Coleman v. Smith

• Decision Date: 17 May 1881
• Docket Number: Case No. 2652.
• Citation: 55 Tex. 254
• Parties: J. H. COLEMAN v. ALFRED SMITH.
• Court: Texas Supreme Court

55 Tex. 254

J. H. COLEMAN

v.ALFRED SMITH.

Case No. 2652.

Supreme Court of Texas.

May 17, 1881.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

This suit was brought by Coleman to recover of Smith a tract of one hundred and two acres of the Burleson league. The tract is described accurately by metes and bounds. The petition is in the ordinary form in trespass to try title, and concludes also with a prayer for an order of survey of the land, that the lines may be plainly marked and corners established, and for general relief. In effect, the suit was one to establish the boundary line between the plaintiff and defendant.

The order of survey was granted, and the survey made by Campbell, the county surveyor, and returned and filed.

The defendant answered not guilty. He set out in his answer that he was the owner of a tract of one hundred and two acres, adjoining and immediately north of the land described in the plaintiff's petition; that one Wm. Black, who, in 1871, owned the tract claimed now by plaintiff, made an agreement with defendant for settling their division line, to procure a surveyor, who should run the line between them, and that the line so run should be the true line of division; that the line was run by Campbell in pursuance of this agreement, and was then agreed to and acquiesced in, the parties moving their fences and inclosures to conform thereto; that Coleman bought the land from Black and claims under him, and had full knowledge of these facts, and had the line so established pointed out to him before he purchased.

The plaintiff replied, admitting the ownership by the defendant of the adjoining land, but denying the agreement to abide by the line to be run by the surveyor, Campbell, and alleged that Smith fraudulently concealed from Campbell the location of the true line, which he knew; and that if Campbell ever established any line between Black and Smith, he was misled by Smith and deceived, and caused to run a different line from the true one.

The case was submitted to a jury, who found for the defendant.

F. W. Chandler and James B. Morris, for appellant, argued at length that the facts were not sufficient to sustain the verdict, and cited as authority for their position against the conclusiveness of the agreed line, 2 Overton, 304;Newson v. Prior, 7 Wheat., 7;13 Pick., 267;12 Mass., 469;Bolton v. Lann, 16 Tex., 96;Bragg v. Lockhart, 11 Tex., 163;Mitchell v. Burdett, 22 Tex., 634; Story's Eq., sec. 151; Floyd v. Rice, 28 Tex., 343;McArthur v. Henry, 35 Tex., 801;New Orleans v. United States, 10 Pet., 734;Lewis v. San Antonio, 7 Tex., 319; Kerr on Fraud and Mistake, p. 433.

Sheeks & Sneed, for appellee, relied on Brown v. Caldwell, 10 S. & R., 114; George v. Thomas, Smith v. Russell, 37 Tex., 256;Houston v. Sneed, 15 Tex., 307;Hoxey v. Clay, 20 Tex., 582;Bolton v. Lann, 16 Tex., 112;Stroud v. Springfield, 28 Tex., 665;Welder v. Carroll, 29 Tex., 332;Smith v. Russell, 37 Tex., 255.

QUINAN, J. COM. APP.

The assignment of errors assigns many errors as committed upon the trial, but in a way so indefinite and uncertain as for the most part to obviate the necessity of any special consideration of them on our part. We shall discuss those only which the appellant relies upon in the briefs of his counsel.

The points made in the briefs are:

1. That the court erred in the admission of testimony and in the rejection of testimony, as shown by three bills of exception.

2. That the court erred in giving and refusing charges asked.

3. That the evidence does not sustain the verdict and judgment.

The plaintiff's first bill of exceptions shows by the statement of the judge that plaintiff offered to prove by a witness, that, upon certain field notes offered in testimony, there was a mistake apparent upon the face of them; and the judge ruled that the witness should not state to the jury that it appeared by the field notes that there was a mistake in them, because, if the mistake is manifest on the field notes, the field notes themselves are the best evidence of the fact; the court did not rule that the plaintiff could not prove the mistake by any evidence. This ruling of the judge was manifestly correct. The assumed error was, that the plat showed the width of lot No. 1 at its west end was intended to be 415 varas wide, and that the call in the field notes for said line to be 1,250 varas long, not 415, was a clerical mistake. If this were so, the exhibition of the plat and field notes was evidence of it, and it was the business of the jury to determine the fact. It needed the oath of no witness to draw for them the proper deduction to be drawn from the testimony.

