Hoxey v. Clay

• Decision Date: 01 January 1857
• Citation: 20 Tex. 582
• Parties: ASA HOXEY v. TACITUS CLAY.
• Court: Texas Supreme Court

20 Tex. 582

ASA HOXEY

v.TACITUS CLAY.

Supreme Court of Texas.

1857.

It seems that a call for an intermediate corner, to be S. 45°>>>> W., 160 varas from a certain corner of another tract, will control the calls of the survey for course and distance; although such corner is not established on the ground, and can only be found by running the lines of said other tract.

Where A owned half of a league of land, which half had been previously surveyed, and A and B purchased the other half, and with a view to the partition of the second half, went upon the ground with a surveyor and run out and marked the division line between the half leagues, which was a broken line, and a question arose, in making such survey, as to the location of one of the intermediate corners, which called for a certain course and distance from the corner of another tract of land, which latter corner was not marked on the ground; but A in good faith pointed out to B the place where he was informed it was, which afterwards proved to be very near it; and after a casual search for said corner without finding it, they marked the corner of the division line without reference to it, and continued the survey; and divided the half of the league with reference to such division line so run and marked; and it appeared that by the line so run about fifty acres more than half the league fell to A, and that by a line run with reference to the call for the corner of the neighboring survey, the league would have been about equally divided; it was held that B was concluded by his assent to the division line and the partition with reference thereto; there being no concealment on the part of A, nor any surprise or imposition practiced on B by him.

Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.

Suit by Tacitus Clay and Felix W. Robertson against Asa Hoxey for “an equal undivided two-thirds” of certain land described in the petition, and for partition. The facts were as follows: In 1835 defendant Hoxey purchased from the executor of Luke Lessassier a tract of land purporting to contain one-half of a league, the boundaries of which half league were set forth in the deed to said Hoxey, which was duly registered on the 26th of February, 1838, as follows: Beginning on John P. Cole's west boundary line at the corner of the league; thence S. 74° W. with the north boundary of Luke Lessassier's league, at 1861 varas set a post from which a post oak 24 in. in dia. bears S. 73 1/2° E. 13 varas, and a post oak 18 in. in dia. bears S. 4 1/2° E.;thence S. 31° E. at 4,320 varas set a post in the edge of the prairie, from which a post oak 12 in. in dia. bears N. 46° W. 36 varas; thence S. 45° W. at 600 varas set a post at 15 varas from N. Clay's N. E. boundary line; thence S. 45° E. 2,370 varas set a post 160 varas S. 45° W. from J. P. Cole's S. W. corner, and 15 varas from N. Clay's N. E. boundary line; thence S. 69° E., at 4,260 varas intersected the E. boundary line of the league where set a stone; thence N. with the E. boundary line at 2,488 varas the corner of the league; thence S. 74° W. at 2,099 varas the corner of J. P. Cole's E. boundary line; thence S. 16° E. at 171 varas J. P. Cole's S. E. corner; thence S. 87° W. at 1,871 varas J. P. Cole's W. corner; thence N. 16° W. with J. P. Cole's W. boundary line at 6,448 varas the place of beginning.

On the first Tuesday in February, 1854, Hoxey, Clay and Robertson, purchased at sheriff's sale as the property of John Timberlake, the west half of the said league, described in the levy and sheriff's deed, as bounded on the E. and N. by the half league owned by Asa Hoxey, and on the W. and S. by the headright league of Nestor Clay, including all the headright league of Luke Lessassier, except the half league owned by Asa Hoxey. The field-notes of neither the west half nor of the whole league were stated in the record, a diagram being used, upon which the courses and distances were marked on the division line only.

In the summer of 1854, Hoxey, Clay and Robertson went upon the ground with a surveyor (the witness), and ran the division line between the east and west halves of the league, for the purpose of making partition (between them) of the western half. They commenced at the beginning corner of Hoxey's field-notes as above described; found the first line marked and the corners marked, but found it 100 varas short of the distance called for; found the second line marked and the third corner (counting the beginning corner) marked, at the edge of the timber, but found said second line 300 varas too long, but, as witness said, he respected and was governed by the marked lines and corners. It did not appear by what authority said division line had been previously run and marked. The third line was in the prairie, and they ran the course and distance, which carried them to a point ten varas from the line of the Clay league as called for in the field-notes. (The language of the statement of facts.) The fourth line was entirely in the prairie, and they ran it by the course and distance called for in Hoxey's field-notes. When they came to the end of this line, for the fifth corner, (the dispute was about the proper location of this corner,) some conversation arose about Cole's S. W. corner, this corner being described in the field-notes as a post 160 varas S. 45° W. from J. P. Cole's S. W. corner, and 15 varas from N. Clay's N. E. boundary line. Clay, Robertson and witness (the surveyor) commenced searching for Cole's S. W. corner in a hollow near by. Hoxey informed them that Cole's corner was upon the hill, and they all went to search for it at a place indicated by Hoxey. They found no corner. The place pointed out by Hoxey was very near the point in the diagram designated as Cole's S. W. corner. The question arose whether the fourth line, which they had just run, ought not to stop short of the point to which course and distance had carried them. After some objection on the part of Robertson to the establishment of the corner at the point reached by course and distance, the parties proceeded to complete the survey, and ran the fifth line, which was the last of the division line. This line they found about 300 varas short...