Cox v. Finks

• Decision Date: 09 June 1897
• Citation: 41 S.W. 95
• Court: Texas Court of Appeals
• Parties: COX et al. v. FINKS et al.

41 S.W. 95

COX et al. v. FINKS et al.

Court of Civil Appeals of Texas.

June 9, 1897.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by J. H. Finks and others against T. B. Cox and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

John W. Davis, Felix H. Robertson, and Robt. H. Rogers, for appellants. A. P. McCormick and Clark & Bolinger, for appellees.

KEY, J.

Appellees brought this suit in form of trespass to try title to 951 acres of land, making T. B. Cox and several other persons defendants. The land sued for is somewhat in the shape of a letter "L," and, as claimed by the plaintiffs, laps around, and joins the Nancy Burwell survey on the north and west. The defendants, claiming on the north, disclaimed as to all the balance of the land, and obtained a severance from the other defendants; and upon trial the court instructed the jury to return a verdict for the plaintiffs, which was done, and judgment rendered accordingly. The case is mainly one of boundary, though some objections are urged against the plaintiffs' title, and these objections will be considered first.

The plaintiffs claim the land on the north of the Burwell survey,—which embraces the land in controversy in this case,—First, under a purchase from the state under the act of March 29, 1887, known as the "Scrap Act"; and, second, under a location and survey made by virtue of a Confederate veteran certificate for 1,280 acres, issued under the act of April 1, 1887. This location covers the entire 951 acres, while the purchase under the "Scrap Act" includes only 597 3/5. The plaintiffs claim that, until acquired by them, there was a vacant strip of land between the Burwell and other surveys on the north 633½ varas wide, and a like vacant strip between the Burwell and other surveys on the west, about 545 varas wide. Counsel for the defendants contend that as these two strips are connected, and form a tract of 951 acres, and the scrap act is limited to vacancies not exceeding 640 acres, the plaintiffs could not purchase any portion of the 951-acre tract under that act. Counsel for plaintiffs reply that the defendants who are now complaining have disclaimed as to the land on the west of the Burwell survey, have severed from the defendants who claim on the west, and therefore can raise no question as to whether or not there is a vacancy on the west. This position is untenable, because, if there was a vacancy on the west of the Burwell survey, the entire and connected vacancy exceeded 640 acres, and was not subject to sale under the scrap act. The existence of such vacancy on the west of the Burwell is not so manifest from the testimony as to justify us in declaring, as a matter of law, that the entire vacancy exceeded 640 acres; and therefore, if the plaintiffs had no other title than their purchase from the state, it would be necessary to reverse the case, notwithstanding the vacancy on the north of the Burwell, in order that the jury might decide whether or not there was a vacancy on the west.

Appellants also assail the plaintiffs' title under the certificate, though the objections thereto are not very clearly stated in appellants' brief. If, however, it was intended to claim that this case comes within the doctrine announced in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S. W. 58, wherein it was held that, unless contiguous surveys were made for the school fund, unpatented locations made by virtue of such certificates would not support an action of trespass to try title, if the ruling there made is not in conflict with the later case of Smith v. McGaughey, 87 Tex. 61, 26 S. W. 1073, and if the former case should have been followed in the court below (which we do not decide), it seems to us that the error is now harmless, because the 25th legislature has passed a law validating locations made under such certificates, the second section of which, in our opinion, will validate the title under the certificate in this case. It is true, the law referred to will not take effect until 90 days after the adjournment of the regular session of the 25th legislature; but it will become operative and validate whatever defect exists in the plaintiffs' title before this case could be retried in the court below, and finally disposed of by the appellate courts. Courts are not required to do a useless act; and although we should hold that the plaintiffs' title, under the certificate location and under the law as it now exists, is not sufficient to maintain their action, as it will inevitably follow that said title will be valid and entitle them to recover before the case can be finally disposed of, a reversal would not result in any benefit to appellees. If the condition of the case were such that this court could reverse, and render a judgment for the defendants, our ruling might be different. But as the validity of the plaintiffs' title under their purchase from the state is dependent upon a question of fact, which the parties are entitled to have submitted to a jury, the most that we could do for the relief of the defendants would be to reverse the judgment, and remand the cause for another trial; and, as already explained, that would be a useless formality, resulting in no benefit to any one. We therefore decline to reverse the judgment on account of alleged defects in the plaintiffs' title.

