Buford v. Bostick

• Decision Date: 01 January 1878
• Citation: 50 Tex. 371
• Parties: T. R. BUFORD ET AL. v. P. BOSTICK ET AL.
• Court: Texas Supreme Court

50 Tex. 371

T. R. BUFORD ET AL.

v.P. BOSTICK ET AL.

Supreme Court of Texas.

1878.

APPEAL from Delta. Tried below before the Hon. Green ?? Clark.

June 1, 1874, T. R. Buford, M. L. Patten, and W. R. Buford brought an action of trespass to try title in the ordinary form against P. Bostick and others, for a tract of three hundred and twenty acres of land located and surveyed in name of Mary Hamilton, with field-notes and survey returned to the general land office.

The defendants pleaded not guilty and limitation of three years.

On the trial, and after plaintiffs had proved title to the certificate and the survey and return of the field-notes to the land office, they offered in evidence a certificate from the commissioner of the general land office certifying the date said field-notes had been returned to the land office, and that they had not been withdrawn from the office. This testimony was excluded, on objection. On the exclusion of the testimony, plaintiffs asked a continuance on the ground of surprise from the exclusion of said testimony, alleging that the testimony was material; that it could be obtained by depositions by the next term, and that they had relied on the opinion of their counsel that the excluded certificate could be used in evidence. The application for continuance was overruled and the case proceeded.

There was much and conflicting testimony touching the marks on trees insisted on as bearing trees for the northwest corner of the survey claimed by plaintiffs and sought to be identified, some witnesses stating that the marks were recent, altered, &c.

The beginning corner of the Mary Hamilton survey was “the southeast corner of a survey in name of James Russell.”

It was shown that the survey cornering as called, was the Ira Ruble survey; that a survey in name of James Russell was several miles distant. There was testimony showing that James Russell had the Ira Ruble survey made, and the survey was called the Russell survey in other adjoining surveys.

The northwest corner of the Mary Hamilton survey called for two bearing trees, one a post-oak marked J. E. and the other marked X. The testimony was conflicting as to these marks found on trees at the places called for. Some witnesses testified that they were recent. Defendants claimed under preemptions and locations made since 1869.

The instructions given the jury are sufficiently shown in the opinion.

The jury returned a verdict for the defendants.

Motion for new trial was urged on the grounds of surprise in the ruling of the court excluding the certificate of the commissioner of the general land office as to the date of the return of the field-notes of the Mary Hamilton survey to the land office, and that they had never been withdrawn.

Also, as ground for new trial, was urged newly-discovered testimony of G. W. Helms, whose affidavit in support of the motion was as follows:

“That some time in the year 1857 or 1858 he bought from A. Skidmore part of his survey that adjoined the Mary Hamilton survey, sued for by plaintiffs in this case; that in surveying said land he ran to the northwest corner of the Mary Hamilton survey, and that he then saw the two bearing trees called for in the Mary Hamilton survey, and that one of them was then marked J. E. and the other was marked X, and at that time they had no other mark on them, and those marks were not mutilated, but were plain and distinct; that these facts he had never stated to the plaintiffs or to their attorneys until since he heard of the statements made by the defendants' witnesses about the trees being mutilated and marked up so no such letters could be found on them, and since the verdict of the jury was rendered in the case; that he has all the time told the plaintiffs and their attorneys as little about the evidence in his knowledge as possible, and it has only been upon being pressed by them that he has told anything to them he knew about the matters involved.”

The motion for new trial was overruled, and plaintiffs appealed.

Sam. J. Hunter, for appellants.

I. The plaintiffs ought to have had a continuance.

It could have worked no injury to the rights of the defendants, and would have enabled the plaintiffs to have procured the evidence necessary to show a good title to the land. We are not yet satisfied that the ruling of the court was correct. We believe that the facts stated in the certificate were such as the officer might certify to. (Paschal's Dig., art. 3806.) We were bound to show that our field-notes had been filed within twelve months from date of survey. (Paschal's Dig., art. 4556.)

II. We think the exclusion of the certificate of the commissioner of the general land office was error, especially where it was offered for the sole purpose of proving the date of filing; (Paschal's Dig., art. 3806;) for we can find no law requiring the commissioner to indorse on papers filed in his office before the 9th day of January, 1859, the word “filed,” and affix the date of filing; and, therefore, as a copy of indorsements would not show the date of filing, it was highly proper for the commissioner to certify to the date of filing.

III. We insist that it was not necessary to prove that Russell was the owner of the Ira Ruble, but only to identify our beginning corner by showing that the survey upon which we begin was called the James Russell about the time our Mary Hamilton was surveyed, and hence the call for it as the James Russell.

We take it that the evidence as to what survey the neighbors called the James Russell was competent to prove our beginning corner; just as if a survey called for a stone, and the stone cannot be found, but we might prove that the stone was once there, or that parties who were dead had said that it was once there, especially if the parties were interested in the land. (7 Monr., (Ky.,) 333; 1 J. J. Marsh., 448;9 Dana, 465; but see further 28 Tex., 649;29 Tex., 332, 333, 335;16 Tex., 92; 3 McC., 229, 259; 30 Tex., 271;Booth v. Upshur, 26 Tex., 70, 71;Bass v. Mitchell, 22 Tex., 294;16 Tex., 112, 565.)

IV. Besides, we think that the newly-discovered evidence was very material, and was not discovered until after the trial, and would certainly establish one of the corners beyond all cavil. Helms was a neighbor to the defendants; lived on adjoining farms; and it is no wonder that he interfered as little in behalf of our clients, who did not reside in that county, as possible.

We believe that the evidence ruled out by the court, as to the marks on the bearing trees at our northwest corner, will, together with the fact that the Ira Ruble was, at the time the Mary Hamilton survey was made, known as...