Steward v. Coleman County

• Decision Date: 01 May 1902
• Citation: 67 S.W. 1016
• Parties: STEWARD et al. v. COLEMAN COUNTY.
• Court: Texas Supreme Court

67 S.W. 1016

STEWARD et al. v.COLEMAN COUNTY.

Supreme Court of Texas.

May 1, 1902.

Error to court of civil appeals of Third supreme judicial district.

Action by Coleman county against J. X. Steward and others on a note and to foreclose a vendor's lien.A judgment for defendants was reversed by the court of civil appeals, and they bring error.Affirmed.

Jenkins & McCartney, T. J. White, and Randolph & Randolph, for plaintiffs in error.D. O. Cameron, Woodward & Baker, and Sims & Snodgrass, for defendant in error.

WILLIAMS, J.

This cause was begun by the county against W. H. Hubert, J. X. Steward, and others to recover against Hubert upon a note given to the county by him for a parcel of land claimed to be a part of one of its leagues of school land, and against all of the defendants for a foreclosure of its vendor's lien upon such land.The defendants named are the only ones who made defenses.The defense upon which the case was decided in the district court and court of civil appeals and depends here was that of failure of consideration, based upon the allegation that the land for which the note was given was not, as it was supposed to be by both parties at the time of the sale, included within the plaintiff's league, but was vacant, and had been subsequently located by and patented to a third person, who had conveyed it to Steward.Upon the trial in the district court the jury found in favor of this defense, and judgment was rendered against plaintiff.Upon appeal the court of civil appeals reversed this judgment, and rendered judgment for plaintiff.This writ of error was granted upon the assignment that the court of civil appeals erred in rendering final judgment, instead of remanding the cause.The issue of fact in both courts below was as to the true location of the southern boundary of survey No. 91, Coleman county school lands; the line contended for by plaintiff including, and that contended for by defendants excluding, the tract sold to Hubert.

A motion has been made by the county to dismiss this writ of error upon the ground that this court is without jurisdiction, because the case is one of boundary.The cases over which this court is denied jurisdiction by the provision of the statute on which the motion is based are "all cases of boundary."A case may involve a question of boundary without being a "case" of boundary as that phrase has been construed by the decisions of this court.Cox v. Finks, 91 Tex. 320, 43 S. W. 1;Schley v. Blum, 85 Tex. 551, 22 S. W. 667;Wright v. Bell, 94 Tex. 577, 63 S. W. 623.In the case first cited it is said: "It was, in effect, held in Schley v. Blum that the right of the case must depend upon a question of boundary, and we think we may here add to that holding by saying that the right of the whole case must so depend.* * * It seems to us that the decision of the question whether a suit is or is not one of boundary merely depends upon the answer to the further question: If there had been no question of boundary, would there have been a case?If so, it is not a boundary case; if not, it is a case of boundary, pure and simple."The further discussion in that opinion clearly develops the proposition that a case of boundary may involve other questions besides the one as to the location of the contested line, and that the presence of such questions does not give this court jurisdiction; and that cases which are not wholly cases of boundary may involve, as necessary to their decision, the location of boundaries; and this does not thwart the jurisdiction of this court to determine every question of law arising in them.This distinction arises from the fact that the jurisdiction is withheld in cases of boundary, and is not denied over questions of boundary arising in cases of a different kind.The present case is one for the recovery of a debt and the foreclosure of a lien upon land,—one to which the jurisdiction of this court, under other provisions of the statute, unquestionably extends.The fact that, in order to determine its merits, a boundary must be located, does not change its character, and make it wholly a case of boundary.The motion to dismiss is overruled.

As before stated, the writ of error was granted because it was thought there was error in the holding of the court of civil appeals that, upon the uncontradicted facts, the land in question was included in the plaintiff's survey, and in the rendition of judgment for plaintiff.We have concluded that the judgment was justified by the provisions of the statute(article 4269, Rev. St.), which escaped our attention...