Section B.—This was a suit by the appellee L. B. Harris to recover of the appellants J. A. Groesbeck and others for a breach of warranty of the title to land. Plaintiff alleges that on September 12, 1883, the defendants conveyed to him in fee simple, with general warranty of title, several tracts of land, among *414 which were two tracts situated in Tom Green County, known as surveys Hos. 1 and 3, in the name of the Houston Tap & Brazoria Bail-way Company, for 640 acres each; that he bought and had paid for said land at the rate of $1.50 per acre; that he had acquired no title whatever to the survey Ho. 1, and none to 330 acres of the survey Ho. 3, because the land was included in older surveys not subject to location, and said surveys were not located upon vacant and unappropriated public domain.
Defendants answered by general demurrer, general denial, and also set up special defenses.
Trial was had before the court without a jury, January 24,1889, and judgment was rendered in favor of the plaintiff for the purchase price of the land with interest from the date of the sale.
Defendants have appealed, and have assigned errors on account of which they seek a reversal of the judgment of the court below. We do not deem it necessary to notice all of the numerous assignments of error.
The sale of the land by the appellants to Harris was shown as alleged by him. It was shown also that a suit had been brought by the owners of the Matthew Burnett league against Harris in Tom Green. County for the survey Ho. 1 as in conflict with said Burnett survey, and that judgment had been recovered against Harris therefor. Appellants were not parties to the suit and had no knowledge of its pendency. After judgment against him Harris bought the land included in said survey Ho. 1 from the owners of the Burnett survey.
Appellants’ fifth assignment of error is: “The court erred in finding that the title to the Burnett league was paramount to the defendants’ title to survey Ho. 1, sold by defendants, for the reason that defendants at the time of the entry and file had no notice of the prior appropriation of the land, the defendants’ entry being recorded on March 19,1881, the Burnett field notes being recorded April 9, 1881, the Burnett file being prior in point of time, but covers different land than that embraced in their survey or that covered by defendants’ file.”
McCord and Lindsay, who were the locators of the Burnett league, made their application or file July 23, 1880, which was filed with the surveyor July 26, 1880. The land covered by this file was a rectangle, commencing at the northwest corner of the Bast Line & Bed Biver Bail-way Company survey Ho. 1, running west 6000 varas and south 4000 varas. On Hovember 1,1880, a survey was made for the Burnett league, and the field notes of this survey were filed and recorded in the survey- or’s office April 9,1881. These field notes covered other land than that included in the original file, and include land upon which appellants’ survey Ho. 1 was afterward made. They called for a different beginning corner entirely, and placed the north line of the survey considerably north of the north line of the original file or location of the Bur *415 nett league. On September 10, 1885, the field notes of the survey were corrected, but not so as to change the general position of the tract, and patent issued in accordance therewith Hovember 23, 1885.
Appellants made their file for survey Ho. 1 on March 1, 1881, and the survey and field notes in accordance therewith were made and recorded with the surveyor of the land district March 19, 1881; they were filed in the Land Office March 30, 1881, and patent was issued May 23,1881. The land in controversy was first surveyed for the Burnett locators, but their field notes were not recorded until after it had been previously appropriated by the appellants, who located without notice of the prior survey under the Burnett certificate. The Burnett locators in making their survey ignored the boundaries called for in their file, and included adjoining lands which had been previously appropriated by appellants. When appellants made their file they respected the Burnett file and made their survey so as to conform thereto, and at that time there was nothing of record showing any conflicting file or survey. The surveyor Tarver, plaintiff’s witness, testified that he found no conflict between survey Ho. 1 and the Burnett league when he surveyed the Burnett league according to its file. Although the Burnett survey had already been made when the appellants made their file, there was no evidence of the appropriation in any manner so as to protect it from subsequent location. Const. 1876, art. 14, sec. 2. The original location on file made by the owners of the Matthew Burnett certificate could appropriate only the land covered by it; and the change made by the survey was a new appropriation of other land, which could have force against subsequent locators without notice only from the time of the record of the field notes in the surveyor’s office. Evitts v. Roth,
The correctness of the finding of the court that there was a paramount title to 330 acres of the survey Ho. 3 in the name of the Houston Tap & Brazoria Bailway Company, sold by the appellants to the plaintiff^ is questioned by appellants’ sixth assignment of error.' As • appears from the records of the General Land Office and the testimony of the surveyor Tarver, it is clear that the Houston & Texas Central Bail way Company surveys Hos. 313 and 314, which were older than the survey Ho. 3, conflicted with said survey Ho. 3 to the extent of 330 acres, and constituted a title paramount thereto. We are also of the opinion that the evidence which was received by the court to show the location and appropriation of the land covered by said surveys was admissible. It will be .presumed in the absence of evidence on the
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subject that the surveyor actually surveyed the lines called for. Maddox Bros.
&
Anderson v. Fenner,
It is unnecessary to consider the action of the court in overruling defendants’ demurrer or the admission of evidence to show paramount title under the pleadings. The petition alleges that the title is worthless by reason of conflict with older surveys. This might be good on general demurrer in a suit on breach of warranty of title; but it has been frequently held by our Supreme Court that a plea of failure of consideration by a vendee in defense of an action by the vendor for the purchase money on an executed contract must allege the facts that show a paramount title. Woodward v. Rodgers,
A conflict to the extent of 330 acres of the Houston Tap & Brazoria Railway Company survey Ho. 3 was shown between that survey and the Houston & Texas Central Railway Company surveys Hos. 313 and 314, which were older surveys than Ho. 3, leaving plaintiff with title to only 310 acres of the survey conveyed to him by the defendants. Plaintiff was still in possession of the land in conflict, and there was no proof that the owners of the surveys Hos. 313 and 314 were asserting or had ever asserted any hostile title, or claimed any conflict with the survey Ho. 3, or disturbed plaintiff’s possession.
Appellants contend that the court erred in finding for the plaintiff as to the 330 acres, because the proof showed that he was in possession of the land, had never been evicted, and no adverse title had ever been asserted against him. Actual eviction was not necessary to enable the plaintiff to maintain his' suit. If he could show that there was a superior outstanding title to the land, of which he had no notice at the time of the purchase, he was entitled to recover the purchase money to the extent of the failure in the title. Doyle v. Hord,
In rendering judgment the court below allowed the plaintiff interest on the purchase money from the date of the sale to the date of the judgment. This, of course, was error as to the land in conflict with the Burnett survey. But as to the 330 acres in conflict with the Houston & Texas Central Railway Company surveys Ros. 313 and 314, having been shown to be in possession thereof, Harris would be accountable to the true owner for rents and profits. Such being the case, his measure of damages would be interest for the same period for which he is accountable for mesne profits.
The judgment of the court below should be reversed and the cause remanded, and we so report.
Reversed and remanded.