# Kenedy Pasture Co. v. State > Court of Appeals of Texas · January 24, 1917 · 196 S.W. 287 URL: https://www.frixlaw.com/law-library/cases/9830128 ## Case - **Full name:** KENEDY PASTURE CO. Et Al. v. STATE Et Al. - **Court:** Court of Appeals of Texas - **Decided:** January 24, 1917 - **Citations:** 196 S.W. 287; 1917 Tex. App. LEXIS 664 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Jenkins - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9830128 ## Opinion text On Motion for Rehearing. In order to make corrections in our findings of fact, and to file additional findings of fact as requested by appellants, and also to correct an error in which we fell on account of a misconstruction of the pleadings of Jno. G. Kenedy & Oo. as to disclaimer, we withdraw our opinion on motion for rehearing filed herein March 29, 1917, and substitute this opinion in lieu thereof. We correct our fourteenth finding of fact so as to read as follows: In 1869, F. A. Blucher, county surveyor of Cameron county, by virtue of the act of 1852, surveyed El Paistle and Las Barrosas for Mifflin Kenedy, who claimed to be the owner of said surveys, and who applied for and received from the land commissioner patents to said surveys as surveyed by said Blucher. In 1861 Blucher surveyed the Panaschal, which joins La Parra on the east. In making these surveys he ran the west, south, and east lines of La Parra. The southeast corner of La Parra was the!', and is now, well known and undisputed. The record does not show whether or not La Parra or Arriba have been patented. By request of appellants, we also make the following additional findings of fact: The Kenedy Pasture Company has rendered and paid taxes on both the El Paistle and Las Barrosas grants as patented from the year 1883 continuously down to the trial of this cause. On November 11, 1886, Francisca Balli Garza and her husband, Alejos Aleman, for the consideration of $1, deeded to Bernardo Yturria the El Paistle grant, describing the same as beginning at a point on Olmos creek, called “El Paso Ancho de la Carreta,” being the common corner of El Paistle and La Parra; thence S. 300 cordelas; thence W. 167 cordelas, 10% vrs.; thence N. to Ol-mos creek; thence easterly, with meanders of said creek, to.the beginning, containing five square sitios or leagues of land; reciting in said deed that Francisca Balli Garza inherits from her father, Juan Antonio Balli Cavazos, deceased, the original grantee, and of whom she, the said Francisca Balli Garza, is the only surviving child and only heir; which deed was filed for record in Cameron county, Tex., November 13, 1886. On March 3, 1887, Bernardo Yturria, for the recited consideration of $3,000, deeded, to the Kenedy Pasture Company, El Paistle, describing the same as bounded on the north by Los Olmos creek, on the east by the tract of land known and called La Parra, on the south by Las Barrosas, which deed was filed for record in Cameron county, March 4, 1887. On May 18, 1904, Francisca Balli Garza, and her husband, Alejos Aleman, deeded to the Kenedy Pasture Company, for the recited consideration of $1 and other good, valuable, and sufficient considerations, El Paistle, the same having been patented by the state of Texas, and bounded on the north by Los Olmos creek, on the east by La Parra, and on the south by Las Barrosas, which deed was filed for record by J. W. Webb, county clerk (county not given), July 10, 1905. The Mexican appellants and interveners in this cause, or their ancestors, on December 22, 1904, filed suit in the form of trespass to try title in the district court of Cameron county, against the Fants and Sullivan, Mrs. Jeffers, and H. C. Tindale and wife, for the recovery of the lands of the Santa Rosa de Abajo grant to Pedro Yillareal, describing same as bounded on the east by El Paistle and Las Barrosas grants, on the south by Las Barrosas, and on the west by Santa Rosa de Arriba, and on the north by Olmos creek, and said cause, by agreement of parties, was transferred to Travis county and consolidated with this case. On October 5, 1911, the same parties filed suit in the district court of Willacy county against the Crockers and others for the recovery of the Santa Rosa de Abajo lands, describing the same as above stated, and the venue of that cause was also changed to Travis county and consolidated with this cause. On the 18th of November, 1914, the Kenedy Pasture Company filed suit in the district, court of Willacy county against M. L. Crock-er for recovery of 270 acres of land, as part of Las Barrosas, which suit was also trans *300 ferred to Travis county, and consolidated with this cause. Appellants reguest us to make 69 additional findings of fact, consisting largely of the testimony given in this cause, and covering the greater portion of the statement of facts, which consists of 739 pages. Our original findings of fact as herein corrected, and the additional findings of fact herein made, cover all of the facts established by the evidence which we deem material to the issues herein involved, for which reason we decline to make further additional findings of fact as requested by appellants. Appellees, the Pant heirs, ask us to sustain their eighth cross-assignment of error, which is as follows: “The court erred in its seventh conclusion of fact in finding as follows: ‘At the time when P. J. Parker located his surveys upon the Santa Rosa de Ahajo tract of land he had notice that Judge Jas. B. Wells had seen what purported to have been a grant of said Santa Rosa de Abajo tract issued to Pedro Villareal by the governor of