Edmond Davis v. Onoray Davis ( 2008 )

Opinion filed April 24, 2008

Opinion filed April 24, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00153-CV

                                                    __________

                                 EDMOND DAVIS ET AL, Appellants

                                                             V.

                                        ONORAY DAVIS, Appellee

                                         On Appeal from the 258th District Court

                                                            Polk County, Texas

                                                   Trial Court Cause No. 19,966              

                                              M E M O R A N D U M   O P I N I O N

This suit involves the title to the surface estate of 17.6 acres of land in Polk County and the rights of various family members who claim ownership in that land.  Edmond Davis, Eddie Mae Barkley Moore, Mary Gill Sibley, Raymond Eugene Gill, and Jonella Barkley (appellants) brought suit against Onoray Davis seeking a declaratory judgment regarding the rights of the parties and the percentage owned by each.  Appellants sought to have a deed declared void, requested the removal of a cloud on the title, sought damages for conversion and constructive fraud, sought punitive damages and attorney=s fees, and sought a partition or sale of the land.  The jury answered the questions submitted in favor of Onoray.  Accordingly, the trial court rendered judgment ordering that appellants take nothing on their claims, awarding Onoray title to 13.584 acres of the 17.6-acre tract, and setting aside the remainder of the tract to appellants.  We affirm.

Appellants present eleven issues for appellate review.  In the first issue, appellants question whether the trial court erred in entering judgment against them.  In the second, third, fourth, fifth, and sixth issues, appellants question the validity of a deed to Onoray and his mother and the jury=s determinations regarding the 1.2396 acres covered by that deed.  In the seventh, eighth, and ninth issues, appellants question whether the evidence is legally sufficient to show that Onoray adversely possessed the 12.3444 acres and whether Onoray overcame the presumption against adverse possession where cotenants are involved.  In the final two issues, appellants ask whether the trial court erred in refusing to partition and to declare the ownership rights regarding the remaining 4.016 acres. 

The 1.2396 acres involved in the second through the sixth issues is a tract of land within the 17.6-acre tract that was deeded to Onoray=s grandparents in 1970, then to Onoray and his mother in 1974, and ultimately to Onoray.  Appellants contend in their second and third issues that the deed from Onoray=s grandparents to Onoray and his mother is void because it failed to provide a legally adequate description of the land conveyed.  The deed purported to convey a rectangular lot out of the 17.6-acre tract.  The lot described was 540 foot long by 100 foot wide.

Appellants= contentions involve the beginning point of the lot.  In the deed to Onoray and his mother, which tracked the language of the deed to Onoray=s grandparents, the beginning point was stated as follows:

BEGINNING from the West line of said 17-6/10 acres, being the West corner of said 17-6/10 acres on the South Boundary line of the Scates Survey and the North boundary line of the Harper Survey, thence east with the said league boundary line to iron stake for the BEGINNING CORNER OF THIS SAID TRACT.

Appellants assert in their second and third issues that the deed is void because it failed to indicate the distance from the corner of the 17.6-acre tract^[1] along the boundary line to the iron stake constituting the beginning point of the lot.  Testimony at trial indicated that, as of 2002, the iron stake could not be located.  Both a surveyor and a title examiner testified that they could not locate the beginning point of the lot because of the missing call distance.  The surveyor conceded, however, that the house and improvements built by Onoray=s grandparents shortly after the deed to them  would fit within a 1.2396-acre rectangular lot like that described in the deed to them and the deed from them to Onoray and his mother.

We hold that, although the deed is missing a call distance, the deed is not void. To be valid, a deed conveying real property must contain a sufficient description of the property to be conveyed.  AIC Mgmt. v. Crews, No. 05-0270, 2008 WL 204501, at *4 (Tex. Jan. 25, 2008).  A property description is sufficient if it provides B either within itself or by reference to some other existing writing B the means or data by which the particular land to be conveyed may be identified with reasonable certainty.  Id.  The rule has been stated as follows: 

[A] deed is not void for uncertainty of description unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land.  Where the deed affords some data susceptible of being connected, by parol testimony, with some definite land, the description is in law sufficient. 

