Browning's Administratrix v. Atkinson

37 Tex. 633 | Tex. | 1873

Walker, J.

In this case both parties deraign title from a common source. The question is one of boundary, and the purpose of the suit is to settle the western boundary line of the tract of land sold by Stephens to Boberts, the plaintiff’s vendor.

The only question material for our consideration grows out of the charge of the court, and the refusal to charge as asked by the plaintiff’s counsel. Considering the evidence in this case, the first and third charges as asked by plaintiff’s counsel should have been given. It will not do for the court to confine itself to abstract principles and attempt to apply them to every case; for almost every case presents some new feature, to which principles which might well apply and be regarded as sound law in other cases have no application at all. The charges to which we refer, as being refused by the court, are as follows:

“ First. A line clearly defined by calls for course and dis- “ tance will override an uncertain line, based on the doubtful “ identity of natural or artificial objects; the true rule being “ that the most certain and-reliable evidence, all things con- “ sidered, shall have the greatest weight: ” and

“ Third. If you believe from the evidence that in 1834, “ Stephens sold to Roberts one-third of a league of land, and “ defined his western boundary line by calls for course and dis- “ tance only, without actually marking it upon the ground, the “parties to whom Stephens afterwards sold by deeds calling “for Roberts’ western line, would be bound by that line as de- “ fined in Roberts’ deed.”

Where natural objects, monuments; or marked lines, are not called for in the deed, or are of doubtful identity, calls for course and distance may then be resorted to as furnishing the best evidence of which the case is susceptible. A call for a line not marked will not control course and distance. (Houston v. Pillow, 1 Yerger, 488; Martin v. Vance, 3 Head., Tenn., 649; Boarman v. Cox, Peck, Tenn., 364.) This doctrine is perhaps carried farther in Booth v. Upshaw, 26 Texas, 70, than in the Tennessee cases. Judge Roberts, in delivering the opinion of the court, says: “ There is no law fixing the effect of any “ call found in a grant, or giving one more weight than another.” This rule is sufficiently explained in the opinion. In Hubert v. Bartlett, 9 Texas, 103, Judge Wheeler undoubtedly states-the correct rule as “ where the calls lead to conflicting results “ that must be adopted which is most consistent with the intent “apparent on the face of the grant; hence there are many “ cases where course and distance will control natural marks- “ and boundaries.” This rule was followed in McGown v. Hill, 26 Texas, 359, and in Booth v. Strippelman, 26 Texas, 440, and it has been followed in subsequent cases.

It is only where lines are actually marked, and where they can be identified, that they control course and distance. This rule is laid down in several Pennsylvania cases, and in 6 Peters, 508; 4 Wheaton, 444; 4 Cond. R., 501; and 4 McLean, 279.

There is one other question raised in this ease, on the doctrine of estoppels m pads. This question, however, has little to do with the case at bar. We are unable to discover how the action of the Daughtry heirs, in making an amicable partition among themselves, could affect any of the parties to this suit. They did not assume to determine that the yellow or pink line, marked upon the map, was the true western boundary line of their land; they assumed the yellow line for the purpose of partition, all parties being alike affected (as it would seem), whether the yellow or the pink should be found to be the true line. But one essential ingredient in the doctrine of estoppel m pais is that of fraud, which does not enter into this case. The judgment of the District Court must be reversed and the cause remanded.

Reversed and remanded.