Hollingsworth v. Holshousen

• Decision Date: 01 January 1856
• Citation: 17 Tex. 41
• Parties: HOLLINGSWORTH v. HOLSHOUSEN.
• Court: Texas Supreme Court

17 Tex. 41

HOLLINGSWORTH

v.HOLSHOUSEN.

Supreme Court of Texas.

1856.

A location which is sufficiently specific and certain to identify the land which it is intended to appropriate, if followed by a timely survey, is an appropriation of the land, as well before as after the survey.

A plea that the plaintiff fraudulently procured the land to be surveyed and patented to himself, well knowing at the time he procured the survey to be made, that he, the defendant, had previously appropriated the land by his location and survey, means plainly that the defendant had first appropriated the land by a location and survey anterior to any right in the plaintiff, and is not liable to objection on the ground that it does not exclude the conclusion that the plaintiff had made the first location.

Certainty to a certain intent in general, which it is said means what upon a fair and reasonable construction may be called certain, without resorting to possible facts which do not appear, is always sufficient in a plea in bar.

The defendant in an action of trespass to try title to land may plead his defenses specially, and if he do so, the plaintiff must allege any matters which he has in avoidance, but it is not necessary for him to allege facts which rebut, contradict, explain or disprove such special pleas. [7 Tex. 338;9 Tex. 385;11 Tex. 662;28 Tex. 649.]

Quære, whether notice of matter in avoidance of a special plea in an action of trespass to try title will dispense with the necessity of pleading it.

It would seem that where exceptions are sustained to a special plea in an action of trespass to try title, but the defendant introduces the same defense under the general issue, and had notice at a previous term of the matter in avoidance of such special defense introduced by the plaintiff, this court would treat the ruling on the exceptions to the special plea as a mere irregularity for which the judgment would not be reversed.

What will be a sufficiently certain assignment of error in the charge, or when it will be necessary to ask instructions to correct an error or supply an omission in the general charge of the court, can never be matter of general definition, or general rules, which will be applicable in all cases.

The mere occurrence of an immaterial error, or error in some matter of minor importance (in charge to the jury), which manifestly has had no influence upon the decision of the case, will not authorize a reversal, though made the subject of an exception and assigned as error.

Nor will error (in charge to the jury) which has been acquiesced in by the parties at the trial, though assigned as error, when there is not good reason to apprehend that it may have misled the jury, to the prejudice of the party.

Yet, when it is evident that the verdict of the jury has been made to turn upon an erroneous charge, and the judgment upon the merits is thus founded on error, I apprehend this court would not feel itself authorized to decline its revision, if necessary to attain the law and right of the case, though there was no complaint of the charge at the trial, or even though the assignment of error was general; upon the principle either that the error was too apparent and palpable to escape observation, or that where the objection goes to the foundation of the action, or to the very right and justice of the decision on the merits, the court will consider it, though not specially assigned as error. [10 Tex. 33;11 Tex. 572.]

Without attempting to deduce a general rule of universal application, it will suffice for the present to observe, that it has been the practice of the court to revise the judgment upon a general assignment of error in the charge, where there is a material error apparent, which there is reason to believe influenced the verdict of the jury to the prejudice of the party.

The charge proceeded upon the principle that the question of abandonment (of a previous location) was one of law, to be determined upon the facts recited in the charge; and that the jury were only to ascertain the existence of those facts, and apply to them the law as given in the charge; which was, in effect, to decide the case, as the facts were unquestionable; whereas, the question was one of fact, to be decided by the jury, upon all the circumstances of the case.

A party may abandon his location or survey at any time before his certificate is merged in a patent, provided he does not thereby interfere with the rights of any other person. And evidence of any unequivocal act, indicative of such intention, is sufficient to authorize a jury to find the fact of abandonment. [[[[[[3 Tex. 344;26 Tex. 270.]

The title to John Scott appearing to have been regularly issued and of record in the general land office, the defendant was entitled to the presumption that it was a valid subsisting title, until the contrary was made to appear.

