Urquhart v. Burleson

• Decision Date: 01 January 1851
• Citation: 6 Tex. 502
• Parties: URQUHART v. BURLESON.
• Court: Texas Supreme Court

6 Tex. 502

URQUHART

v.BURLESON.

Supreme Court of Texas.

1851.

Where the calls of a deed or other instrument are for natural or well-known artificial objects both course and distance, when inconsistent with such calls, must be disregarded. (Note 85.)

Where a survey and patent called for “on Trammel's Trace, including a place known as the old Choctaw village,” and the survey was properly made and the lines distinctly marked, but the surveyor, in making up the field-notes, called for east instead of south, by mistake, which would have excluded all the land actually surveyed, and the mistake was not discovered until after the issue of the patent: Held, That the mistake did not affect the right of the patentee to the land surveyed. (Note 86.)

A deputy of the clerk of the District Court has no authority under the statute to take depositions.

Appeal from Cass. This was an action of trespass to try title brought by the appellee. The petition stated “that ever since the year 1842 the plaintiff has been the legal and rightful owner of a league of land which is described as commencing at a certain point three hundred varas northwest of the old Choctaw village; runs south five thousand varas to a stake; thence east five thousand varas to another stake; thence north five thousand varas to another stake; thence west five thousand varas to the beginning.” The petitioner further alleged “that plaintiff has a patent from the Government of the late Republic of Texas, vesting in him a title in the above premises, in which patent an error exists, inasmuch as it describes the premises as follows: It calls to run from the place of beginning, about three hundred varas northwest of the Choctaw village, east five thousand varas, north five thousand varas, west five thousand varas, south five thousand varas, to the place of beginning, which your petitioner alleges was and is a mistake of the surveyor in making out the field-notes, your petitioner averring and alleging the truth to be that the said tract of land was actually surveyed and marked upon the ground as is first described; that the mistake was not discovered until after the issue of the patent.” A demurrer to the petition was overruled.

It appeared that both the patent and the surveyor's return correctly described the location, “on Trammel's trace, including a place known as the old Chocktaw village;” that the survey was made as alleged in the petition, running south from the starting point, and including the premises described as the old Chocktaw village; that a post was put down at the starting point, and that the lines were distinctly marked around the land so surveyed; that the initials of the grantee's name were marked on trees near the corners; that the old Chocktaw village and Trammel's trace had sufficient notoriety; and that it was well known that the land was Burleson's headright. The patent, however, followed the field-notes of courses and distances of the return of the surveyor, and thereby excluded all the land actually surveyed. There was a verdict and judgment for the plaintiff.

A. Morrill, for appellant.

I. It will be observed that the league of land described in the patent of the appellee and the league claimed by him in this suit are squares; the one lying directly north of the other, and both having the same beginning corner.

It is unnecessary for us to ascertain what title is sufficient under other circumstances to maintain this action. The plaintiff has produced a patent, and does not allege or attempt to show any title except his patent, which patent was granted in 1842 by the Republic of Texas, as he avers.

The common law having been adopted in 1840, this system, the Constitution of the Republic of Texas, and the laws of Congress will necessarily be the tests of the validity or unsoundness of plaintiff's patent as applicable to the league of land in controversy.

The Constitution requires that the citizens “shall have their lines plainly marked.” (General Provisions, section 10, last line in first paragraph.) The fifth paragraph of the same section (page 21) says, that “with a view to the simplification of the land system, and the protection of the people and the Government from litigation and fraud, a General Land Office shall be established, where all the land titles of the Republic shall be registered; and the whole territory of the Republic shall be sectionized in a manner hereafter to be prescribed by law, which shall enable the officers of the Government or any citizen to ascertain with certainty the lands that are vacant and those lands which may be covered with valid titles.”

