Welder v. Carroll

• Citation: 29 Tex. 317
• Parties: JOHN WELDER ET AL. v. RUFUS CARROLL.
• Decision Date: 31 January 1867
• Court: Supreme Court of Texas

29 Tex. 317

JOHN WELDER ET AL.

v.RUFUS CARROLL.

Supreme Court of Texas.

January, 1867.

The entire description in a patent must be taken, and the identity of land ascertained by a reasonable construction of the language used. If there be a repugnant call, which by the other calls in the patent clearly appears to have been made through mistake, that does not make void the patent. But if the land granted be so inaccurately described as to render the identity wholly uncertain, it is admitted that the grant is void. Pas. Dig. art. 5294, note 1144.

Where a grant called for a map, as part of the description, the map is admissible in evidence to explain and sustain the grant.

Where the map referred to is not attached to the testimonio, and is not an archive in the general land office, where it ought to be, in the absence of any objection to the failure to allege the loss or destruction of the original maps, or to account for their non-production, the grantee has the right to resort to secondary evidence of the contents of such maps. Pas. Dig. arts. 70, 71, notes 250, 251.

Where the original map referred to in the grant was traced to the office of the district surveyor, a compared copy, proved by the surveyor, ought to have been submitted to the jury, and it should have been left to them to determine whether it was the same referred to in the grant or not, and if it be the same, it may be consulted to identify the land.

Such map, not being found in the public office where it belonged, could not be proved by certificate, under the 89th or 91st section of the act to regulate proceedings in the district court. Pas. Dig. arts. 3715, 3717, notes 839, 841.

But where the map had remained in such district surveyor's office for a term of several years, and had been used by him as an archive, the sworn copy should have been admitted, without the necessity of producing the original.

If the boundaries of a survey can be ascertained and established by a re-survey, following the calls in the title and map forming a part of it, and the ancient land-marks made for its identity by the original surveyor; or if its locality can be proved by witnesses, who, from their personal knowledge, or information derived from general reputation, or from its having been pointed out to them by the surveyor by whom it was run, or by others who were present at the time or cognizant of the fact, it will fix or mark its position, although there may be a discrepancy between its position thus ascertained and that given by the calls, or the plot on the grant. Pas. Dig. art. 5294, note 1144.

Where two surveys were made at the same time, one cannot claim priority to the other merely because the final title is anterior in date, nor can the boundary of one be enlarged because the other has been declared invalid. (See the opinion for a demonstration of this principle.)

Where the calls of two surveys together exceed the quantity intended to be granted, the land is nevertheless appropriated; and, if the dividing line between them cannot be ascertained, they must hold in proportion to the respective quantities to which they are entitled; and, if there be not enough to fill both surveys, they must suffer diminution in the like proportion.

Hearsay evidence is admissible to prove ancient boundaries, but it should be closely scrutinized, and not admitted if it be vague and uncertain. 23 Tex. 649.

A witness who is liable to one of the parties, as a trespasser upon the land, is competent, because the judgment could not be used for or against him.

APPEAL from Victoria. The case was tried before Hon. FIELDING JONES, one of the district judges.

The record had one hundred and twenty-five pages, which include six maps, embracing the locus in quo and the surrounding country.

The argument of Judge Robert Hughes for the appellants was, perhaps, the last effort of the well-stored legal mind of a man who had given his whole life to the study of the law, and the last twenty years exclusively to the practice in cases involving Texas land titles. But the reporter finds it impossible to insert it, in consequence of its great length and the illegible manuscript written on both sides. The reporter is aware that without the maps, and particularly the map “D,” the description must be imperfect; but our law makes no provision for engraving maps. The map “D” is nearly triangular in shape, and is bounded on two sides by the streams called for.

This was an action of trespass to try title, brought by the appellee against the appellant, on the 24th September, 1853, in the district court of San Patricio county, for the recovery of two tracts of land, of three hundred and twenty acres each, situated on the south side of the river Aransas, in said county. The venue was subsequently changed to Victoria county, and, on the 20th August, 1859, there were a trial, verdict, and judgment for the plaintiff.

