Hermann v. Thomas

.Tex.) THOMAS v. HERMANN Loring Anderson, W. v. 95 Minn. N. & Tread- Hunter

erence to business of way 723, general well, a note under consideration contain- in a latter testified ing following stipulation: advertising a failure that scheme was cent, per “A if increasing six allowed was con- discount their so far as cerned. business paid on or October 1903.” before recognized That court the doctrine that Harrison, appellant, that testified' The promise pay theré is a a stated sum purchased note, the ma- when turity before he money, plus or minus an indefinite amount or installment, at- it was not of the first discount, nonnegoüable, the instrument is order, any and the first or tached to contract holding, however, that: any he information time that received instrument, whereby promises “An maker questioned was effect that note was pay payee, order, bearer, or to nite and a defi- through attorneys; ac- he not his note, promissory discount, a amount is * * * Lyon- ig quainted Taylor Company negotiable.” with the methods used pianos. prize disposing of cited, quoted from, That court the case manager financial secre- assistant Savings Miller, Ohio, of Mansfield Bank v. tary company sale of of the testified to the us, Cir. Ct. ing not R. accessible to announc- appellant, along with other the note doctrine, applicable note, the same to a notes, $1,000. for the sum containing substantially pro- appellant assigns the trial [1-4] The Supreme vision. The Court of Minnesota refusing requested his instruc court erred tion for further said: assign peremptory verdict, contingency is “While there ma- before the turity of note as whether maker will There ment think be sustained. pay maturity before, at there is no contract; any the for the not alteration of this was defendants tingency uncertainty as to the amount authorized, order paid discharge maturity, full at note Company Lyon-Taylor piano, before, to detach or at time if the maker elects to pay before.” accepted order note when appellant negotiable, If the note is is company, negotiable; The note is done. undisputed, purchaser an same, innocent because the whole amount also judg- and we reverse and render installments, such payable in does note is ment as the trial court should have render- negotiability. destroy The install not its ed, note, principal, the full amount of the payable time for at definite ments appellant and interest in favor of amount; feature further definite against appellees. nonpay maturing all the installments Reversed and rendered. installment, more than 30 ment days holder, maturity, permitting after option, of said install mature all at his negotia destroy ments, bility. likewise does (No. 261.) HERMANN THOMAS et al. (Court Appeals of Civil of Texas. El Paso. payable by installments, the whole note “A April 9, Rehearing, 1914. On pay- failure is to become which ment of one is due 25, 1914.) June installment, and so negotiable;. note, be- of which whole amount (§ 244*) 1. VENDOR AND PURCHASER —BONA payment of one due default come stallment Fide Purchaser —Evidence. E. Enc. of of interest.” A. Law & trespass try Evidence held suffi- p. (2d Ed.) vol. conveyance cient to authorize that a grantor pred- from a common to defendant’s ne- doubt as entertainable pursuance ecessors was of a sale or contract gotiability instrument, results from grantor prior conveyance of this such to his plaintiff’s plaintiff’s grantors, grantor, provision: following cent, “A discount six knowledge purchased, when or contract of sale. such sale per given if full amount of will be paid maturity instrument this first at cases, other [Ed. Note.—For see Vendor and which, however, installment,” def- Dig. 609-611; Dig. Purchaser, Cent. §§ Dec. payable 244.*] time, § re- inite a definite amount op- ducing Rehearing.. the note a certain amount On payable tion is A note “on or be- Description exercised. (§ 111*) 2. Deeds —Indefinite Larger negotiable. Tract. mak- —Selection fore” certain date is grantee of a of 100 acres of option to er of such an instrument has the larger tract, undertaking out of to be selected maturity pay the stated time before convey particular part to established of a 100-acre payee-or same, previous- holder been but the of said selection had ly made. payment cannot, course, note demand be- cases, Deeds, [Ed. Note.—For see Cent. day. Kenney, National Bank v. fore Tex. §| 309-315, 334, Dig. Dig. 111.