Mira Rowe v. Horton

• Decision Date: 24 November 1885
• Docket Number: Case No. 1923
• Citation: 65 Tex. 89
• Parties: MIRA ROWE, EX'X., v. T. M. HORTON ET AL.
• Court: Texas Supreme Court

65 Tex. 89

MIRA ROWE, EX'X.,

v.T. M. HORTON ET AL.

Case No. 1923

Supreme Court of Texas.

Nov. 24, 1885.

APPEAL from Panola. Tried below before the Hon. J. G. Hazlewood.

The opinion states the facts.

Drury Field, R. S. Hightower and J. H. Long, for appellant, cited: 1 vol. Story's Eq. Jur., 6th ed., sec. 1520 a, and note 1; Story's Eq. Jur., 6th ed., p. 184, sec. 160; Story's Eq. Jur., 6th ed., p. 1027, sec. 1521 a, and note 2; McKin v. Williams, 48 Tex., 89;Nichols v. Pilgrim, 20 Tex., 428;Bremond v. McLean, 45 Tex., 18; Ross v. Armstrong, 25 Tex., 354; Custard v. Custard, 25 Tex., 49; W. T. R. R. Co. v. Shirley, 45 Tex., 357;City Bank v. First National Bank, 45 Tex., 203;Alston v. Richardson, 51 Tex., 1.

Booty & Young and C. B. Kilgore, cited: Smith v. Fly, 24 Tex., 345;Kulhman v. Baker, 50 Tex., 630;Munson v. Hollowell, 26 Tex., 475;Connolly v. Hammond, 51 Tex., 635; 2 Pom. Eq. Jur., 856; 2 Story's Eq. Jur., sec. 1520.

WILLIE, CHIEF JUSTICE.

The original petition in this cause alleged that the appellant and T. M. Horton, on the 8th of February, 1871, partitioned between themselves a league of land, and agreed that in the partition Horton should receive 400 acres, and the appellant the remainder. The metes and bounds of the 400 acres are set forth in the petition, and according to its allegations really embrace an area of 676 acres. As a means of carrying out the partition, Horton executed to appellant a deed of relinquishment of all the balance of the land, except the tract described by the said metes and bounds, and this he reserved to himself. The deed was executed and recorded in July, 1872. It was the intention of the parties to partition the land so as to give to Horton only 400 acres, but in making the survey of the 400 acres the surveyor committed an error which was unintentionally carried into the deed, and by reason of this error the appellant was deprived of 276 acres of land, the excess of the area contained in the field notes over and above the 400 acres intended to be allowed to Horton.

The mistake in carrying the field notes of the surveyor into the deed is alleged to have been mutual, and that it was not discovered by the appellant until 1882. So soon as discovered she applied to Horton to have it corrected, which he refused to do, and set up claim to the whole 676 acres. Appellant attached to her petition a set of field notes and a plat made by N. C. Williams, county surveyor of Panola county, in 1883, which she alleges is a correct representation and description of the 400 acres of land which she agreed to convey in partition to Horton, and which it was intended should be described in the said deed.

She prayed, among other things, that the error committed in the field notes might be corrected so as to conform to the original agreement as to the partition of the land.

A general demurrer to this petition was sustained because of the inconsistency in its averments in first alleging that by agreement the very land contained in the field notes was to be conveyed to Horton, and subsequently denying that such was the agreement, and seeking to set it aside. A special demurrer, setting up the statute of limitations, and that the plaintiff's demand was stale, was also sustained.

The plaintiff then filed a trial amendment, alleging that the partition agreed on between herself and Horton was in settlement of a suit between them about a league of land; and by this settlement Horton was to have 400 acres of the league out of its north side, to be surveyed as near as possible in the shape of a square; the title to the balance of the league to be vested in her. That the field notes in Horton's deed embraced only 400 acres, whilst the lines as actually run, included 676 acres; and that the error in the survey could only have been ascertained by an actual resurvey and measurement of the land. She alleged a mutual ignorance of herself and Horton as to the fact that the lines upon the ground did not correspond with those in the field notes. As an excuse for not presenting the action at an earlier day, she stated that the land lay in the woods and partly in the Sabine bottom and remote from her, and that she had no reason to believe that there was any error in the survey until the year 1882. She prayed that Horton's deed be so corrected as to confine his right to 400 acres of land as shown by the survey of Williams, and for other relief not necessary to mention. A plea of ten years limitation and stale demand was sustained to the petition as amended, and the plaintiff declining further to amend, the cause was dismissed, and an appeal from that judgment taken by the plaintiff to this court.

It is clear that the ruling upon the original petition was correct. The plaintiff had alleged...