Morrill v. Bartlett

• Decision Date: 13 April 1883
• Docket Number: Case No. 4820.
• Citation: 58 Tex. 644
• Court: Texas Supreme Court
• Parties: AMOS MORRILL v. J. M. BARTLETT ET AL.

58 Tex. 644

AMOS MORRILL

v.J. M. BARTLETT ET AL.

Case No. 4820.

Supreme Court of Texas.

Mar. 16, 1883.

Apr. 13, 1883.

APPEAL from Red River. Tried below before the Hon. R. R. Gaines.

This suit was brought April 14, 1882, by Amos Morrill against J. M. Bartlett and David Rainey to cancel and annul an agreement made between plaintiff and Rainey, to have surveyed and established the north line of a sixteen labor survey in the name of Price, and claimed by the plaintiff. He alleged that he knew that Rainey claimed land supposed to conflict with the Price survey, but that he did not know when he made the agreement that Rainey was claiming for his north line the line of a survey called for as the north line of the Price survey. Rainey was really claiming under the survey and patent of a strip of land about three hundred and twelve varas wide, which was covered by the calls of the Price field notes, which called for the Gooch line and corner as common to both surveys, but which calls had not been carried into the patent of the Price survey. The facts in evidence established the claim of plaintiff, that his agreement was made in ignorance of the real nature of Bartlett's claim, and the decree canceled the agreement. Plaintiff also prayed for a decree canceling the patent to the strip of land claimed by defendants. In addition to exceptions to the petition, which were overruled, the defendant Bartlett set up adverse possession of the land in controversy in good faith for one year before suit brought, and that he, and those under whom he claimed, had made permanent and valuable improvements on the same, amounting in all to about $1,600 in value.

The plaintiff read in evidence:

1st. A patent from the state to John Price, dated February 14, 1852, issued on a survey made in 1842, describing the survey as follows, viz.: “Beginning at a mound, the southeast corner of the B. Gooch survey; thence west at three thousand six hundred and ninety-one varas, a stake and mound; thence north at one thousand four hundred and seventy varas, a stake and mound; thence west at three thousand seven hundred and twenty-four varas, a stake,” etc., the rest of the description not being material.

2d. A deed from Price to plaintiff, dated in 1854, in which the land is described as follows: … “Beginning at a mound, the southeast corner of B. Gooch survey; thence west with B. Gooch's boundary three thousand six hundred and ninety-one varas, to his southwest corner, stake and mound; thence north with his west boundary one thousand four hundred and seventy varas, to stake and mound (being corner of B. Gooch also); thence west,” ect., the rest of the description not being material. 3d. Plaintiff then offered the field notes of the John Price survey from the general land office, as follows: “Commencing at a mound the southeast corner of B. Gooch; running thence west with B. Gooch's south boundary three thousand six hundred and ninety-one varas, to his southwest corner, stake and mound; thence north with his west boundary one thousand four hundred and seventy varas, to a stake, and being corner of B. Gooch also; thence west three thousand seven hundred and twenty-four varas, to stake and mound.” etc.

The relation of the surveys will be seen from the plot:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

It was admitted by the parties in open court that the west boundary line of the B. Gooch survey is one thousand seven hundred and eighty-two varas in length.

Plaintiff testified that he purchased the Price survey in 1854; that in 1879 he was informed that Rainey claimed the northern portion of the Price tract, which plaintiff had contracted to one Kelly; that until six months before trial he had no other knowledge of the land than such as he obtained from the county map, which showed the Price survey completely surrounded by other surveys patented, and he understood that Rainey was willing to have the true boundary line of the Price survey established, and did not claim any land included in the Price. He therefore agreed with Rainey to appoint two persons to establish the Price line, and which, when established, should be the true line, believing that the description of the Price survey contained in the patent was correct, and he did not discover his mistake until he saw the field notes in the county surveyor's office.

Young testified that he had been county surveyor of Red River county for many years, and that the map (a plot of which is given) was correct. It showed the survey of Price connecting with the Gooch and Poor surveys until within a few years, when defendants' claim was made, and then the strip in controversy, three hundred and twelve varas wide, was patented to the heirs of James Ward and was plotted on the county map between the Price and I. S. Poor and William Walker surveys.

