First Nat. Bank of Rockport v. Brown , 1928 Tex. App. LEXIS 277 ( 1928 )

FLY, C. J.

This is an action of trespass, to try title to 79½ acres of land out of the T. T. Williamson survey in. Aransas county, instituted by George Wilby Gibbs, Sallie Gibbs Milliken; and Dorsey Gibbs Morris, joined by her husband, I. J. Morris, against George W. Brown, the First National Bank of Snyder and the First State Bank & Trust Company of Snyder. At the instance of the defendants named, the First National Bank of Rockport, was made a party and recovery sought against it, on the ground of the land having been sold by the First National Bank of Rockport to Brown, and a warranty title thereto having been executed to said Brown. The court rendered judgment for the land in favor of the original plaintiffs, and in favor of George W. Brown, for the sum of $347.50.

George Wildy Gibbs, and those associated with him in bringing the action showed title to the 79½ acres of land sued for, and properly recovered the same. On February 20, 1907, the First National Bank of Rockport conveyed by warranty deed to George W. Brown, in consideration of $930.75, a one-half undivided interest in and to, a certain tract of 372.3 acres of land, more or less, out of the T. T. Williamson survey in Aransas county. On February 6,1908, the land was partitioned by deeds, the eastern one-half of the Williamson tract being conveyed and set apart to George W* Brown and the western one-half to John A. McCollough. The statement of facts says: “The 69% acres sued for was a part of the tract sold by the First National Bank of Rockport to George W. Brown.” The 69% acres sued for fell to Brown in the allotment of the land. The deed given by the First National Bank of Rockport to Brown, was a general warranty deed. The half of the Williamson tract, which was described by metes and bounds, was not indicated in the deed. It was an undivided half of the whole tract.

There is nothing in the statement of facts, which indicates how it was ascertained that a certain parcel of land was a portion of the undivided one-half of a larger tract. A deed to an undivided interest in a parcel of land carries an interest in the whole land, whether it'be large or small. And yet a statement of facts agreed to by all the parties, places the whole of the land in controversy on the undivided one-half interest sold to Brown. Appellant, having accepted the statement of facts as well as the findings of fact of the trial court, is in no position to complain.

Appended to the deed made by appellant is an excerpt from the minutes of the bank directors, in which it is recited that the sale to Brown, had been authorized for the sum of $5 an acre and that may be taken as sufficient proof that the value of the land at time of the sale was $5 an acre. It follows that appellant has no cause of complaint on this score. The way was open to it, to show a less value on the land when it was sold, but advantage was not taken of the opportunity. No attack is made upon the measure of damages used by the court.

The judgment is affirmed.