The land law of 1837 (page 65, section 10) prescribes the duty of a deputy surveyor relative to the chain carriers, markers, and the field-notes. Section 9 requires the county surveyors to receive, examine, and record all field-notes of surveys upon which patents are to be obtained, and the 36th section of the same law provides that the Commissioner of the General Land Office shall record in his office all patents.

From an examination of the foregoing provisions of the Constitution and laws, one great object has been to have the land system so conducted that “any citizen can ascertain with certainty the lands that are vacant and those lands which may be covered with valid titles.” This is effected by requiring “the lines to be plainly marked,” and every survey to be twice recorded--once in the county where the land lies and once in the General Land Office. It would hence follow that simply going round a tract of land with a chain and compass, or with a chain and compass and marker, would not constitute a survey, nor would a description of the natural and artificial objects, without any mention made of the courses and distances from one of these objects to the other, be a legal survey. But the survey contemplated and required by the Constitution and laws is one which has “the lines plainly marked,” so that it may be known on the ground to be a survey, and the lines, courses, and distances so accurately described and recorded in the county surveyor's office “that every citizen may know with certainty upon inspection of the records what land is vacant and what covered with valid titles.” If we apply these observations to the case at bar we find that a surveyor went round one tract of land with a chain and compass and tomahawk, and this was all he did to that tract. Whatever he intended to do it matters not; for although “chancery looks upon everything as done which ought to be done,” the law, and especially the land law, is inflexible. The surveyor's field-notes cannot be applied to this tract. Any citizen who would examine the field-notes as recorded and as made by the surveyor could not even suppose that the field-notes of the patent applied to the land sued for. This record is the constitutional and legal notice of the land surveyed; and if an error exists of such a nature as to entirely mislead the inquirer, it is, to say the least, a misfortune which cannot go to the injury of any one so misled. By the common law, as laid down in 2 Blackstone's Comm., 346, 347, and 2 Thomas's Coke, 604, note A, “A grant made by the king at the suit of the grantee shall be taken most beneficially for the king and against the party. When it appears from the face of the grant that the king is mistaken or deceived, either in matter of fact or matter of law, as in the case of false suggestion, misinformation, or misrecital of former grants, or if the grant be informal, or if he grants an estate contrary to the rules of law in any of these cases, the grant is absolutely void.” According to plaintiff's own showing, if the tract in controversy is granted by the patent, inasmuch as the correct field-notes that apply to this tract were not recorded in the county surveyor's office as well as the General Land Office, this grant has been made “contrary to the rules of law,” and is of course “absolutely void.” In either view of the case, therefore, the plaintiff cannot sustain his action; for if the patent is correct and does not contain “an error in fact,” it does not apply to the land sued for, but a different tract. And if, as plaintiff has alleged in his petition, the patent is erroneous in calling for a different tract of land from what the sovereign power intended to grant, whereby the grantor was “deceived” or “mistaken,” by the false suggestion in the field-notes, it is “absolutely void.”

II. But the plaintiff does not pretend that his patent, uncorrected and unaltered, can avail in this action. This petition states that the patent contains an error; and the “error,” as it is called, is no less than an entirely different tract; for it is at once perceived that this patent differs from no other, except in the name of the grantee and the land granted, and the only thing that is not error in the grant is the parties to the same, the grantor and grantee. The description of the entire premises is alleged as error. And the objects contemplated by the plaintiff's suit are two: first, to amend the patent so that it will apply to the land sued for; and, secondly, to use the patent so amended as evidence of ejectment. It is contended by the defendant in ejectment that this patent cannot be amended or explained away, and that no proof can be given having a tendency to show that a different tract of land should have been described by the calls of the same.

III. But if the defendant in ejectment is mistaken in this position, and the court should decide that the patent can be amended, the defendant still insists that at the institution of this suit, by plaintiff's own showing, he did not have a patent to the land sued for, as he attempts to acquire it by this action. We then return to the first position, and ask the question, Can the plaintiff show that there is an error in all his calls in the patent, and prove what these calls should be? If the plaintiff should allege that his...