Rainey admitted that the county map, when defendants' survey was made, showed the north boundary of the Price survey and the south boundary of the Poor survey to be identical; that he, as county surveyor, made the survey under which defendants claimed, at the instance of one Bagby, and that he was interested in the certificate.

In June, 1880, a survey was made under the canceled agreement to establish the line, and the north boundary of the Price fixed as claimed by defendants. The defendant Bartlett testified that he had purchased before the line was fixed under that agreement, but knowing the controversy, did not improve until the line was run under the agreement, and that he afterwards constructed the improvements for which he claimed to be allowed.

There was nothing in the record to show that this defendant ever paid anything for the land or that he ever received a deed therefor. It was shown that the Poor survey was made by the same surveyor who surveyed the Price; that it was made after the Price, and called for the Price north boundary as its south boundary line, and this connection was always shown on the county map until defendants' location. The extreme southwest corner of the Gooch survey was a living corner.

A jury being waived, the court found issues of fact as to the titles and agreement, as follows:

It found that the agreement to have surveyed and established the north boundary line of the Price survey was made by mistake and in ignorance of the character of Rainey's claim, and the decree canceled the same. It found that the John Price survey did not embrace the land in controversy, and that Bartlett, having purchased of Rainey the land sued for, awaited the establishment of the line under the agreement, and made his improvements afterwards, ignorant of the mistake on Morrill's part, which vitiated the agreement. It found his improvements worth $1,975, and that the land without improvements was worth $1,025. On the foregoing facts as found, judgment was entered for defendants.

Taylor & Chambers, for appellant.

Sims & McDonald, for appellee.

I. The ruling of the court below in admitting evidence in regard to improvements was correct, on two grounds, viz.: First, under art. 4813, R. S., suggesting improvements; and second, under the plea of not guilty, for the purpose of showing that the appellant was estopped. Mayer v. Ramsey, 46 Tex., 371.

II. If the third finding of the court be correct, it settles every question in the case. The original survey made for Price in 1842 runs the first north line calling for a “stake and mound, being corner of B. Gooch also.” The patent issued in 1852 leaves out the following portion of the above call: “being corner of B. Gooch also.” The field notes of the original survey make the distance one thousand four hundred and seventy varas, when it is in truth one thousand seven hundred and eighty-two varas, and they embrace two hundred and five acres more land then the patent calls for. The patent describes the Price survey correctly, and, as will be seen by a simple calculation, contains within the fraction of an acre the amount of land called for in the patent, to wit, sixteen labors and six hundred and sixty-six thousand six hundred and sixty-six square varas. Indeed, the field notes of the original survey themselves are not consistent, and show the mistake in calling for B. Gooch's corner. The length of the first south line is correctly given in the original survey. Run the first north line a distance of one thousand seven hundred and eighty-two varas and the northings and southings do not agree. The northings will be three hundred and twelve varas more than the southings. The patent being correct and the original survey incorrect, it is to be presumed that the field notes of the original survey were corrected prior to the issuance of the patent.

III. Should it be held--a scarcely supposable proposition--that an obviously incorrect original survey will control a correct patent, still the judgment of the court is correct on the sixth finding. Love v. Barber, 17 Tex., 312.

WILLIE, CHIEF JUSTICE.

The court below, passing upon the law and the facts of this case without the intervention of a jury, held that the land in controversy was not included in the Price survey, and that Bartlett was entitled to recover the value of his improvements as a possessor in good faith. The question of the validity of the agreement, which the suit was brought to cancel, was decided in favor of appellant, and the agreement was set aside. In the opinion rendered by the supreme court at Tyler, the decision of the district judge was approved so far as it canceled the agreement, but the judgment was affirmed because the appellant did not offer to do equity by tendering Bartlett the value of his improvements; and it was also intimated that the court might not agree with the district judge in holding that the land in controversy was not included in the Price survey. We concur in the former opinion of the court in so far as it holds that the agreement should be set aside, and we are also clearly of the opinion...