50 Tex. 371 | Tex. | 1878
Conceding that the time of filing appellants’ certificate and field-notes in the general land office, and that they had not been subsequently withdrawn therefrom, are not facts which may be certified by the commissioner, (Paschal’s Dig., art. 3806,) we think there was certainly no such manifestation of “ weakness or want of skill” on the part of counsel for appellants in relying on the certificate of the commissioner to establish this point in their case, as should have precluded them from a continuance on the ground of surprise on the ruling of the court excluding the certificate offered by them to prove these facts, or warranting the refusal of a new trial, when it must have been evident that the failure of appellants to prove the return of the certificate and field-notes to the general land office in the time prescribed by law, was, of itself, under the charge given the jury, fatal to their case, however meritorious the cause of action may be, although it cannot be doubted, in view of the certificate of the commissioner, that these essential facts can be easily proved on another trial. That a new trial may be granted on the ground of surprise, even when such surprise is occasioned by a correct ruling of the court, and although negligence may he properly imputable to his attorney, (if the party asking it has a meritorious cause of action and gross injustice will otherwise be done him,) is well settled. (1 Grah. & Watt, on New Trials, 187; 2 Grah. & Watt., 675.)
A new trial should also have been granted to enable appellants to avail themselves of the newly-discovered evidence of the witness G. W. Helms. Although Helms was examined as a witness by appellants, it appears from his as well as Buford’s affidavit that he refused, previous to the trial, to inform
The court correctly instructed the j ury that “ the identity and locality of land are usually determined by the calls in the grant.” That “ often one grant calls for another survey, and where this is done the identity and true locality of the survey called for often become a material question, and its locality should be taken into consideration; and it often affords material aid in determining the locality of the land in dispute.” But certainly it is much too strict a rule to hold that, where another survey is called for, the identity of the survey thus called for must be shown by its field-notes, of record in the office of the county surveyor, to conform in every particular with the calls in the survey the identity of which is in question. This would be to suppose that surveyors, in writing out their field-notes or reports of surveys, are much more careful and accurate than in the very nature of things could be expected of them, and certainly beyond what every day’s experience shows us they are. In looking for the’ survey called for, we need not, in all instances, expect to find one corresponding in every particular with the calls; or that references to it, generally
Appellants’ survey calls to begin “ at a stake in prairie the southeast corner of a survey in the name of James Bussell, runs south through a prairie thirteen hundred and forty-three varas, a stake,” &c. Bow, conceding that the records of the county surveyor show no such survey as is here called for “in the name of James Bussell,” and that appellants’ survey cannot be otherwise ascertained, or identified, must they therefore lose their land? To say that they must, would bring in question many titles on which the owners now rest in security, especially in those sections of the State where lands are to a great extent located and identified by their calls for other and connecting surveys. Certainly no one who has given the least practical attention to our land system, or to the locating and surveying of land under it, but- must know that while most surveyors perhaps enter surveys in the name of the grantee of the certificate upon which the survey is made, yet a contrary practice is by no means infrequent, and often the field-notes show the survey to be made not for or in the name of the grantee of the certificate, but in that of the party claiming and presenting it to the surveyor for location. Although the survey is in the name of the grantee of the certificate, when it is called for in another survey it is quite as often as otherwise called for and designated as the surveyof
Other important questions are presented by the record, but as they have not been fully discussed by appellants’ counsel, for whom alone an appearance has been made in this court, and as they may not recur on another trial, we refrain from comment upon them.
The judgment is reversed and the cause remanded to the District Court, that another trial of it may be there had.
Béversed and remanded.