant has not been lost by limitation; it being expressly understood that no claim asserted by either party through limitation was waived. The Clark and Norton surveys are older than the Ingram survey, and the latter calls for and connects with the former. The proof shows that the Ingram survey had been fenced for a number of years, and that a cross fence, supposed to be at the center of that survey, extended from north to south, separating the western from the eastern half of the survey.
The plaintiffs put in evidence a deed from Mrs. Nannie Cook and her husband, Louis Cook, to them, dated June 16, 1908, duly acknowledged and recorded, which described the land conveyed as follows:
"All that certain tract or parcel of land situated in Hays county, Tex., and being the most western one-half of the John Ingram league and labor No. 31. This western one-half of said league and labor is under fence, there being a fence across said league and labor in the center thereof from north to south, and the location of the said western one-half is established and identified by such fence, containing 2,312 acres, more or less. This league and labor of land was conveyed to the grantor, Mrs. Nannie Cook, by deed from Helena Landa and Harry Landa, dated July 5, 1901, recorded in volume 41, pp. 497 and 498, deed records of Hays county, Tex."
The plaintiffs also put in evidence the deed referred to from Helena and Harry Landa to Mrs. Cook, conveying land described as follows:
"Also the John Ingram league and labor, situated in Hays county, Tex., and being the same land conveyed to us by Cohen and other heirs, through the sheriff, W. T. Jackman, by deed dated January 6, 1898, and recorded in the Hays county records for deed in volume 37, pp. 38-41, to which reference is here made for field notes and description."
They also put in evidence a deed from the sheriff of Hays county to Helena and Harry Landa, dated January 8, 1898, which described the land conveyed the same as the description in the deed from the Cooks to the plaintiffs. The proof shows that the Ingram survey was fenced by the Landas after they bought it, and before they sold to Mrs. Cook.
The defendant, Schubert, contends that in fencing the land the Landas extended their fence beyond the dividing line between the Ingram and the Norton and Clark surveys, and placed their fence upon the latter two surveys. So the true location of the line between the Ingram survey on the one side, and the Norton and Clark surveys on, the other, was the question of boundary that was litigated. Also, and aside from the question of boundary, the plaintiffs contended that they had title by limitation to all the land inclosed by the fence made by the Landas when they Inclosed the Ingram survey, although a part of that land might be upon the Norton and Clark surveys. The evidence presented but one question of limitation, and that was under the ten years' statute, and the court submitted that issue and the issue of boundary to the jury. The jury returned a verdict which reads as follows:
"We, the jury, find for the plaintiffs, giving them all the land inclosed at time of purchase."
Upon that verdict the court rendered a judgment, which reads as follows:
"It is therefore accordingly ordered, adjudged, and decreed by the court that plaintiffs, Adolph Voges and Albert Voges, do have of and recover of and from the defendant, Martin Schubert, all of the most western, one-half of the John Ingram league and labor survey in Hays county and all lands inclosed around plaintiff's said pasture as said fence existed on June 16, 1908, at the time of the purchase of said land by the plaintiffs, Adolph Voges and Albert Voges, this being the same fence line now established and existing between the property of plaintiffs and defendant, hereby decreeing to plaintiffs, Adolph and Albert Voges, title to all the land lying north of and inclosed by said fence as against defendant, Martin Schubert."
The defendant has appealed and by his first assignment of error complains of the action of the trial court in overruling his motion to postpone or continue the case. The transcript contains an application to postpone or continue the case, which is signed by the defendant's attorney, but which is not sworn to by any one. The reason for asking the postponement was on account of the absence of the defendant and two of his witnesses when the case was called for trial. The record shows that the defendant and both of the witnesses referred to appeared and testified. There is no bill of exception in the record concerning the matter referred to; and, while the judgment states that the application for a continuance was presented and overruled, it does not show, nor is it otherwise shown, that the defendant excepted to the ruling. Such being the condition of the record, the first assignment is overruled.
The second assignment reads as follows:
"The judgment and the verdict do not determine the boundary line between the Ingram league and the Norton and Clark surveys."
That assignment is overruled, because the verdict and judgment, taken together (and especially the judgment), do determine the boundary line referred to. The judgment establishes that line and identifies it by a fence "now established and existing between the property of plaintiffs and defendant"; and it decrees to the plaintiffs title to "all the land lying north of and inclosed by said fence." The assignment under consideration does not make the point that the judgment is not supported by the verdict, because of the fact that the verdict does not sufficiently identify the boundary line in question. But, even if that question were presented, inasmuch as the plaintiffs' petition described the land in controversy as being inclosed by a fence and within their inclosed pasture, and being the land conveyed to them by Mrs. Cook and her husband by deed dated June 16, 1908, and as the undisputed proof shows that the fence and inclosure referred to existed at the time the plaintiffs purchased the, land, and continued to so exist up to the time of the trial, we are not prepared to say that the verdict, if the latter clause therein was intended as fixing boundary, was not sufficient to support the judgment that was rendered. However, the case involved; a question of title independent of the question of boundary, which was founded upon the plaintiffs' plea of limitation; and it may be that the verdict of the jury was intended as a finding for the plaintiffs upon that theory. In other words, the jury may have reached the conclusion that the plaintiffs, and those under whom they claim, had held such adverse possession to all the land inclosed in the plaintiffs' pasture as would give them title by the ten years' statute of limitation, regardless of whether the land was upon the Ingram league or upon some other survey. Hence we hold that the case is distinguishable from Jones v. Andrews, 72 Tex. 5, 9 S.W. 174, Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S.W. 838, and other cases cited in appellant's brief.
Appellant's brief contains several assignments complaining of the action of the court in giving and refusing instructions to the jury; but as the record fails to show that the action complained of was excepted to, as required by the act of the last Legislature, those objections must be considered as waived. Railway Co. v. Battle, 169 S.W. 1048, this day decided by this court.
The only other assignment presented in appellant's brief complains of the verdict as being contrary to law and against the weight of the testimony. That assignment treats the verdict as being founded alone upon the question of boundary, which, as we have heretofore stated, is by no means certain; but, even if it be so construed, we are not prepared to hold that it is without testimony to support it, and therefore that assignment is overruled,
No reversible error has been shown, and the judgment is affirmed.