*] Dec. § unnecessary 293, 83 368. It is — (§ 3*) Description 3. Boundaries Rela- — holding cite the Texas authorities stipulation Importance Conflicting tive Ele- cent, attorney’s per fees ments. adjacent upon principal the unmarked destroy, When does not and interest survey calls marked line and there where, for, is called the other promis- state, negotiability in this sory position of un- such note; amount made certain. The accuracy, be ascertained with can Minnesota, Supreme to how Court case of is no evidence as Dig. Key-No. Dig. Rep’r topic & Am. Series Indexes in Dec. & other cases see same and section NUMBER *For REPORTER 168 SOUTHWESTERN why actually league made, The Jones’ was is no reason is in form there one-third a dignity survey line should not fronting parallelogram, river, San on the Jacinth object prevail course artificial over boundary, which forms its northern adjoin- distance; the line of an but a call for and is ing survey distance, with reasonable prevail described as for follows: call over a itself can be “Beginning unless such line sycamore at a on the south bank certainty, and, if it cannot pointing river, B., of the said trees stake and 1,444 four marked J. located, disregarded,'and ter- it should blazed; 5,895 thence south varas a to distance, according the call for minus fixed to prairie; mound line so that where the true location of a blackjack varas to X marked in a black survey league uncertain, the north jack grove pointing blazed; trees thence north conveyance of line northeastern corner of 5,695 magnolia varas to a J. B. on the part be found tance, termining uncertain, equally could were thereof bank of the San Jacinto river at the mouth of running by dis- the course and slough emptying river, pointing into said uncertainty that, in de- was such by blazing; marked its trees said river the call location of beginning.” meanders to the northeast corner will be for the north line and disregarded, the grant by patented February 10, reconstructed 1846. for distance. course and August 28,1846, conveyed On Jones to Boundaries, cases, Note.—For other see [Ed. Dunman 492 grant. the west one-third of his Dig. Dig. 3-41; 3.*] Dec. §§ § Cent. part controversy No of this land is in —41*) Tbespass Try (§ 4. By 6, to Title Selec August 1853, herein. deed dated Jones prom Larger Consent—Sup- tion eiciency Tract — conveyed to Sarah Goodman all of his said of Evidence. league being unsold, one-third then trespass try held Evidence title part acquiescence sufficient to show a on the more or less. by prior grantee subsequent selection By May 18, 1858, deed dated Sarah Good- prior grantee, .based on a whose deed was husband, Goodman, conveyed man and T. J. larger tract, more than 100 acres out of a adjoining tract. acres 279% Trespass cases, previously conveyed [Ed. Note.—For other see to 492-acre tract to Dun- Dig. Try Title, 41.*] Dig. 62, 63; § Cent. §§ Dee. began man. This .the Jones the southeast corner of the 492-acre and from this Appeal Court, from District Harris Coun- varas; ran Judge. ty; Ashe, E. Chas. light varas to wood knot try Trespass George title H. Her- V; witness trees marked varas; thence south against mann William W. Thomas and oth- beginning. thence west 300 varas to Judgment plaintiff part, for and for ers. $602, In consideration of deed of plaintiff part, appeals. defendants in Re- date, May 18, 1858, same and husband Sarah Goodman rehearing. versed and remanded on conveyed to Adelard See, also, 574, 141 S. W. 143 S. W. 195. following described land: Lockett, Houston, appellant. J. W. “602 acres of land out of third of a Brashear, Houston, appellees. league originally Jones, granted 5. H. Brown John league being the of a remainder said third prong unsold at this time situated on the being HIGGINS, is an the of the tract J. This action party part which said of the second try trespass ordinary form particular resides, for now identification against brought Thomas and Hermann hereby field reference the notes of parcel survey.” others part recover a certain league coun- of a Harris of one-third The two deeds last mentioned were wit- Jones; granted ty, Brown the land to John Woodyard. nessed J. B. plaintiff’s petition sued for described leaving surviving died, wife as follows: children, acquired and Hermann from them “Beginning corner of said the northeast an undivided seven-ninths 602-acre tract. interest said league, at the a stake Brown John mouth of 1/3 facing X; lake, slough, mkd. trees By general warranty along April line of John'Brown deed dated league stake; Jones west 675.1 old 1860, yard conveyed 1/3 Sarah Goodman to J. Wood- vrs. to stake the east following prem- and Eliza - sapling pine tract, a mkd. Humble