Tamaulipas, Mexico, on the 12th of April, 1S48, and that said grant appeared on its face to be an original grant’; for the reason that said finding is contrary to, and wholly unsupported by, the evidence, in that it nowhere appeared in the evidence that P. J. Parker had any character of notice of these matters, and it affirmatively appears that, on the only occasion a location by P. J. Parker on the Abajo tract was discussed between him and Judge Jas. B. AYells, the latter, according to his own testimony, told P. J. Parker that he did not know anything about the status of the title, and could not say anything about it, and J. J. Cocke, the only other witness who testified with reference to this matter, testified that he did not recollect Judge Wells telling Parker that he had seen a grant and survey of the Abajo tract.” We sustain said assignment of error. While Judge Wells testified that Col. Crafts left the original grant of the Abajo in his office, and that he examined the same, and that the field notes attached thereto were signed by Canales, whose signature he recognized by frequently having seen it attached to field notes, he did not testify that he told Parker that he had seen said grant. Judge Wells testified on this point as follows: “I inferred from what I heard—I knew nothing outside of that—that Parker wanted Mr. Cocke to locate and survey some land certificates on the Santa Rosa de Abajo grant, and that Mr. Cocke objected to doing it on account of knowing of this Santa Rosa de Abajo grant on it. The language that took place and what went back and forth—the conversation was principally between them—and I just sat there, and' about the only thing I said about it was that I did not know about the status of the title and could not say anything about it.” Appellants complain that we ignore the call for Trancas Motte on the west line of La Parra survey. The trial court evidently gave precedence to the call for Motte de Tio Culas over the call for Trancas Motte, and we think properly so, for the reason that Tio Culas Motte was a well-known natural object when the original survey was made, whereas Trancas Motte is only a- name given by the surveyor.- “Trancas” means i a bar across something, and, as applied to a I line, it means that the line runs through the motte. A motte could not be “trancas” (across) a line before the line was run. The Culas Motte is found at the proper distance from the southwest corner of La Parra as located by Blucher. Some stumps claimed to be those of Trancas Motte are found on the east line of La Parra as run by Cocke, but lacking 609 varas of being the proper distance from its northwest corner as located by that surveyor and as claimed by appellants. The country is shown to be full of stumps. Appellants Kenedy & Co. assume in their motion for rehearing that we rendered judgment against them for the sections and parts of sections situated upon the east side of Abajo as located by it upon the ground, that it had disclaimed as to same. It did not disclaim as to these lands, but, on the contrary, claimed thorn as a part of El Paistle. Wlhat we hold is that, even if we were in error as to the boundary of El Paistle, the Kenedy Pasture Company is estopped to claim these lands as part of El Paistle as against innocent purchasers, for the reason that MifHin Kenedy, under whom it claims, had El Paistle surveyed and patented so as to exclude these lands from said survey. The state in its motion for a rehearing insists that we erred in affirming the judgment of the trial court, as against it, for the sections and fractional sections of land lying east of the east line of the Abajo survey, as the same is described in the answer of Jno. G. Kenedy et al.; the contention in this regard being that said answer is in effect a disclaimer of all lands not included within the boundaries of the Abajo as described by said appellants. Article 7752, R. S., reads as follows: “Where the defendant claims part of the premises only, the answer shall be equivalent to a disclaimer of the balance.” A plea of not guilty and a disclaimer of all of the land sued for are so inconsistent that the plea of not guilty will be disregarded. Herring v. Swain, 84 Tex. 523 , 19 S. W. 774 . AYhere a defendant pleads not guilty, and also specially pleads his title to all of the lands in controversy, this is equivalent to disclaiming any title to any of the land sued for, except that which he specially pleads. Hayes v. Gallaher, 21 Tex. Civ. App. 88 , 51 S. W. 280 . These are the strongest cases in favor of the state's contention to which our attention has been called or which are known to us. In Stipe v. Shirley, 33 Tex. Civ. App. 223 , 76 S. W. 307 , and Keyser v. Muesbaek, 77 Tex. 64 , 13 S. W. 967 , cited by the state, it does not appear that there was any plea of not guilty. In Converse v. Langshaw, 81 Tex. 275 , 16 S. W. 1031 , it clearly appears from the pleadings contained in the original record (which we have this day examined) that defendant’s plea of not guilty related only to so much of the land sued for as might be found to be *301 within the boundary of his survey which he sets out by his field notes. The suit was in fact a boundary suit, and the issue was as to whether there was any 'conflict between a 640-acre survey claimed by plaintiff and a 320-acre survey claimed by defendant. The evidence showed a small conflict, and it was as to this that the defendant pleaded not guilty, and also improvements and' feood faith. In Dodge v. Richardson, 70 Tex. 209 , 8 S. W. 30 , defendant distinctly disclaimed except as to a certain