SORSBY v. STATE
624 S.W.2d 227 (1981)
Court of Civil Appeals of Texas, Houston (1st Dist.).
July 30, 1981.
Emily Smith deeded the same 640 acres covered by certificate number 51 to R. B. Hannay on August 1, 1853, and Mr. Hannay conveyed the same two Solomon Smith 320 acre tracts to H. L. Rankin on November 5, 1854. Mr. Rankin conveyed the land back to Mr. Hannay two years later, and in 1856 Mr. Hannay conveyed the 320 acres tract which includes the 90.44 acres in question in this case to R. J. Swearingen and Jared E. Kirby. When Jared Kirby died, his widow, Helen Kirby, was appointed administratrix of his estate, and she petitioned the district court of Austin County to partition between herself and the Jared Kirby estate the called 220 acres which included the subject tract. Several documents in the summary judgment evidence show that commissioners were appointed to partition such land, that Helen Kirby was alloted the called 110 acres which include the subject tract, and that portions of the 110 acres allotted to the Jared Kirby estate were sold by it.
On November 14, 1874 J. T. Swearingen, et al., children of R. J. Swearingen and his wife, both of whom were then deceased, conveyed to their sister, Helen Kirby, "320 Acres known as the Solomon Smith Three hundred and twenty acre survey bounded N by the J. F. Martin 640 Survey — E by a survey made for NW Bush South by 640 Survey patented to John Law & West by a 320 Survey Patented to D. Boon." On October 18, 1977, Helen Kirby et al., conveyed to R. B. Hubbard, Governor of the State of Texas, and his successors in office, several parcels of land, one of which is the tract in question.
Appellants' claim to the subject land is based on limitation and juridical possession. No common source of title is involved.
The appellants assert that the State has failed to establish its title as a matter of law, that genuine issues of material fact were presented, that the trial court erred in finding and relying upon presumptions that the State accepted Helen Kirby's proffered gift of the subject lands for a specified use and that the court erred in entering a judgment approving the commissioners' report confirming the partition of lands between Helen Kirby in her individual capacity and in her capacity as administratrix of the Jared Kirby estate.
Appellants assert that the description in the August 26, 1856, deed from R. B. Hannay to R. J. Swearingen and Jared E. Kirby does not encompass all of the subject land and that the deed from Helen Kirby and P. H. Swearingen to Governor Hubbard passed no title to the State. There were two instruments executed by R. B. Hannay involving the Solomon Smith and John Laws surveys. The first was an agreement dated July 12, 1856, between R. B. Hannay and R. J. Swearingen reciting that on that day Hannay had sold to Swearingen for $5,960 three specified tracts, including 320 acres of land granted to the heirs of S.
Smith Decd" at one dollar per acre. The agreement recited that the lands were to be surveyed and that the agreed total price would be adjusted if the acreage was found to be different from that recited. The first payment was to be made on or before January 1, 1857, at which time Hannay agreed to furnish to Swearingen "a good and sufficient title...."
The Hannay deed dated August 26, 1856, names R. J. Swearingen and J. E. Kirby as grantees and contains a metes and bounds description of the land previously designated. That metes and bounds description is identical to the field note description of the Solomon Smith and John Laws Surveys which is attached to the John Laws Survey Notes and which is covered by both Hannay instruments. Although the patented plat and field notes of the 320 acres of the Solomon Smith survey differ somewhat from the metes and bounds description in the Hannay deed, the difference is reconciled and understood through reference to the John Laws Survey plat which existed when the conveyance was made. When the two instruments are read together, they provide a legally sufficient description of the Solomon Smith survey, including the subject tract, and are sufficient to pass title to the entire survey.
The Sorsbys next urge that even if the land here in question was sufficiently identified in the deed from Hannay to Swearingen and Kirby, there was no summary judgment proof that the subsequent deed of October 18, 1877, from Helen Kirby and R. J. Swearingen to Governor Hubbard effected a transfer of title to the subject land to the State because: (1) the land was insufficiently described in the deed from Helen Kirby et al. to Governor Hubbard; (2) there was no summary judgment proof that the State accepted the donation of the subject land from Helen Kirby et al.; (3) if the State could and did accept the Kirby gift, the title to the subject land was lost when it was not used for the purpose specified in the October 18, 1877, deed; (4) the partition between Helen Kirby and the estate of Jared Kirby, which is part of the State's chain of title and is relied upon for the sufficiency of description, was void and should not have been considered as summary judgment proof because (i) the county court of Austin County lacked subject matter jurisdiction; (ii) the commissioners' report of the partition never was approved or confirmed by the court; (iii) there was a misjoinder of parties in the partition action, inasmuch as the necessary parties were not present and because Helen Kirby was disqualified as administratrix of Jared Kirby's estate to stand in judgment against herself in her individual capacity; (iv) because of legally insufficient descriptions in the deeds into Kirby and because appellants' predecessors in interest perfected limitation titles in the subject acreage, the parties to the partition did not own the lands partitioned; and (v) the description contained in the partition report was insufficient to identify the 110 acre tract awarded to Helen Kirby therein. We overrule these points.