cor, ises: pine stump bears stands distant, sapling bears E. 10 ft. and a 10° “100 acres land out of John B. Jones distant; along 10 ft. thence north N. 25° W. an old fork the west of the San Jacinto- headright river taken out of said tract wherever said the second cor, to N. E. of old blazed 701 vrs. county, said hundred acres to be purchase, now N. E. cor. of 300-acre parties Humble George a Bissonet H. Hermann or part may select, being ravine premises conveyed stake center to said Jones, same by Sarah Goodman cypress Xmkd. bears N. 15° W. tree August John B. deed from dated dist.; thence west a blazed line page ft. R, 1853, Book recorded 488.” facing in ravine tree vrs. to stake mkd. warranty By general deed dated November X, E. corner of Matthews 24-acre the S. Hogan (formerly of the N. W. cor. of John Brown tract out E. J. Eliza Mor- league; along thence north the east Jones 1/3 conveyed gan) Mrs. E. J. Humble land- boundary 193 vrs. to N. E. line of same described as follows: cor., bank in the south San Ja- a stake river; with its undivided hundred acres thence down “The half of one of' cinto meanders beginning.” originally granted land out of to John topic Dig. Key-No. Rep’r Dig. see same and section &Am. *For other cases NUMBER Dec. Series & Indexes. 103» Tex.) v. THOMAS HERMANN pur- separate paper, to be written on sheet of B. Jones. chased Mrs. one hundred Said correspond numbering Hogan B. Wood- with the and J. same to E. J. questions causing you, yard April them deed submitted from Mrs. Sarah Goodman your collectively signed by Coun- foreman. 11th, Harris and recorded you may W, page ty al- “In order that understand law 655. Said Record Book taking governing questions parties privilege said be answered of the various to the lows one hundred acres may by you, in Said the court connection with each issue select.’ ‘where presents you post stump pertinent begins thereto. a oak to the law acres at one hundred ground growing living a “There has been introduced in evidence near the branches with mulberry 6 from T. to Ade- in. dia. mkd. deed J. and Sarah Goodman forked which a from X mkd. ing pine May 18, 1S58, through Bourgeois, deg. 6 in. dia. lard dated & a 65 E. N. vs. N. 10% deg. plaintiff 10 all stand- which There is also in X vs. claims. 74 bears river; to J. San evidence a deed from Sarah Goodman bank Jacinto on of Morgan April Woodyard north B. and Eliza vrs. stake 280 to a on Woodyard survey; 11, 1860, east and a deed from said to thence Dunman’s line of 220 vs. with 29, 1868, June a deed from line to a stake Thornton dated and Dunman’s north pine E. brs. Thornton and wife Mrs. J. Humble dated dia. mkd. V N. to a 16 in. from which 55 1870, 15, deg. vs.; from Mrs. south 437 vs. with November and another deed E. thence 4% Hogan Morgan) (formerly stake; E. to Mrs. E. J. a J. Dunman’s east line to 1869, through cane, 4, which vines Humble dated November thicket of 571 vs. to a corner in a briars; a The defendants to corner deeds defendants claim. al- thence north 651 vs. presumption a or a bear- so invoke the of deed con- bank of Jacinto San on trees, ing dia., of 10 from T. and Sarah Goodman to in. sale J. 20 in. a white oak a birch Woodyard Morgan prior facing T, dia., B. to dia., J. May to 8 all mkd. ash in. an guide 1858, and, corner; up this issue as all thence the Jacinto with its San you answering question questions beginning.” m or meanders to you you, are be hereinafter asked of By general warranty June deed dated instances, structed that if facts some conveyed J. John and B. permissi- sufficient, it is circumstances are (cid:127) jury supply missing Mary premises ble omission or E. Thornton as: described by presuming link in deed duced in evidence had been executed. of that some a chain title land out half 100 of “The undivided of acres or of other than those intro- contract sale headright B. Jones on west of fork of the San Jacinto said wherever said select; John county, river in said charged that, “You further in order to are 100 to be out of the said tract acres taken presume or authorize the find exist- part may parties of the second produced, of a deed or contract of not ence sale being part premises said' con- it of in evidence must facts and circumstances the be veyed to Goodman deed from Jno. B. Sarah consistent with execution such a deed of August 6th, 1853.” Jones dated sale, presumption and that the of or contract of such all of the facts are such deed general warranty By November deed dated or contract sale cannot arise deed of where conveyed circumstances evidence 15, 1870, Mrs. Thorntons