The action of the court in peremptorily instructing the jury to find for the plaintiffs, and in refusing several special charges asked by the defendants, is made the subject of complaint in appellants' brief, and has received extended and careful consideration at the hands of this court. If, tested by correct rules of law, the facts established by the undisputed testimony show the existence of a vacancy on the north of the Nancy Burwell survey, as contended by counsel for appellees, then it was not error for the court to direct the jury to return a verdict for them. Two junior surveys (the Williams and the Rose) lie north of the Burwell survey; and, while they call for the north line of the Burwell, it is conceded by counsel for appellants that they are so tied by other and superior calls as to limit their east and west lines to the distances called for in their field notes. Therefore, if the east and west lines of the Burwell do not extend as far north as the south lines of the Williams and Rose surveys, a vacancy exists between. The field notes of the Burwell survey are as follows: "Beginning at the N. W. corner of a survey made for James Stewart in the E. line of a survey made for M. L. Birdsall, for the S. W. corner of this survey, from which a cottonwood, marked F, bears N., 28 W., 78 varas; thence N., 28 W., 80 varas, a branch, 490 varas, crossed Bull Hide, 2,674 varas, a mound for the N. E. corner; thence S., 62 W., crossing Bull Hide creek, 4,862 varas, to the N. W. corner mound; thence S., 28 E., 2,674 varas, to the beginning." The field notes of the West James Stewart survey (the northwest corner of which is called for as the beginning of the Burwell survey) read thus: "Beginning at the N. W. corner of the survey made for Ambrose Hall; running from thence N., 28 W., 556 varas, to the N. E. corner of a survey made for Duke Faulkner; thence N., 62 E., 356 varas, to the S. E. corner of a survey made for M. L. Birdsall, from which an elm, marked F, bears N., 26 E., 34 varas; a willow, marked H, bears S., 89 E., 30 varas; thence N., 28 W., 784 varas, to a mound for the N. W. corner of this survey; thence N., 62 E., 3,275 varas, to the N. E. corner of this survey; thence S., 28 E., 1,583 varas, to the S. E. corner, also the N. E. corner of a survey made for Eustus Yeaman; thence S., 62 W., 1,637 varas, to the N. W. corner of E. Yeaman thence S., 28 E., 427 varas, to T. Thatcher N. E. corner; thence S., 62 W., 650 varas, to Thatcher's N. W. corner on the E. line of said A. Hall's survey; thence, with said Hall's line, N., 28 W., 670 varas, to his N. E. corner; thence S., 62 W., 900 varas, fork of Cow Bayou, 1,344 varas, to the place of beginning." The field notes of the East James Stewart are: "Beginning at the N. E. corner of another survey, made for James Stewart; running from thence S., 28 E., 1,583 varas, to the S. W. corner of Stewart, also the N. E. corner of a survey of Erastus Yeamans; thence N., 62 E., 2,110 varas, cross Bull Hide creek, 3,300 varas, a branch, 3,423 varas, to the S. E. corner, from which an elm, marked A., brs. S., 62 W., 180 varas; thence N., 28 W., 1,583 varas, to a mound for the N. E. corner; thence S., 62 W., 1,500 varas, a creek, 1,590 varas, Bull Hide creek, 3,423 varas, to the beginning." The field notes of the James Sprowl survey run thus: "Beginning at the S. E. corner of a survey made for Nancy Burwell, from which a cottonwood, marked—, bears N., 28 W., 78 varas, for the S. W. corner of this survey; running from thence N., 28 W., 80 varas, a branch, 490 varas, Bull Hide creek, 2,972 varas, to a mound on the N. W. corner; thence N., 62 E., 1,823 varas, to the N. E. corner of this survey; thence S., 28 E., 2,972 varas, to the S. E. corner, also the N. W. corner of the James Stewart survey; thence S., 62 W., 1,500 varas, a creek, 1,590 varas, recross Bull Hide creek, 1,823 varas, to the beginning." The field notes of the John Brown No. 2 are: "Beginning at the N. W. corner of survey No. 1, made for John Brown for the S. W. corner of this survey, running from thence N., 28 W., at 728, 1,138, and 1,965 varas, crossed branches at 2,010 varas, passed a spring 2,448 varas, to the N. W. corner of this survey, a mound; thence N., 62 E., 510 varas, cross Bull Hide creek, 1,690 varas, a branch, 1,700, N. E. corner, from which an elm, marked A, brs. S., 62 W., 125 varas; thence S., 28 E., 2,448 varas, to the S. E. corner, from which an elm, marked D., brs. N., 68 E., 100 varas, being the N. E. corner of said survey No. 1; thence S., 62 W., 60 varas, Bull Hide creek, 1,700 varas, to...