Edwards v. Smith

• Decision Date: 05 June 1888
• Citation: 9 S.W. 77
• Parties: EDWARDS <I>et al.</I> <I>v.</I> SMITH <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 77

EDWARDS et al.

v.SMITH et al.

Supreme Court of Texas.

June 5, 1888.

Commissioners' decision. Appeal from district court, Travis county.

This was an action of trespass to try title, brought in the district court of Travis county on the 14th of November, 1884, by Mary A. Smith and her husband against Francis T., Alf.R., Joseph R., and W. C. Burlage, Kate J. Edwards, Joseph Fisher, George Holdstock, and Robert G. Sheldon, to recover lot 5, in division E, in the government tract adjoining the city of Austin.The Burlages and Kate J. Edwards answered by pleading not guilty, and the three, five, and ten years statutes of limitation.The defendants Fisher, Holdstock, and Sheldon answered by filing a general and special demurrer, a plea of not guilty, the three, five, and ten years statutes of limitation, and each filed a plea of improvements in good faith.A trial by jury resulted in a general verdict for plaintiffs, and some special findings relative to improvements not necessary to be stated.The judgment of the court was that plaintiffs recover of defendants a strip of land 202 feet wide, described in said judgment, and costs.From this judgment defendantsJoseph Fisher and Kate Edwards perfected an appeal.

Osceola Archer and Carleton & Morris, for appellants.Rector, Moore & Thompson, for appellees.

MALTBIE, J.

The question in this case is as to the boundary of outlots 4 and 5, division E, of the city of Austin.The lots have a common boundary.Appellants own lot 4, and appellees own lot 5.There are no field-notes to these lots.They were first sold by the comptroller, acting for the state of Texas, according to a map which he had and exhibited at the sale in 1851.This map was a copy of a map made in 1840, which is now in the land-office, but is obliterated to such an extent that the boundaries of these lots cannot be ascertained from it.There is a map in the land-office which purports to be a copy of the old map of 1840, which is in use in that office, and which the officials recognize as correct, but it seems that no one has tested its accuracy by a comparison with the map of 1840.The map used by the comptroller is missing.The land-office maps and two private maps, one of which was in use by the city officials of Austin, were in evidence in this case.The land sued for was described in plaintiffs' petition as being in the city of Austin, county of Travis, and state of Texas, and as being "all of lot No. 5, in division E, in the government tract adjoining the city of Austin, and patented to Hutson Aiken, assignee of Sebron G. Sneed, on the 7th day of July, A.D. 1851, patent No. 193, vol. 2, as will more fully appear by reference to the plan of said tract on file in the general land-office of Texas."There was no further description.The defendants Fisher, Holdstock, and Sheldon specially excepted to this description of the property sued for, because it did not sufficiently identify the same so that the possession thereof could be delivered to the successful party in the suit.The court overruled this exception, and defendants took their bill of exceptions.

It does not appear from this pleading that the land cannot be identified from the description given, and for this reason there was no error in overruling the exception.Nor was there error in admitting in...