Heirs & Unknown Heirs of Barrow v. Champion Paper & Fibre Co.

327 S.W.2d 338, 1959 Tex. App. LEXIS 2061
CourtCourt of Appeals of Texas
DecidedJuly 16, 1959
Docket6027
StatusPublished
Cited by4 cases

This text of 327 S.W.2d 338 (Heirs & Unknown Heirs of Barrow v. Champion Paper & Fibre Co.) 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
Heirs & Unknown Heirs of Barrow v. Champion Paper & Fibre Co., 327 S.W.2d 338, 1959 Tex. App. LEXIS 2061 (Tex. Ct. App. 1959).

Opinion

McNEILL, Justice.

The suit involves the title to a tract of S65.8 acres of land in the N. two-thirds of the Reuben Barrow one-third league in Liberty County. The survey was patented *340 by the State to Reuben Barrow, Jr., in the year 1849.

The parties involved as plaintiffs are Champion Paper & Fibre Company, and J. H. Kurth, Jr., and S. W. Henderson, sole surviving trustees for the former stockholders of Newton County Lumber Company, a dissolved corporation. The petition named as defendants the heirs and unknown heirs of Reuben Barrow, Jr., deceased, and the heirs and unknown heirs of many other individuals, the list covering pp. 2-35 of the transcript, all of whom were cited by publication, as well as a list of persons claiming under certain instruments, and an additional list of some eight pages of defendants described as non-residents of the State. Additionally, West Virginia-Texas Oil Company, Gulf Oil Corporation, Sohio Petroleum Company, and individuals of Liberty, Harris and of several other Texas counties were made defendants. In addition to alleging the statutory title, plaintiffs claimed limitation title under the statutes of 5 and 10 years, Vernon’s Ann. Civ.St. arts. 5509, 5510. For those of the defendants cited by publication failing to answer, the court appointed Hon. R. E. Biggs of Liberty and Hon. Joyce Cox of Houston to represent them and have filed answer for them. At the conclusion of the trial to a jury the trial court rendered judgment upon the verdict in favor of plaintiffs except as to a Jisth perpetual royalty decreed in favor of the defendants Hamilton, et ah, and except as to certain leasehold interests decreed to Sohio Petroleum Corp.

The appellants are the Reuben Barrow, Jr., heirs and a group of defendants hereinafter designated as the subdivision defendants, and the plaintiffs above described are the appellees. However, since the briefs of the parties and the other records in the case treat appellees as plaintiffs, the heirs and unknown heirs of Reuben Barrow, Jr., deceased, as the Barrow heirs and the other appellants, subdivision defendants, as S-D defendants, these parties will be so referred to hereinafter. There are yet another small group of defendants, but since they have not appealed they are not involved here and we will not further describe them.

The case involves two principal questions. First, the proper construction of the deed made by Reuben Barrow, Jr., on January 14, 1864, party of the first part, to R. O. W. McManus and J. P. Viguerie as parties of the second part, and is as follows:

“ * * * doth grant and convey to the said parties of the second part their heirs and assigns forever all that certain piece or parcel of land lying and being in the County of Liberty the same being a part of my Headright Certificate No. 209, issued by the Board of Land Commissioners of Liberty County on the first day of March 1838.
“Beginning at a Water Oak mkd AV on the East Bank of the East San Ja-cinto River the same being the Northwest corner of Ann Holtzhousen’s Survey from which an Oak mkd X (3 hacks above and 3 below) bears S. 66° E. dist. 10 varas a Water Oak blamed bears N. 11° E. 10%o varas; Thence up said River with its meanderings to the second corner, a satke from which a Cypress mkd 4 bars S. 69° E. 9 vars and a Sassfras mkd X bears N. 80° E. 38/io varas;
“Thence East Fiftynine hundred and fifty varas to a stake from which a Sweet Gum mkd X bears N.E. ljio varas, a Sweet Gum mkd 4 bears N. 43 W. 5%o varas;
“Thence South Fourteen Hundred and Fortyfour Varas to a stake on said Ann Holtzhousen’s Northline from which a Sweet Gum mkd 4 bears N. 25° E. 4 varas, a Sweet Gum mkd X bears S. 59 W. 78/io varas;
“Thence West with said line Fifty-four Hundred and Thirtyfour varas to the place of beginning, containing one third of a league of land. Nine Hundred and Eightysix acres of the said *341 third of a League above described is hereby conveyed by the party of the first part unto the parties of the second part together with all and singular, the tenements, hereditaments and appurtenances and all the estate, title and interest of the said party of the first part therein and the said party of the first part doth hereby covenant and agree with the said parties of the second part that at the time of the delivery hereof the said party of the first part is the lawful owner of the premises above granted and seized thereof in fee simple absolute and that he will warrant and defend the same in the quiet and peaceable possession of the parties of the second part, their heirs and assigns forever.”

Both plaintiffs and S-D defendants rely upon and claim under this deed. If this deed effectively conveys the north two-thirds of the one-third league or conveys all of the estate, title and interest of Reuben Barrow, Jr., in said one-third league, the defendant Barrow heirs have no standing in this case. Their contention therefore is that the deed is void and ineffective to describe any land.

The other principal question hinges on the “locatability” of a certain subdivision of a tract of 7SO acres in the North two-thirds of the said Reuben Barrow Survey known as the West Virginia-Texas Oil Company Subdivision which was recorded in Vol. 54, p. 434, Deed Records of Liberty County in connection with a certain contract of agency and sale between one J. C. Vlerebome and George W. Ginther hereinafter further referred to. In addition to the principal map there-were maps labeled A, B, and C, each of which re-subdivided portions of the 750 acres subdivided. The subdivision defendants are those claiming title under deeds given upon the basis of the subdivision recorded in Vol. 54, p. 434 of said deed records.

Reverting to the first question, it is argued by the plaintiffs, j oined by the S-D defendants, that the above deed from Reuben Barrow, Jr., to McManus and Viguere was a sufficient conveyance to the persons who were predecessors in interest of plaintiffs and S-D defendants of all the estate, title and interest Barrow had in and to said one-third league. The Barrow heirs as above mentioned contend that said deed is invalid because it fails to describe and convey any property. The Barrow heirs rely strongly upon Wilson v. Fisher, 144 Tex. 53, 56-57, 188 S.W.2d 150, 152, which lays down the rule: “ * * * the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty,” and insist that measured by this language said deed from Barrow is ineffective, that while the deed attempts to convey 986 acres the description thereof is void. However, this case recognizes the rule that where the instrument uses words such as my “headright” or other particularly named tract that parol evidence may be used to explain and identify it.

Bearing on the question before us, we quote what was said by Gaines, C. J., in Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551, 552: “The language of a deed is the language of the grantor, and, if there be a doubt as to its construction, it should be resolved against him.

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327 S.W.2d 338, 1959 Tex. App. LEXIS 2061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heirs-unknown-heirs-of-barrow-v-champion-paper-fibre-co-texapp-1959.