The second bill of exception is that the court permitted J. W. Smith to testify that before he sold the land now claimed by plaintiff (which had been allotted to him by the partition of his father's estate), the defendant claimed a certain point to be the west end or corner of the dividing line between them, and that Abner Matthews also had so told him. This bill of exceptions does not state on what ground this testimony was objected to. If the testimony was objectionable, it was incumbent on the objector to specify his grounds of objection, otherwise his objection will not avail. But the testimony does not seem improper. That the defendant claimed to a certain line when the witness owned the contiguous land, and that the same had been pointed out to witness as the line or corner by Matthews, who made it as commissioner in making partition between the lands of witness and defendant, Matthews now being dead, was competent testimony to show where the corner was, and the extent of defendant's claim. Stroud v. Springfield 28 Tex., 665.

His third bill of exceptions is to the refusal of the court to permit him to read the transcript of the record in the supreme court in the Chambers case, which contained a copy of depositions of Reuben Hornsby, Sr., and Reuben Hornsby, Jr., offered to show the unreliability of the memory of Reuben Hornsby, Sr., who had in this case been asked, and answered, that in that case he had never testified. Certainly the testimony was not admissible. That transcript could only prove that certain papers were copied in it; but whether Reuben Hornsby testified in the Chambers case, it tended not in the slightest legal way to establish. If it were sought to prove that fact, it could have been shown by the officer who took his deposition, or by the production of the depositions, and proof of his handwriting thereto. But a copy of a deposition contained in the transcript in the supreme court was wholly inadmissible for that purpose.

The second and material question presented is, whether the judge erred in giving or refusing charges.

It is insisted that the third and seventh paragraphs of his charge are inconsistent and contradictory, and tended to mislead the jury.

These paragraphs are as follows:

“3. If, therefore, you find that the parties did not then find the true line, that the line was established by mistake, or by fraud or misrepresentation of the defendant, you will disregard the line so established, and find for the plaintiff or defendant, according to the evidence in the case.”

“7. If there was an agreement to establish a line between the owners of adjoining lands, and by agreement the line was established and acquiesced in by both, such agreement would be binding upon the parties and their vendees in the absence of fraud or misrepresentation; but if the agreement was only to make an attempt to find the true line, the line so found, if not the true one, is not a line established by agreement.”

That the third paragraph just quoted was quite as favorable to the appellant as he could well claim, does not admit of controversy. Read in connection with what immediately precedes it, it will be seen that it has application rather to an attempt to ascertain whether the true line could be found as fixed by the partition than any agreement for the adjustment and settlement of the boundaries between the parties. It is not for plaintiff to complain of the charge.

The seventh paragraph evidently has relation to the agreement for that purpose given in testimony,--a deliberate agreement for the running of their dividing lines, for the purpose of settling and defining that which was unsettled and obscure. And in such case we do not doubt that an agreement to establish their lines, and the lines established and acquiesced in by both parties, would be binding on them and their vendees, in the absence of fraud or misrepresentation. This charge is not necessarily erroneous or misleading because the word mistake is not included expressly. In truth, its use might rather have misled the jury than otherwise, by conveying the idea that if the line so agreed upon were not the true line, therefore other parties would not be bound by it. But the validity of an agreement for the settlement of the boundary does not depend at all upon the accuracy with which the line is run. Whether the parties were right or wrong in their belief that the line they established and agreed upon as the boundary of their lands was precisely where it ought to be, or where the original surveyor made it, was wholly immaterial. It was enough if there were doubt or dispute between them about it, and they determined to settle it upon that basis. If absolute exactness in defining the line were necessary to render such an agreement binding, it is not easy to perceive how it could be attained. Different surveyors with different instruments might locate the true line at different places. An agreement made to-day upon the survey of one, might be set aside to-morrow upon that of another, perhaps no less skillful or accurate. This would be to make agreements nugatory; whereas they are to be encouraged, favored and upheld, especially in these cases of doubtful boundaries. Such cases are proverbially vexatious, and breed ill-blood; and they are very apt to...