Giddings v. Fischer

77 S.W. 209, 97 Tex. 184, 1903 Tex. LEXIS 222
CourtTexas Supreme Court
DecidedDecember 3, 1903
DocketNo. 1255.
StatusPublished
Cited by35 cases

This text of 77 S.W. 209 (Giddings v. Fischer) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giddings v. Fischer, 77 S.W. 209, 97 Tex. 184, 1903 Tex. LEXIS 222 (Tex. 1903).

Opinion

GAIHES, Chief Justice.

was an action of trespass to try title brought by the plaintiff in error to recover of defendant in error a *186 tract of land of 524 acres lying in Hardin County, the field notes of which, as set out in the petition, are as follows: “Beginning at the N. E. cor. of a sur. made for F. Bridge of 640 acres. Thence N. 1200 vrs. the S. E. cor. T. & N. O. R. R. sur. Ho. 297. Thence H. 1041 vrs. stake on E. line of same. Thence E. 385 vrs. Kuykendall’s N. W. cor. Thence S. 950 vrs. his S. W. cor. Thence E. 1428 vrs. his S. E. cor. Thence S. 195 vrs. stake on N. line. Thence W. 535 vrs. N. W. cor. of same. Thence S. 950 vrs. S. W. cor. of same. Thence E. 950 vrs. the S. E. cor. of same. Thence N. 950 vrs. on the N. E. cor. of same. Thence W. 415 vrs. to stake. Thence N. 195 vrs. Kuykendall’s S. E. corner, at 332 vrs. the S. W. cor. B. B. B. & C. R. R. sur. Thence E. 926 vrs. stake an ell corner Ho. 371. Thence S. 1588 vrs. the S. W. cor. of Q. Shaw sur. Thence E. 950 vrs. S. E. cor. of same. Thence N. 110 vrs. S. W. cor. of section Ho. 372. Thence E. 1067 vrs. stake the S. Laird W. line. Thence S. 536 vrs. N. E. cor. of B. Mancha. Thence W. 1860 vrs. stake on Burk’s E. line. Thence H. 375 vrs. his N. E. cor. •Thence W. 1696 vrs. stake on E. Bridge’s E. line. Thence H. 1418 vrs. to the beginning.” The defendant in error disclaimed as to all the land sued for, except as to a tract alleged to consist of 160 acres which is described in his answer as follows: “Bounded on the north by State school section Ho.-and the Q. Shaw-survey, on the east by the S. Laid survey, on the south by Benino Mancha, or J. H. Collett survey Ho. 411, of 951 acres; on the west by I. Bridges survey Ho. 1 of 640 acres, which was mistaken for a survey called D. C. Giddings in defendant’s deed from W. G. Parker, and the deed from Phillip Cotton, and the deed from Haney Parker, and the deed from W. D. Laird, and deed from A. S. Fountain to deft, in defendant’s chain of title.” As to the land so described he pleaded not guilty and the statutes of limitations of five years and of ten years. He also pleaded ten years limitation as to “160 acres of land bounded on the east by the S. Laird survey, south by survey Ho. 411, containing 937 acres made for J. H. Collett,” not otherwise describing it.

Upon the trial the plaintiff introduced in evidence a patent from the State of Texas to him for the land described in his petition, and rested his case.

Thereupon the defendant introduced the following testimony in support of his pleas of limitation. One George B. Jordan testified as follows: “I am acquainted with the land in controversy and have lived near it about twenty-seven years. The first man that went into possession of it was one McMeans, and the next man that lived on it was Phillip Cotton. Cotton was followed by W. G. Parker, who sold the land to Laird, and Laird sold the land to A. S. Fountain, and Fountain to the defendant. There is a small improvement on the land, two log houses and four or five acres in cultivation; the improvements were not worth much.” The defendant, being sworn in his own behalf, gave testimony as follows: “I am the defendant. I bought the land in controversy from Fountain in 1898. I paid two hundred and forty dollars *187 ($240) for the 160 acres of land. I let Tobe McKinney live on the place the first year after I bought it, and I lived there ever since. I paid the taxes every year after I bought it on the land purchased from Fountain, including the year 1900.” Witness being shown his tax receipts for 1898, 1899, 1900, and redemption receipt for the years 1896 and 1897, paid by witness August 2, 1898, on 160 acres under head of Phillip Cotton, “original grantee,” testified that the taxes so paid were paid on the 160 acres he bought from Fountain. Witness testified: On being shown the county' map to point out the land, said he did not know how to find it or point it out on the map so as to identify the 160 acres. Witness further testified that A. S. Fountain was in possession when he bought it from him, and Fountain told him that he had had the land in possession from the year 1889. This was all the testimony upon the issue. Ho map was offered in evidence.

The court after hearing the evidence instructed the jury to find a verdict for plaintiff “for all the land sued for except five acres,” and to “find the five acres for defendant, to include his improvements;” and a verdict was returned in accordance with that instruction. A judgment also was entered in accordance with the verdict.

The defendant appealed to the Court of Civil Appeals and the plaintiff moved to dismiss the appeal for want of a sufficient bond. The motion to dismiss was overruled; and the court proceeded to reverse the judgment of the trial court, and to render judgment for the defendant for “the following described tract of 160 acres of land and all improvements thereon: Situated on the waters of Pine Island Bayou in Hardin County and known as a part of survey Ho. 373, bounded on the north by State school section Ho.-and the Q. Shaw survey; on the east by the Laird survey; and on the south by the Benino Mancha or J. H. Collett survey Ho. 411 of 951 acres; on the west by I. Bridges survey Ho. 1 of 640 acres.”

The plaintiff in error first assigns as error the action of the Court of Civil Appeals in overruling his motion to dismiss the appeal. The motion was based upon an alleged defect in the appeal bond. The condition of the obligation was: “That said F. W. A. Fischer shall prosecute his appeal with effect and shall pay all costs that have accrued herein in the District Court or which may accrue in the Court of Civil Appeals or the Supreme Court.” The condition of the bond in such cases is prescribed by the statute in the following language: “Conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all the costs which have accrued in the court below, and .which may accrue in the Court of Civil Appeals and the Supreme Court.” Bev. Stats., art. 1400. It is insisted that the use of the word “or” in the place of “and” makes the condition substantially different from that of the bond required by the statute, and that therefore the bond is not sufficient to support the appeal. But we do not concur in the proposition. The condition in the bond is capable of the construction, that the obligors bind themselves to “pay all the costs,” as *188 well those which have accrued in the District Court as those which may" accrue either in the Court of Civil Appeals or the Supreme Court and may mean the same thing as if the conjunctive conjunction had been used in place of the disjunctive. The condition of the bond being susceptible of the construction that it includes the costs already incurred as well as those which may be thereafter incurred in the appellate courts, and that construction rendering the bond valid, we are of the opinion that it should prevail.

Ho map was offered in evidence, but in order to elucidate the case we insert a sketch of the land sued for as described by the field notes given in the petition. (See map next page.)

We think the Court of Civil Appeals erred in rendering judgment for the land described or attempted to be described therein.

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Bluebook (online)
77 S.W. 209, 97 Tex. 184, 1903 Tex. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giddings-v-fischer-tex-1903.