37 Tex. 2 | Tex. | 1873
This cause was before this court in 1869, and after a somewhat lengthy and able argument by counsel, in favor of and against the judgment, and a very careful and thorough investigation by the court, the cause was decided by a majority of the court then sitting. A motion for a rehearing was then prepared, but for some cause was not acted upon by the court, until the next term. The rehearing was asked for the reason, among others, that at the time of the decision, the Supreme Court, by a provision of the then existing Constitution of the State, was composed of five judges, and that this case was decided when but three Avere sitting on the bench, and that the decision was concurred in by but two of the judges, the third dissenting, and therefore it is claimed that the cause was not decided by a constitutional majority of the court. The application for a rehearing was granted, and the cause is again submitted for decision.
On the trial in the lower court, a jury was waived, and the cause submitted on the law and the facts of the case, and therefore the case is now before this court for a final determination. Upon a careful examination of all the facts, aided by the able arguments and briefs of counsel, as well as the former opinion of a majority of this court then sitting, we have been unable to come to the same conclusion in regard to the law of the case as was arrived at on the former hearing. And while we fully indorse and approve the principles of law there enunciated, as correct legal maxims when applied to a proper state of facts, we are still unable to perceive the full force of their application to the case at bar. We are unable to free ourselves from an irresistible conviction that this suit Avas instituted against the Avrong party, which was plainly apparent from the pleadings, and was therefore the proper subject for demurrer.
The facts of the case, so far as they are necessary to a proper understanding of this opinion, are simply these : A. Swift conveyed to appellant one hundred and eighty acres of land, to he taken from a certain portion of a nine hundred and sixty acre tract; hut in his deed, wherein he professes to convey that specific number of acres by actual survey, he includes only a small portion of his own land, and for the balance he runs over on the adjacent land of P. D. Smith. The land thus described and attempted to be conveyed-was actually surveyed, and the boundary lines plainly and distinctly marked out on the ground. In this conveyance there was obviously either fraud or mistake committed by the vendor, since he had no power or authority to convey any portion of the Smith tract. Subsequently Swift sold another one hundred and eighty acres to the appellee, defining the same by specific boundaries definitely marked upon the ground, which were produced also by actual survey, and which made one of the lines of appellant’s tract also one of the lines of appellee’s survey, and including within those distinctly marked boundaries, land belonging to the vendor only. There was no fraud or mistake in the sale to appellee. The vendor intended to sell, and had a right to sell, the identical land described in
How, then, can appellee be affected by the fraud or mistake in appellant’s purchase, and how can appellee be made responsible for that fraud or mistake, practiced upon appellant by a third party % Justice Lindsay in his opinion very properly says : “ Mistake of facts is corrected by the rules and principles of “ equity. Because law and equity are blended in one system, “ there is neither an abrogation nor a modification of the prin- “ ciples of the one system or the other, by reason of the practi- “ cal application of each in the same cause of action. Each “ system has its limits and its boundaries, beyond which neither “ can go without transcending judicial authority, and eneroach- “ ing upon the province of the law-giver. It is said by undis- “ puted authority that ‘ in all cases of mistake in written instru- “ ‘ ments, courts of equity will interfere only between the origi- “ ‘ nal parties, or those claiming under them in privity.’ (Story’s Eq. Jurisprudence, Section 165.) ”
There was no contract between appellant and appellee in regard to the land, and neither was privy to the other’s contract, and, so far as the record informs us, neither may have known of the other’s contract of purchase until the institution of this suit, and it is admitted that both were innocent purchasers, for a valuable consideration, without notice of any equities in favor of the other; and therefore, if either has suffered any wrong or injury by reason of the fraud or mistake of their vendor, he must look to that vendor for redress, and not to an innocent third party. It is true that appellant was an innocent purchaser, the same as appellee, but by the mistake he was deceived, and he must look to the author of that deception for his relief.
Counsel seem to have fallen into the error of supposing that Swift, Blumberg, and Mauer were all parties to both conveyances, and that therefore each should be held responsible for the loss of the other; but we think the record authorizes no such conclusion. It is also claimed that the intention of the parties should form the rule for settling the legal liabilities of
It is claimed that because the deed to appellant calls for a certain designated corner and line of a known survey, that call must govern all others. That might and would be true if no .actual survey had been made, but where the land had been def■initely and particularly surveyed off, and the corners and •courses plainly marked upon the ground, and where the rights of innocent parties have grown out of that survey, and are dependent upon those marked lines and corners, such innocent parties should not be, and in law or equity are not, bound to make good any error or mistake which may have accrued in the first survey, but the purchaser under that first survey must look to his vendor, to make good the title to the land thus erroneously surveyed, or, in case that be impossible, then for his damages, for attempting to convey land to which he had no title. A call for a known corner, and known and designated line, will control other calls in a grant, unless it clearly appear
Affirmed.