portion of the land sued for; and this is time also as to defendant’s plea in York v. Lumber Co., 109 S. W. 187 . In the instant ease Kenedy et al. pleaded not guilty, and by way of special plea alleged that the state ought not to recover, as to a portion of the land sued for by it, because the same was included within the boundaries of the Abajo survey, which boundaries they set out; that said Abajo was a valid grant under the laws of "Mexico, and under the treaty of Guadalupe Hidalgo, and that they were the owners of said grant. The object of pleading is to advise the opposite party what is expected to be proven as showing the right of recovery or a valid defense. In so far as pleadings by failing to distinctly allege the facts relied upon set snares and piualls for the opposite party, they ought to be strictly construed against the pleader, but, where the pleadings cannot possibly lead to surprise in the introduction of evidence, they ought to be liberally construed in the interest of justice. We think the article of the statute above quoted means that when a party in trespass to try title answers that he owns a part of the land, and does not indicate that he claims any except such part, it is to be construed as a disclaimer of the balance of the land sued for. This is common sense. When a man says to another, “I own a certain tract of land,” and the other replied, “I own a certain part of that land,” it means that he does not claim to own any except the part which he specifies. In the instant case the real issue, aside from innocent purchaser and estoppel, was as to the validity of the Abajo grant. Incident to this was the issue of boundary, for the reason that if the Abajo grant, conceding its validity, was located as claimed by the state and the other appellees, the owner of the Abajo grant had no claim to a tier of sections on the west of the tract sued for by the state. It clearly appears from the pleadings herein that Kenedy et al. were claiming that the Abajo was a valid grant, and that they were the owners thereof wherever the same might be located. Their description of the boundary of said grant amounted, in effect, to a claim by them of the tier of sections upon the east side of the tract sued for by the state. The state could not have been surprised by the evidence introduced for the purpose of establishing the boundaries of the Abajo about a mile further west than where Kenedy & Co. alleged the same to be, for the reason that such location was contended for by the state, and, as we hold, was established by the state’s evidence, against the contention of Kenedy & Co., as to said location. If the Abajo is a valid grant, and Kenedy & Co. are the owners thereof, justice demands that they should recover'the same, except as against innocent purchasers, or persons establishing title thereto by limitation, and we do not think that they are barred from such recovery by the fact that they were mistaken as to the boundaries of said grant. It should be remembered that this is not a suit by the alleged owners of the Abajo as plaintiffs, claiming certain land and describing the location thereof in their petition. They occupy this position in their cross-bill as against the purchasers of the state, but as to the state they are simply defendants asserting the validity of the Abajo grant, and contesting the state’s claim as to the boundary thereof. Appellants insist that the east line of the Arriba, which we hold to be the west line of the Abajo, was located by the judgment in Sullivan v. State, 41 Tex. Civ. App. 89 , 95 S. W. 645 , at about where they claim it to be. If so, we think that it was erroneously located. That judgment did not locate the lines of the Abajo, which is the issue here, and we do not think that the judgment in that case estops the state from insisting upon the true location of the Abajo. We infer from the opinion in the Sullivan Case, supra, that the court held that there was a vacancy between the Arriba and the Abajo. If so, the court was evidently of the opinion that the Abajo was located about whei’e the judgment of the trial court in the instant case locates it, which judgment we find is sustained by the evidence. To our minds, the most serious question urged by the appellants against our decision herein is as to innocent purchasers. On the other hand, we think there is much force in the cross-assignment of appellees that, in view of the facts, the title of Villareal was at most an inchoate equitable title, and, as he and his heirs never occupied the same later than 1850 or I860, that they were thereafter citizens of a foreign country, that they made no effort to prove up their claim under the act of 1850, and did not bring suit against the state to establish the same, as they might have done under several acts of the Legislature of this state, and have never paid any taxes on said land, it ought to be held that they had abandoned their claim to said grant. However, after due consideration, we have concluded to stand by our original decision herein as to these issues. For the reason that we do not believe that any error appears of record in this case, we set aside the judgment rendered by us on motion for rehearing filed herein on March 29, 1917, in so far as it relates to recovery by the state, and overrule appellants’ motion' *302 for rehearing in all other respects, and we overrule all other motions for rehearing, and reaffirm our original decision herein. Motion overruled. Judgment of trial court affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9830128. Public record. Not legal advice.