Blackwell v. Coleman County

• Decision Date: 06 December 1900
• Citation: 59 S.W. 530
• Parties: BLACKWELL et al. v. COLEMAN COUNTY.
• Court: Texas Supreme Court

Page 530

59 S.W. 530

BLACKWELL et al. v. COLEMAN COUNTY.

Supreme Court of Texas.

December 6, 1900.

Certified question from court of civil appeals of Third supreme judicial district.

Action by W. N. Blackwell and another against Coleman county. From a judgment in favor of defendant, plaintiffs appeal, and the court of civil appeals certified a question to the supreme court. Question answered.

Jenkins & McCartney and T. J. White, for appellants. J. R. Baker, J. A. B. Miller, and Sims & Snodgrass, for appellee.

WILLIAMS, J.

The certificate of the court of civil appeals is as follows: "The action was brought by Coleman county against W. H. Rutherford and W. N. Blackwell. The action was based on a promissory note executed by W. N. Blackwell to Coleman county, and to foreclose a vendor's lien on the land in controversy. The defendant in error, Coleman county, recovered judgment for the amount sued for, with a foreclosure of the vendor's lien upon the land. The court of civil appeals, as a part of this certificate, finds the following facts: The note in question was executed by W. N. Blackwell in favor of Coleman county as a part of the purchase price for land sold by Coleman county to Blackwell, which is alleged by the county to be a part of a survey situated in Coleman county, located for that county, known as the `Coleman County Survey.' Thereafter Blackwell sold to plaintiff in error W. H. Rutherford, who assumed the payment of the note in question to Coleman county. Plaintiff in error Rutherford, as a defense to the action, pleaded that there was a failure or want of consideration in part for the note sued upon by reason of the fact that at the time of the sale by Coleman county to Blackwell, and at the time that the note was executed, and thereafter, that part of the Coleman county survey which was conveyed to Blackwell, and which he purchased from Blackwell, was public vacant land, and that Coleman county had no title thereto, and that thereafter the plaintiff in error acquired title to the land in controversy by location and patent from the state. We find that the field notes of the Coleman county survey, in attempting to give the boundaries of the same, call for the lines of older surveys, which lines, in some instances, can only be established by running course and distance from a few corners which are found upon the ground; and, if the calls for the lines of these older surveys shall control, it will embrace and include the land in controversy, and, if such is the case, the land would not be vacant and unappropriated public domain at the time it was sold by the county. We also find that there are calls in the field notes of the Coleman county survey for course and distance, which, if they should prevail, would leave a part of...