Wittbecker v. Wolters

• Decision Date: 10 January 1888
• Citation: Wittbecker v. Wolters, 6 S.W. 788 (Tex. 1888)
• Parties: WITTBECKER v. WOLTERS.
• Court: Texas Supreme Court

6 S.W. 788

WITTBECKER v. WOLTERS.

Supreme Court of Texas.

January 10, 1888.

Appeal from district court, Fayette county; H. TEICHMUELLER, Judge.

This was an action of trespass to try title, brought by J. H. Wittbecker against Robert Wolters. Judgment was rendered for defendant, and the plaintiff appeals.

Moore, Duncan & Meerscheidt, for appellant. Phelps & Lane, for appellee.

GAINES, J.

On the third day of October, 1883, appellant and wife conveyed to appellee, by deed, a tract of land which was described in the conveyance as follows: "All that tract of land situate in Fayette county, state of Texas, adjoining the town of Shulenberg, part of the J. A. Anderson league, beginning at Franz A. Stanzel's N. E. corner; thence S. 195 vrs. to street; thence west to Wittbecker's corner, 332 vrs.; thence N. 195 vrs.; thence E. 332 vrs. to the beginning." The land was sold by the acre, and the field-notes embraced 11 1-16 acres, for which the deed called. At the time of the conveyance, appellant had a fence running north and south across the tract therein described, and 300 varas west of its east boundary line. He then owned also the land lying west of the fence, and also west of the premises described in the field-notes, taking course and distance as the true calls of the survey. The undisputed facts were that appellant agreed to sell to appellee that portion of his land lying east of the fence by the acre, at $90 per acre; and that it was surveyed before the deed was made. In measuring the south boundary line, however, a mistake was made, and it was set down at 332 varas in length, instead of 300 varas, which was shown to be the true distance. The north boundary line was not actually measured, but, as the deed shows, was also set down as being 332 varas long. About two years after the date of the deed, and before the purchase money of the land was fully paid, the mistake was discovered. One Misigas, who was the nephew of appellant, testified that in 1885 he and appellant measured the land, and found the distance from the south-east corner to the fence only 300 varas; and that by direction of appellant he told Wolters to move his fence 32 varas further west; and that he collected the last note due for the purchase money, and deducted the interest on $90, the price of an acre, for the two years before appellee changed the inclosure, and thereby took possession of the strip which originally lay west of the fence. Appellee testified to the same effect; but appellant, in his testimony, said he had no recollection of these transactions; but that, when the mistake was discovered, he offered to make a deduction from the unpaid purchase money of the excess called for by the notes. The court, however, found against him upon this matter, and the evidence amply warrants the conclusion. The appellant brought the suit in the court below, in the form of an action of trespass to try title, claiming two tracts of...