E. perfectly with fact that no consistent J. Humble: sale or contract of was ever executed. land; of half “50 it undivided acres that, “You further under are instructed B. 100 land of the J. Jones of acres of out you case, facts and circumstances in this not authorized to are headright of San the west fork Jacinto on presume deed or contract county, Texas, of field notes state will which benefit to de- of sale 100 of land out of the acres except you fendants, unless and believe from the headright of the J. situ- north ated er some 'or of sale evidence that deed contract not prong on of the San Jacinto riv- produced T. J. Sarah was made Good- city N. E. from the of Hous- about 18 miles Morgan and Eliza man to J. B. prior beginning ton, at N. W. corner of said 100 May, day 18th and that post stump living oak branches knowledge or notice Adelard mulberry growing in. diameter 10% E. 220 varas to 16 inches in diameter it from which a forked 6 on purchased May, he 18th of thereof when deg. X marked bears E. 1858. vs.; south 230 vs. to thence you “If a fair consideration of believe from from stake facts and the case— all of the circumstances marked V bears north 55 including any you circumstances which facts or deg. vs., presumption, repel as well as those believe Joseph Dunmans; thence south 437 presumption may you be in favor of the believe stake; vrs. with Dunmans east line to a at some —that T. J. Sarah Goodman time cane, to a corner in a vs. thicket day May, 1858, prior to the 18th made briars; vs. to vines and conveyance contract to J. B. or of sale deed tree, river, bearing birch inches Jacinto Woodyard land and Eliza D„ D, an 8 inches in white oak in inches San ash grantees, to be selected T; up De., all are consistent facts and circumstances river with all meanders conveyance a deed of of such or the execution contract of beginning.” place of you sale, if from the evidence probable reasonably that is more such believe it acquired have of Mrs. Defendants of sale was made than or contract a deed conveyed land Humble to the to her their you made, liberty to, then are your it not deeds. duty to, will, event, in that find it presumption of such a only county favor deed or in contract evidence was record in deeds of Harris you But believe of sale. affecting from Sarah Goodman the title probable is more controversy are mentioned above. three contract of sale such deed or your duty date, prior before a The cause was tried sub- will be to find to said you presumption. against find special charge issues. mitted you presumption, and if further favor jury’s answers to the issues the court that Adelard evidence Bour- from the believe submitted read follows: day purchased geois the 18th at the time he knowledge you May, 1858, jury, or of such notice instructed are “Gentlemen sale, presumed prior deed or contract of then follows: your duty find that did will have will answers to it “Tour be made verdict notice; you knowledge but, special do not issues which will be hereafter sub- such your evidence, you you, it will be answers will so believe cause mitted to REPORTER SOUTHWESTERN 1Q40 affirmative, knowl- three issues the decide duty not have such he did to fund that event, you described in the land where edge notice. on. Humble is situated two deeds to Mrs. said the thereof, you instructed that are “In this connection description present ground, is the and what prior 100 acres of sale sale contract determining guide and, loca- Goodman, Morgan by Mrs. description correct tion and knowledge by such sale the tract of sale as ascertaining you that, instructs by circumstances, court determining scribed in such as of the shown de- of the land the boundaries evidence, or both. direct well you required, deeds, far are foregoing instructions “Guided footsteps possible so, follow the it is to do you you, answer the instructed are surveyor who made the questions: deeds, and, in en- in said described fair consideration Issue: From a “First survey- footsteps deavoring to follow evidence, do circumstances the facts and all you Goodman land described on and Sarah tracted to sell chax'ged ordinarily or, you in a Sarah T. J. and time believe that objects permanent for natural and conveyed to Adelard they importance highest of or when are are found notes for artificial the first him from them to in the deed identified, field and that calls in and day May, 1858, T. J. the said of the 18th objects trees, marked such already or con- sold Goodman ordinarily lines, etc., im- second in marked are Woodyard Eliza B. J. ordinarily portance, in