59 S.W. 530 | Tex. | 1900
The certificate of the Court of Civil Appeals is as follows:
"The action was brought by Coleman County against W.H. Rutherford and W.N. Blackwell. The action was based on a promissory note executed by W.N. Blackwell to Coleman County and to foreclose vendor's lien on the land in controversy. The defendant in error, Coleman County, recovered judgment for the amount sued for, with a foreclosure of the vendor's lien upon the land.
"The Court of Civil Appeals, as a part of this certificate, finds the following facts: The note in question was executed by W.N. Blackwell in favor of Coleman County as a part of the purchase price for land sold by Coleman County to Blackwell, which is alleged by the county to be a part of a survey situated in Coleman County, located for that county, known as the Coleman County survey. Thereafter, Blackwell sold to plaintiff in error, W.H. Rutherford, who assumed the payment of the note in question to Coleman County. Plaintiff in error Rutherford, as a defense to the action, pleaded that there was a failure or want of consideration in part for the note sued upon, by reason of the fact that at the time of the sale by Coleman County to Blackwell and at the chased from Blackwell, was public vacant land, and that Coleman County survey which was conveyed to Blackwell and which was purchased from Blackwell, was public vacant land, and that Coleman County had no title thereto, and that thereafter the plaintiff in error acquired title to the land in controversy by location and patent from the State. We find that the field notes of the Coleman County survey, in attempting to give the boundaries of the same call for the lines of older surveys, which lines, in some instances, can only be established by *220 running course and distance from a few corners which are found upon the ground; and if the calls for the lines of these older surveys shall control, it will embrace and include the land in controversy, and if such is the case, the land would not be vacant and unappropriated public domain at the time it was sold by the county. We also find that there are calls in the field notes of the Coleman County survey for course and distance, and which, if it should prevail, would leave a part of the land in controversy at the time of the sale by the county and the execution of the note, vacant and unappropriated public domain. The calls for course and distance do not extend to the lines of the older surveys, and, therefore, the Coleman County survey would not include all of the land in controversy. Which of the two calls should prevail as above stated was, under the charge of the trial court, left to the determination of a jury. In aiding the jury to determine whether the call for the lines of the older surveys or for course and distance should control, the trial court, over the objections of the plaintiff in error, permitted the surveyor who originally located the Coleman County survey to testify that it was his intention to embrace and include in the Coleman County survey and as a part of the same, all of the land lying between and up to the lines of the older surveys. The verdict of the jury is in accord with this testimony. The ruling of the court in admitting this evidence of the surveyor was duly excepted to and a bill of exceptions preserved, which is brought up in the record in this case, and upon which assignments of error are, in legal form, predicated.
"We certify to the Supreme Court the question whether or not the testimony of the surveyor, as above set out was admissible. The question is whether or not the surveyor who located the land can aid a call in the survey which is in conflict with another call by testifying as to what his intention was at the time he made the survey."
The question seems to have been whether or not the calls for course and distance or those for lines of older surveys should prevail. Upon this question, we are of the opinion that the testimony of the surveyor stating his intention in making the survey was not admissible. In determining the location of the land in such cases, the courts seek to ascertain the true intention of the parties concerned in the survey; but the intention referred to is not that which exists only in the mind of the surveyor. It is defined as that which may "be gathered from the language of the grant," or as "the intention apparent on the face of the grant" (Hubert v. Bartlett,
