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Gwin v. Griffith

394 S.W.2d 191, 1965 Tex. App. LEXIS 2206
CourtCourt of Appeals of Texas
DecidedSeptember 23, 1965
DocketNo. 98
StatusPublished
Cited by2 cases

This text of 394 S.W.2d 191 (Gwin v. Griffith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gwin v. Griffith, 394 S.W.2d 191, 1965 Tex. App. LEXIS 2206 (Tex. Ct. App. 1965).

Opinion

GREEN, Chief Justice.

This appeal is from a summary judgment for appellees, who were plaintiffs in a trespass to try title suit involving 1.58 acres of land in Matagorda County, Texas. We affirm.

In the trial court, the parties entered into a stipulation, pertinent portions of which are as follows:

I.
B. E. Norvell is the common source of title having acquired the property here involved by a Deed from Joseph Korn dated December 9, 1912, recorded December 16, 1912, in Volume 38, at Page 301 of the Deed Records of Matagorda County, Texas, and attached hereto and marked “Exhibit No. 1”.
II.
Plaintiffs have succeeded to such record title as the Grantees owned by virtue of the following Deed of Trust and Deeds:
Exhibit No. 2 — Deed of Trust from B. E. Norvell and wife, Carrie A. Norvell, to Malcolm Graham, Trustee, dated January 27, 1914, and recorded February 3, 1914, in Volume L, at Page 605 of the Deed of Trust Records of Matagorda County, Texas;
Exhibit No. 3 — Deed from William Cash, Substitute Trustee, to P. S. [193]*193Griffith, dated September 5, 1916, and recorded September 5, 1916, in Volume 49, at Page 414 of the Deed Records of Matagorda County, Texas;
Exhibit No. 4 — Deed from B. E. Norvell and Carrie A. Norvell to P. S, Griffith dated September 30, 1916, and recorded November 24, 1937, in Volume 123, at Page 386 of the Deed Records of Matagorda County, Texas.
III.
Defendants have succeeded to such record title as the Grantee owned by virtue of the following Deed:
Exhibit No. 5 — Deed from B. E. Norvell to W. M. Moseley dated February 11, 1914, and recorded March 12, 1918 in Volume 23, at page 589 of the Deed Records of Matagor-da County, Texas.

Herein, where we use the term “evidence”, we refer to the stipulated facts and the affidavits and one deposition which were before the trial court at the time the motion for summary judgment was presented and ruled on.

In determining this cause, we shall of course be guided by the pronouncement of the Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, page 931, that the court “ * * * accepts as true all evidence of the party opposing the motion which tends to support such party’s contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position.”

As shown by the affidavit of E. N. Gus-tafson, then county surveyor of Matagorda County, in 1913 B. E. Norvell requested him to subdivide the eastern portion of the 213.-54 acre tract of land conveyed by deed from Korn to Norvell referred to in paragraph I of the stipulation of facts, which contained the 1.58 acres in litigation, and he did subdivide said eastern portion into five tracts of ten acres each, and one of 15.02 acres. The statement of Gustafson relied on by appellant to establish an equitable title in Moseley as early as 1913, which appellant claimed ripened into legal title by the subsequent deed from Norvell to Moseley, is:

“As I recall the matter at this time Mr. Norvell, either shortly before or shortly after these lands were surveyed, told me that he had sold them to the individuals whose names I placed on the plat of said survey prepared by me and marked Exhibit A. The subdivided tracts referred to are: J. T. Lowe — 10 acres; J. M. Lowe — 10 acres; W. B. Lowe — 10 acres; A. C. Edison — 10 acres; J. Preddy — 10 acres; William Moseley — 15.02 acres.
“I am sure that the names of the above owners were furnished to me by Mr. Norvell at some time as early as November, 1913, because I typed in the name of each individual owner on the field notes * * * Copies of these field notes and the plat have remained on file with the records of the County Surveyor of Matagorda County, Texas, since their preparation by me in 1913. * * ^ »

The deed from Norvell to Moseley, dated February 11, 1914, mentioned in paragraph III of the stipulation, which was executed 15 days after the deed of trust referred to in paragraph II of the stipulation, and 8 days after such deed of trust was recorded, purpurted to convey this 15.02 acre tract to William Moseley. This deed was not placed on record until March 12, 1918.

Appellees claim superior title by foreclosure of a deed of trust from Norvell and wife, both prior in time and prior of record to the conveyance from Norvell, the common source, to Moseley, under whom appellants claim. Appellees also claim title by a subsequent deed from the common source, title by prior possession, and by limitation under the five and ten years statutes.

[194]*194Appellants present this appeal on four points, as follows:

FIRST POINT
The Affidavits and Depositions on file raise genuine issues as to material facts and the Trial Court erred in holding that the Appellees were entitled to a judgment as a matter of law.
SECOND POINT
The Affidavits filed by Appellants reflect admissible evidence sufficient to sustain a finding that the common source had transferred the title to the strip in issue to Moseley prior to the acquisition of any title by Appellees to the land in dispute.
THIRD POINT
The recitals in the Deed of Trust and Deed under which Appellees claim to the effect that Appellants’ predecessor in title, Moseley, owned the land, charged Appellees with notice as to the extent of his claim, and the force of the rule is not altered by either mistakes or misrepresentations on the part of Appellees’ Grantor in:
(1) The number of acres in Moseley’s tract or
(2) An incorrect course and distance to the stake set for Moseley’s southwest corner.
FOURTH POINT
The Affidavits filed by Appellees are insufficient to establish the possession and use of the land in question under the circumstances and for the requisite period required to mature title by adverse possession.

The deed of trust referred to as Exhibit 2 in paragraph II of the stipulation, executed by the common source January 27, 1914, recorded February 3, 1914, was to secure payment of a $4,500.00 note given by Norvell to Security Trust Company. It contains a detailed field note description recited to have been prepared by Gustafson of the property conveyed to the trustee, the security being 150 acres (actually 149.8) of the 213.54 acre tract acquired from Korn in 1912, and did not include the five ten-acre tracts of J. T. Lowe, J. M. Lowe, W. P. Lowe, A. C. Edison and J. Preddy, or 13.54 acres of the tract surveyed by Gustafson for Moseley. The east line of the 150 acre tract described in the deed of trust commenced at the:

“Northwest corner of a 10 acre tract belonging to J. T. Lowe; Thence S 17 W along the west end of five 10 acre tracts belonging to J. T. Lowe, J. M. Lowe, W. B. Lowe, A. C. Edison, and J.

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Bluebook (online)
394 S.W.2d 191, 1965 Tex. App. LEXIS 2206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gwin-v-griffith-texapp-1965.