City of Missouri City v. Senior, 583 S.W.2d 444, 454 (Tex. Civ. App.CHouston [1st Dist.] 1979, writ ref=d n.r.e.); Ehlers v. Delhi‑Taylor Oil Corp., 350 S.W.2d 567, 573 (Tex. Civ. App.CSan Antonio 1961, no writ).  At the time of the deed, the beginning point could presumably be easily located at the iron stake; there is nothing in the record to indicate that the iron stake did not exist at the time of the deeds.  Title to land does not fail merely because old markers have disappeared.  Hart v. Greis, 155 S.W.2d 997 (Tex. Civ. App.CFort Worth 1941, writ ref=d w.o.m.).  Furthermore, from the beginning point at the stake, a definite closed rectangular lot was described in the deed at issue in this case.  That lot could reasonably be located based on the circumstances as shown by the evidence in this case.  Appellants= second and third issues are overruled. 

In the next three issues, appellants assert that the jury=s determination regarding the vesting of legal title in Onoray is immaterial and that the trial court erred in submitting jury questions asking whether Onoray holds fee simple ownership of the 1.2396 acres and whether the deed sufficiently described the property as to show its location.  A deed, to be sufficient, must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.  AIC, 2008 WL 204501; Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972); Smith v. Sorelle, 87 S.W.2d 703, 705 (Tex. 1935).  As a general rule, the intention expressed by the language of a deed is controlling and, if unambiguous, will be construed as a matter of law and enforced as written.  J. Hiram Moore, Ltd. v. Greer, 172 S.W.3d 609, 613 (Tex. 2005); Montfort v. Trek Res., Inc., 198 S.W.3d 344, 355 (Tex. App.CEastland 2006, no pet.).

In this case, the language of the deed was not ambiguous and could be construed as a matter of law; however, because of the lack of the call distance to the iron stake and the missing iron stake, whether the property could be located on the land was a question of fact for the jury to determine.  The jury determined that issue in Onoray=s favor.  Based upon the jury=s determination that the property was sufficiently described and could be located, the trial court could have determined as a matter of law that Onoray holds fee simple title to the 1.2396-acre lot.  The trial court, however, submitted that issue to the jury, asking whether Onoray holds fee simple ownership by regular chain of title.  Because the jury correctly answered in Onoray=s favor, any error in submitting the question to the jury was harmless under Tex. R. App. P. 44.1.  See XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 632 (Tex. App.CHouston [14th Dist.] 2006, pet. denied). Appellants= fourth, fifth, and sixth issues are overruled. 

In the next three issues, appellants attack the award to Onoray of an additional 12.3444 acres  out of the 17.6-acre tract based upon the jury=s finding that Onoray adversely possessed that property.  In the seventh issue, appellants challenge the legal sufficiency of the evidence to support the adverse possession finding against them, his alleged coheirs/cotenants.  In the eighth issue, appellants contend that Onoray failed to overcome the presumption that his possession of the land was not in adversity to the cotenancy.  In the ninth issue, appellants contend that Onoray=s acts were susceptible of explanation consistent with the existence of common title in the cotenants.  Appellants= arguments under all three of these issues are based upon an assumption that Onoray and appellants owned the property as tenants in common. 

Although appellants have correctly stated the law with respect to the presumption against adverse possession where a cotenancy is involved,^[2] appellants= assumption that Onoray is a cotenant is not supported by the evidence.  There is nothing in the record to indicate that Onoray owned any part of the surface of the 17.6-acre tract as a cotenant.  None of the evidence introduced at trial indicates that Onoray or his mother inherited any portion of the 17.6-acre tract or that he owned any portion of the surface estate other than the 1.2396-acre lot.  Onoray owned the 1.2396-acre lot as a result of a deed partitioning that lot out of the 17.6-acre tract and granting it to Onoray=s grandparents.  Any interest that Onoray=s grandmother retained as a tenant in common in the remaining 16.3604 acres (17.6 acres less the 1.2396 acres that had been carved out) was bequeathed to her sister and her niece and ultimately to Onoray=s brother, Edmond.  Thus, Onoray was not a tenant in common, and the presumption against adverse possession by a cotenant does not apply to this case. 