The land within the limits of the survey, prima facie, was not vacant; the survey upon it, on the certificate of Gray, conferred no right; was merely void, and did not merge the certificate, or prevent the location of it elsewhere upon vacant land.

The commissioner of the general land office has authority to give copies of maps, as well as titles, of record in his office; and his certificate may undoubtedly be received to show the connection of the maps with the titles, and thus, it seems to show prima facie that a subsequent survey conflicts with a prior one.

Whether the certificate of the commissioner of the general land office to facts contained in the papers, documents or records of his office, though contemplated by the statute (Hart. Dig. art. 1352), is admissible in evidence, quære.

Appeal from Rusk. The transcript in this case not being found in the clerk's office, the reporters are unable to give a statement of the case.S. P. Hollingsworth, for appellant.

S. P. Donley, W. B. Ochiltree, for appellee.

WHEELER, J.

It will be proper to notice the ruling of the court upon the pleadings, and the admissibility of the plaintiff's evidence under them, as much of the elaborate arguments of counsel have been devoted to this branch of the case, and it may become of some importance hereafter; though our opinion, in disposing of the case, will proceed upon other grounds.

The appellant, who was defendant below, insists that the court erred in sustaining exceptions to his special pleas, and admitting evidence in avoidance of his evidence of title introduced under the plea of “not guilty,” without averment by the plaintiff of the matter in avoidance of his title.

It was the right of the defendant to plead specially his defenses if he saw proper, though they were equally available under his plea of not guilty. (Hunt v. Turner, 9 Tex. 385.) The pleas were excepted to on various grounds; but those now relied on in support of the judgment are: 1st. That the defendant did not aver that the plaintiff had not a location on the land prior in point of time to the defendant's location and survey. 2d. That the defendant, having been allowed to avail himself of his defenses under the plea of not guilty, has sustained no injury by the ruling of the court sustaining exceptions to the pleas.

Where the equities of the parties are in other respects equal, unquestionably the one having the prior location has the better right. Therefore, the mere fact that the defendant had the elder survey would not entitle him to the land, if the plaintiff had the prior location. But where nothing appears in respect to any location anterior in date to the survey, that must be taken to be the inception of the title. The land may be appropriated by a location anterior to the survey; or by a survey, without any prior location other than the act of pointing out or designating the land to be surveyed at the time. The patent, when obtained, will relate to the inception of the title; and he who first appropriated the land, in either mode, will have the better right and title, unless his equity is impaired by the circumstances of the case. A location which is sufficiently specific and certain to identify the land which it is intended to appropriate, if followed by a timely survey, is an appropriation of the land, as well before as after the survey. It cannot be denied, therefore, that if the plaintiff had the prior location he had the better title, though the defendant had the elder survey. Relying on the priority of right, in order to show a prior equity in himself and avoid the plaintiff's patent, it was necessary for the defendant to show by his plea with reasonable certainty, that he had first appropriated the land. This, we think, he does when he avers the priority of his survey to the plaintiff's, and that the plaintiff fraudulently procured the land to be surveyed and patented to himself, well knowing at the time he procured the survey to be made, that he, the defendant, had previously appropriated the land by his location and survey; the plain sense and meaning of which is, that the defendant had first appropriated the land by a location and survey anterior to any right in the plaintiff. This, we think, appears by the averments to a sufficient and reasonable certainty; which is defined or rather described by Lord Coke, as certainty to a certain intent in general (Coke Litt by Thomas, p. 288), which, it is said, means what upon a fair and reasonable construction may be called certain, without resorting to possible facts which do not appear (9 Johns. 317), and is always sufficient in a plea in bar. To require the defendant by averment expressly to negative that the plaintiff had any “file” or location prior to his survey and that of the plaintiff, would be to require such certainty as to preclude all argument, inference or presumption against the party pleading; as it is sometimes expressed, certainty to the exclusion of every conclusion to the contrary, which is technically called certainty to a certain intent in every particular, and is...