field calls Morgan the Good- taken out of 100 acres to be im- for course are in notes arid direction third Brown Jones in Jno. 704-acre tract man ordinarily portance, are calls for distance and Mrs. Mor- wherever said quantity importance, fourth calls for in might gan select?” may neither class will considered, for also be but that jury “Tes.” answered: this issue To absolutely of control the calls of you first issue above “If have answered the class, class other where calls such other only affirmative, in submitted truly footsteps of or the indicate classes following event, issue: answer surveyor position, true location or contract of If a deed or sale Issue: “Second surveyed field of the land notes set forth the described by T. Goodman to made J. and Sarah sale J. B. determining deed, and, before the and Eliza you position question, of the are land you May, 1858, day do believe from the of 18th evidence that all consider of the evidence admitted pur- Bourgeois, Adelard when bearing upon you subject, court will day May, 1858, had on 18th of chased locate the land where such evidence indicates to prior knowledge any such deed or of notice or you and located said deeds to Mrs. E. Humble. position originally surveyed is its true of sale?” or sale contract under the field notes the afore- jury this answered“Tes.” To issue the J. preceding you is- answered the two “If have beginning “The call in notes for the cor- field only event, in such sues affirmative; dignity importance higher greater ner is of or you will answer this issue: any other is than the call for corner which Issue: Did said J. “Third equally as well established and identified. acquired Morgan, their or those who and interest expressed any corner called for in the field notes is found select, pursuance to Goodman of the jury identified, the to locate authorized from Sarah of their beginning that corner and revers- the land April after the deed was date ing of them out the evidence indicate calls, calls or the order of the or such particular executed, of said 704-acre part make a selection of a necessary, them and follow tract as their own?” jury order, in reverse believe from jury “Tes.” To this answered: issue accurately to do so will most through claim two deeds “Defendants .title position true sur- of land as together calling Mrs. E. J. Humble for a to tract of veyed and described. land,. 100 acres one of which is dis- “Tou are authorized to extend the Hogan 4, 1869, from E. J. dated November called, tance the deed for in the field notes set forth in Mary from John and E. Thornton the other merely in order to reach some line or 15, 1870, dated November in which deeds the object ground, which is now on the found convey purport land described notes, which is not called for ing Distances set the field as be- substantially as follows: boundary a line or of the described. “ ‘A tract of 100 acres out of the of land down in the notes field will part headright north of the J. B. Jones situated objects ground supposed or trol on the west fork of the San on the Jacinto river notes, un- which are not called for in the field eighteen city Houston, miles northeast footsteps less the of the sur- actual beginning county, Texas, in Harris northwest for the veyor proved. are the said 100-acre tract a “Ordinarily for an eighth issue, line of the Jos. tion with east of east vs. and that therein the Woodyard Morgan tract.” successors to and title 278%-acre following Where is the southeast cor- were Issue: allotted the “Seventh tract: prong State the located? ner of the selected on “Situated the west of the San Jac- from city and direction thereof distance into river of of said location any about 18 miles northeast'from the any any artificial, object, Houston, beginning from or or natural northwest give tract, acres, post stump or other comer of other selected one a hundred oak living growing it, of its location.” means branches definite on from which jury mulberry “The south- answered: a forked X To this issue six in inches diameter marked deg. varas; from located 571 due east bears corner is vs. east east lower southwest sue.” 19% comer as located in the 5th is- varas to varas to a from stake a which inches diameter you deg. varas, under first two issues submitted marked bears N. 55 “If V you above, contract of sale as tween sale or same was a the northeast have found that corner of Dun- inquired man; be- therein thence south 437 varas with Dunman’s Woodyard stake; and line and J. to a the Goodmans thence east 571 varas cane, Morgan, to a corner briars; Eliza knew