Harne v. Smith

• Decision Date: 20 January 1891
• Citation: 15 S.W. 240
• Parties: HARNE v. SMITH.
• Court: Texas Supreme Court

15 S.W. 240

HARNE v. SMITH.

Supreme Court of Texas.

January 20, 1891.

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

Trespass to try title by W. T. Harne against Sophie M. Smith. Judgment for defendant, and plaintiff appeals.

Andrews & Lessing, for appellant. Herring & Kelley, for appellee.

COLLARD, J.

Appellant's first assignment of error is to the effect that the court erred in overruling plaintiff's exceptions to defendant's trial amendment, setting up an agreed boundary and division line by acquiescence and estoppel, because there was no consideration for such agreed boundary; that, the divisional line being certain of ascertainment, there could be no such dispute or doubt concerning it as to form the basis of an agreed boundary, "and because acquiescence alone will not suffice to fix a conventional line for a true one if the true one can be ascertained, and the amendment discloses no facts estopping plaintiff from recovering his land to the true line." The exception referred to was made to the original answer, "wherein defendant set up an estoppel against plaintiff on account of boundary by agreement, and acquiescence, and says the facts alleged do not create an estoppel." The allegation in the original answer merely alleged that Herring, more than 13 years ago, then owner of the N. W. ½ of the 10 acre lot, with the consent, acquiescence, and approval of defendant, built a fence along a line which was then conceded and agreed to by said Herring and defendant to be the true division line, etc. This exception was sustained by the court in so far as the answer failed to show that any dispute had arisen when the agreement is alleged to have been made. The trial amendment was then filed by leave of the court, wherein it is alleged, in addition to what had been before alleged, that the true location of the lot was not well defined and known, and various surveys had left it uncertain. It was also alleged that, "in consideration that Herring, at his own expense, would build a good and sufficient fence dividing said lot as then inclosed from east to west equally, it was agreed by and between defendant and said Herring that said fence should belong equally as a division fence of said lot to said Herring and defendant, and should be held as the true divisional line of said lot; that said fence was built in 1875 or 1876, and has ever since been held, regarded, and acquiesced in as the true division line until this suit was brought." We understand that, where parties are in doubt as to where the true division line between them of their lands may be, they may fix it by parol agreement which would be mutually binding upon them, even though they were mistaken as to its true locality. Where the parties know where the divisional line was, such an agreement would not, it is said, be binding, because it would be a parol conveyance of land, and contrary to the statute of frauds. 1 Waite, Act. & Def. pp. 718, 719; George v. Thomas, 16 Tex. 89; Coleman v. Smith, 55 Tex. 259; Browning v. Atkinson, 46 Tex. 608, 609. The true rule is stated by Judge QUINAN in Coleman v. Smith, 55 Tex. 259, after exhaustive research. He says: "Whether the parties were right or wrong in their belief that the line they established was precisely where it ought to be, was wholly immaterial. It is enough if there were doubt or dispute between them about it, and they determined to settle it upon that basis." See the case and authorities there cited. We think the averments in the trial amendment as to uncertainty of the boundary sufficient to predicate an agreement upon fixing the division line between the adjacent owners. The court below, in our judgment, did not err in overruling the exceptions to the trial amendment, because, if the facts alleged were true as to the agreed division line, it was binding upon Herring and his vendees.

The next assignment of error insisted on by appellant is that the court below erred in finding that defendant and plaintiff's vendor, Herring, had...