The plaintiff claimed the land in controversy by virtue of two locations under an unconditional headright certificate for six hundred and forty acres, issued to John Rosell, on the 5th June, 1843, by the board of land commissioners of Victoria county, which the defendant admitted to be genuine.

The defendants claimed by virtue of a grant to Felipe Roque Portillo, issued by the commissioner of Power & Hewitson's colony, on the 23d October, 1834, for one league of land.

The petition of the commissioner, which precedes the grant, is dated September 11, 1834, and asks for land, “Sobre el arroyo del Aransas por aquel lado colindante con el empresario Power, por la parte de abajo.”

This is translated in the record:

“On the creek of Aransas, extending on the other side with the empresario Power, by the lower part.”

The translation should be:

“Upon the Aransas creek, on the other side, contiguous with the empresario Power, by the lower part.”

The grant itself contains no designation or description of the land conveyed, except the following:

“I adjudge to him, in form, the league of pasture land which he has asked, a labor inclusive, which is composed of the twenty-five million of Mexican varas which the law designates, and is contained within the surveys which one of the appointed surveyors made upon the Aransas creek, on the other side or right margin, in the figure indicated by the letters A, B, C, D, E, comprehensive of seven and a half leagues, and whose particular map, authorized by me, shall be annexed to this title for the security of the party interested.”

The map referred to was not annexed, and the plaintiff objected to the grant, because, first, it contained no sufficient description of the land conveyed; second, the map referred to was not annexed.

These objections were overruled by the court, and the plaintiff excepted.

To designate the land conveyed, and sustain their grant, the defendants then introduced a grant to Power & Hewitson for four and three-quarter leagues, dated November 22, 1834. The petition which precedes this grant, forming part of the testimonio, after reciting that the petitioners, Power & Hewitson, had, on the 24th December, 1829, obtained by purchase two concessions of eleven leagues each, of which they had only taken possession of seventeen and a quarter leagues, asks that, with respect to the balance, there may be surveyed and adjudicated to them “four and three-fourths leagues; two and a half below the lands surveyed for Don Miguel Aldrete and Mr. Galvan, on the west with the lake of Aransas, on the south with that creek, and north by the creek of the Mission, the other two and a quarter leagues between the Chiltipin, Aransas and Papilote, towards the west.”

The grant itself is of “the four and three-fourth leagues of pasture land which they asked, which, according to the surveys made by one of the appointed surveyors, is divided into two parts: the first composed of the two and a half leagues situated upon the lakes, which are formed at the termination of the creek called Aransas, and whose irregular figure appears from the particular map which shall be annexed, being contiguous, on the northwest, to the lakes which are formed thereabouts; on the north, a line of four thousand eight hundred and forty-seven varas, with lands of Galvan; on the southwest, with a line of ten thousand eight hundred and ten varas, with the citizen Aldrete, concluding, towards the south, with an enclosure or semi-circle upon the lakes which exist thereabouts. The second portion consists of two and one-quarter leagues of marshy pasture land: one, connected with the quarter, has a front upon the Aransas of three thousand one hundred and twenty-five varas, and of depth, on the lower side, nine thousand eight hundred varas, and, on the upper, nine thousand eight hundred and fifty; bounding on the west with citizen Loupy; on the south with the same empresarios; on the east, ______ Felipe Portillo; and on the north with said creek; and the other remaining league has a front upon the Chiltipin creek of one thousand Mexican varas, and ______ from this creek where is formed ______ with a line to the north, with a line of five thousand eight hundred and eighty varas; the square is closed with two others of five thousand varas, bounding, on the north, with said citizen Loupy; on the west, with Daniel O'Boyle; on the south, with citizen Pollan; and on the east, with Felipe Roque Portillo.”

[The dashes indicate omissions, by the copyist, of words in the original.]

The defendant then introduced a grant to Calisto, Juan, Francisco and Encarnation Portillo, sons of Felipe Roque Portillo, for one league each, dated October 23, 1834. This also called for a particular map, which was not annexed, and the field-notes are identical with those of the grant to Felipe Roque Portillo, with the exception that the petition prefixed to this grant does not ask for land adjoining the empresario Power.

The defendant next offered a grant to Felipe and Jose Maria Portillo, for one-half a league each,...