Appellants do not argue that the evidence is legally insufficient notwithstanding the cotenancy presumption.  However, we have reviewed the record and hold that the evidence is legally sufficient to show that Onoray adversely possessed the 12.3444 acres for a period of more than ten consecutive years prior to this suit.  See Tex. Civ. Prac. & Rem. Code Ann. '' 16.021, 16.026 (Vernon 2002).  Pursuant to the well-recognized standard of review for legal sufficiency challenges, we must determine whether the evidence at trial would enable reasonable and fair‑minded people to reach the verdict under review.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  We must review the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable factfinder could and disregarding any contrary evidence unless a reasonable factfinder could not.  Id. at 821-22, 827.  We may sustain a no-evidence or legal sufficiency challenge only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Id. at 810 (citing Robert W. Calvert, ANo Evidence@ and AInsufficient Evidence@ Points of Error, 38 Texas L. Rev. 361, 362-63 (1960)). 

The record shows that Onoray fenced the property in 1976, built barns and sheds on the property, dug a pond, put his cattle on the property, drilled a water well, charged the cotenants that lived on the property for use of the well, repaired/remodeled and rented out two houses located on the property, and paid the property taxes.  Onoray testified that, in 1976, when he began adversely possessing the property, he told Aeverybody,@ including several of the elderly cotenants, of his intent to adversely possess the property.  None of them contested Onoray=s adverse possession; their descendants filed this suit in 2002, twenty-six years after Onoray began adversely possessing the property.  Appellants= seventh, eighth, and ninth issues are overruled. 

In the tenth issue, appellants contend that the trial court erred in refusing to declare the ownership of the remaining 4.016 acres (17.6 acres less the 13.584 acres awarded to Onoray).  The judgment below shows that the trial court did declare the ownership of the remaining 4.016 acres.  The trial court specifically ordered:

IT IS THEREFORE THE FURTHER ORDER of this Court that as between the parties to this cause of action, the remaining portion of said 17.6 acre tract above described is set aside to Plaintiffs in the same interest that they owned prior to the filing of this cause of action.

With this language, the trial court rendered judgment that the remaining 4.016 acres belonged to the plaintiffs.  Consequently, the tenth issue is overruled. 

In their eleventh issue, appellants contend that the trial court erred in refusing to partition the 4.016-acre tract.  In their petition, appellants requested that the 17.6-acre tract Abe partitioned in the acreage the Court deems appropriate.@  At trial, however, appellants introduced no evidence as to how the 4.016 acres should be partitioned among them.  After trial, appellants filed a document entitled AMotion for JNOV, Request for Partition, and Motion for Judgment@ in which appellants requested that the trial court Apartition [Onoray=s] interest from the remaining 4.016 acres@ and prayed that the trial court Aenter a partition of [Onoray=s] interests from [appellants=] interests.@  The trial court did effectively partition Onoray=s interest from appellants= interests by awarding to Onoray a specific 13.584-acre tract described by the field notes attached to the trial court=s judgment and by awarding the remaining 4.016 acres to appellants.  Any further partition of the 4.016 acres would not have been supported by any evidence. Consequently, the trial court did not err in failing to partition the 4.016-acre tract.  Appellants= eleventh issue is overruled. 

After reviewing all of appellants= contentions, we hold that the trial court did not err in entering judgment against them; we, therefore, also overrule appellants= first issue. 

The judgment of the trial court is affirmed.

April 24, 2008                                                              JIM R. WRIGHT

Panel consists of:  Wright, C.J.,                                     CHIEF JUSTICE

McCall, J., and Strange, J.

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^[1]We note that the location and description of the 17.6-acre tract are not at issue and that the deeds at issue referenced the recorded deed wherein the 17.6-acre tract was originally conveyed.

^[2]See Todd v. Bruner, 365 S.W.2d 155 (Tex. 1963).