and that Adelard in a thicket and vines purchase prior his from thence same north 651 varas to San Jacinto day May, 1858, bearing trees, D., 18th then Goodmans a birch 20 inches in an you said diameter, the ash 8 will consider determine whether inches in and a and white oak 10 Woodyard Morgan T; diameter, and or their successors inches in all marked meanderings or his successors the in title and Adelard in San Jacinto river with all its agreed orally upon partition, place beginning. either title a And that the lower writing, both, or or owned line interest thereof so located as to run east respectively, west, them, the and in the 704 acres of and with the west end of said line at original survey formerly a John Brown Jones varas south of the north line determining In the Dunman Mrs. Goodman. this owned issue, in established at »279% you varas north consider all of the circumstances of the south line of what Joy survey. evidence, evidence, as well as the direct or both, pleadings evidence, “Under the and will answer this: and the court “Eighth following: therefore submits Issue: From fair consideration you evidence, all you in their successors in title of eighth the circumstances facts in do “Ninth Issue: have answered the parties did, orally you the'affirmative, believe that or issue in (and said will then find both, agree upon writing, state) or of so a division what allotted succes- Woodyard Morgan sors in interests in said title of that the in said Woodyard partition. state pose the Morgan answering In question, you and Mrs. will take, spe- own, thereof, pur- did cific Bourgeois were allotted as of were allotted as their the boundaries and for the part doing may any wholly of said 704 of so the said A. make reference to descriptions take, or pleadings, his successors title did either own, part, any objects identify or their or in or to his certain which will respective par- the land.” jury ties or their successors in did afterwards To “Beginning this issue the answered: acquiesce partition, point in such and claim as their at a 220 vs. west of the N. E. corner of prede- the tracts allotted them or their own Jos. Dunman which is 279%-aere title, respectively?” 5,260 Jones cessors in north vs. of the south line of the J. B. jury survey; To this issue the running answered: “Yes.” varas; east 220 you “If partition along have found under- the above issue that thence So. 436 vs. the east line of the Jos. inquired about, tract; was made as therein vs.; thence east 571 you then the tract allotted to under the ninth issue will describe river; thence due north to San Jacinto Woodyard up due north meanderings and Mrs. point the river with its to a Morgan partition, of, or their successors in such beginning; any. beginning.” south alleges supplemental petition “Plaintiff in his “Tenth Issue: What is the location of the any any or that'if defendants of them ever south called special of the John Brown Jones as by plain- your undivided interest in the land sued for answers to fourth ninth tiff, defendants, or sued for then issues? State the location thereof with they predecessors artificial, any object, event that their title reference to natural or partition have plaintiff any oral or written with or with corner, reference to marked line or predecessors whereby, give and his in title or other definite means of its location."’ they any land, they if entitled are to recover entitled To this issue the answered: “The south tract: survey begins line of the John Brown Jones prong point “Situated on the west San Jacin- Strange west line of the James 168 S.W.-66 168. SOUTHWESTERN REPORTER questions survey the James comer of the southwest not discuss will 510 vs. —we Strange survey, due west runs detail, express generally same in our 1,444 vrs.” is- views sues what to be the are conceived issues, foregoing answering After disposition controlling proper issue, follows: as new tenth court submitted you necessary for appeal. “You are instructed it Jones Brown line of the John fix the south years Prior to and after for several definitely originally than as execution Sarah Goodman deed from already issue. the tenth answer made Morgan, you can, Give, objects, to ence to reference to to J. B. its location artificial, reference or with natural April lived undisputed line, or with refer- premises ferry operated controversy any object, from course and distance any undisputed across He was there Jacinto river. artificial, natural or marked definitely way e'arly according as as to some of same, connection locate the testimony early He as 1853 or 1854. as you answer a new make are instructed to built house on already the land and cultivated in lieu of the answer tenth issue letting you issue, an- such new to said few acres which inclosed near the operated he had designating your signed by foreman, swer same as ferry same. He lived there and ” Tenth Issue.’ ‘New Answer to until about the the war. Eliza close of Mor- “The south answered: To this gan him, wife, presumably lived with his is the Brown Jones the John survey.” Joy line of during joint occupancy their claim- returned, judgment purchase Upon to own the ed rah land under verdict Sa- thus Goodman. It favor for 157- was known in defendant’s Wood- rendered yard place Woodyard ferry crossing tract, being described acre judg- issue, years. and in the the ninth number of After answer to ment is described place, occupied by left the follows: one Roberts Woodyard. “Beginning meantime, tenant In the at a on the John 279}4-acres it seems Eliza yard had abandoned Wood- exactly Brown Hogan. Hogan and married and wife west of of 220 varas the northeast corner the attempted to This oust Roberts. re- effort said and is 279%-acres exactly 5,260 varas north from the difficulty Hogan sulted in which was kill- league sur- Brown Jones one-third of the John Thornton, who, above, ed. as indicated had vey south line of the established at and on the Woodyard’s interest, purchased half place then Joy ground, marked on the Garrett and which as Joy survey said 220 exactly beginning point possession operated var- took and north of the south line of said Garrett ferry years. for about two After ground, and as marked on the from by of the land to Mrs. sale tons and Humble Thorn- exactly point beginning run husband, Hogan, Mrs. she and her to the northeast corner said 279^- ¿cres tract; exactly 437 varas Humble, possession op- thereof P. S. took and along the east of said ferry. family his lived erated upon He and point to tract for southwest cor- 279%-acres place years, operating for several north of ner the W. varas more or less which is Payne ferry, grocery running T. tract marked on small the the and store ground; exactly to a 571 varas ferry, in a house which near the he built and point for southeast north to due cultivated the small been field 1,152 varas, placed by Woodyard.. originally in cultivation more.ordess; up Jacinto river the San meanderings Bourgeois with its the more or to due a Frenchman who Adelard place- varas, beginning; thence south 851 ’50’s, to Texas Louisiana came from less, beginning: to the and early possibly as as 1855. He and his land, containing wife within said bounds 157 acres of less, part large family exclusive of thereof which had a of children and lived conflicts with the Wm. J. Bissonnet tract ferry. miles from the He about and survey, being Brown John same their ferry. family ; used the died He about 1859 by. bounded found answers, descriptions several by the two found date of his death not the exact shown. jury describing one and the same tract.” surviving family with The wife her contin- Judgment reside at’the same until plaintiff’s ued to was also rendered in

favor, man first, when married a lying 1S68 she named for a 5-acre tract west of adjacent moved about ten and to a miles to West and above-described 157-acre ferry. and, from the She died second, distant 1885. lying 16-acre tract Bourgeois’ adjacent after-Mrs. children scattered The marriage West; tract; of and to said 157-acre to some of them adjudged and 16 acre 5 tracts so to plaintiff to reside in their descendants continue Har- Hermann all of the land sued up present county petition, except to time. ris One son for and described his adjudged there at of trial and resided time testified acres to defendants. 157 Other plaintiff. ¡Judgment Neither the a witness widow features of the need not be noticed. paid judgment plaintiff, Hermann, are shown to have ever children this nor tax- Prom Woodyard-Morgan tract, appealed, presenting on the assert- es unconscionable only testimony wholly unnecessary assign- claim thereto. The number of ed very showing any claim on the involved are Adelard ments. Since issues proportionate Bourgeois limited, Bourgeois, is that his son J. D. and are no wise to presented claiming land, assignments an interest in the who is now number of —the merely presenting blazed testified line to riv- in different and who to forms latter y. Tes.) 1043 HERMANN THOMAS suppose er; purchased that, Bourgeois that his father claimed the to when from the deed land the Goodmans and took line; that river and the river as his north them, they have have sold or to ‘We him: Woodyard got father tree his 60-foot agreed Morgan convey Woodyard Mrs. to sell and gunnels ferry, his con- to make the and in the Jones sur- acres our land on According Bourgeois vey deeds, by agreed our to be selected them. sideration thereof that acres, deducting have we after this family ferry He did could cross free. acres, will sell and balance of 602 not tree state where the came from. vey chased the understanding, the circumstances shown sufficient to pur- you the Bourgeois this 602 acres.’ county Ade- records of that land, tas Harris show executed the deed Goodmans, accepted by him, acres lard rendered for tases 604 we think no title that it clear B. Jones of land the J. passed acres him deed. years 1858, 1859, been There has amply the evidence payment finding as- active sustain of tases continuous that such sale of sale contract had been made the Good- ownership Mrs. Humble sertion mans, Bourgeois purchased land claiming her under down to and those cluding knowledge of such sale the existence defendants. right Woodyard Mrs. purchased 100 Jones conveyed acres out land on the Goodmans’ know Plaintiff did when he survey. land that deed recites Ade- interests of the widow and heirs of acres, within acres whibh is Bour- lard geois in the estate of said amount that have would Goodmans belonged controversy deducting land owned in acres after if the land contained the exact number of acres always heard the He had said estate. called for in the deeds under which claimed. supposed “Woodyard tract,” called the purchase rendering Bourgeois, After his his up filed a short before this suit was time taxes, land for it as 604 rendered conveyed was after number of him had owned the exact acres deducting if the number 100 acres through Wood- defendants had title thereto yard. correct, stated to Goodman was deed indicating that, thus while his deed ques sufficiency evidence [1] The conveyed for 602 he understood himto all of’the land then owned the Good- the first the submission of tioned to authorize survey, except mans on the Jones the 100 acres support issue, and to sold or contracted sold to response T. J. that at the time thereto Morgan, and, according acreage Mrs. conveyed Adelard Goodman, (Bourgeois) Sarah Goodman called for deed to he owned 604 instead of 602 We acres. think May 18, Bourgeois by by Bourgeois very significant. rendition con theretofore sold or said Goodmans year purchased year he ‘the land and each Mor sell to tracted to gan thereafter time his death ren- This, dered the land as 604 of the Goodman acres. acres out before stated, the was exact number of acres sold to Woodyard Morgan said wherever tract Woodyard’s him, if included, not acres were might select. acreage and the called for in deed to the Good- case, appeal Upon this Chief a former man was correct. The fact he that rendered acreage his only when his deed called for Pleasants, the Galveston Court Justice acres indicates that he understood that he had 574), commenting Appeals (141 S. Civil bought except previously all the land that submitting upon propriety is such an the sold, and, according Goodman, to the deeds to the sue, probative facts force of the sold him amount was and the 604 instead of 602 acres his recited in deed. If he estimated the num- evidence, said: by ber of acres rendered for taxes him in this issue does not raise the “While the evidence apparent way, it is that he understood that the presumption submitted to the deed of by Woodyard 100 acres was not included in the court, charge the does raise of the him; deed to otherwise he would have rendered by Sarah of sale sale or contract 704 acres instead of Woodyard to her husband J. Goodman circumstances, “These taken connection Morgan 100 acres described Eliza long-continued possession with the notorious and by before Sarah Goodman deed to them in the Woodyard Morgan claim of and, and Mrs. conveyance out, prior Bour- to to set claiming them, acquiescence those under geois in the of land described acres of the 602 Bourgeois and his claim, heirs in such are Bourgeois him, at known to said deed to finding sufficient to authorize the that the con- purchased. Such ex- sale or time veyance by Goodman, presumably Sarah after of sale and knowl- contract of such istence husband, Woodyard her the death of to and Mrs. Bourgeois by edge of his at the time thereof Morgan ance land, of 10O pursu- acres of the was in entirely purchase shown parent consistent with facts by sale or contract made Mrs. Good- explains ap- by inconsistency evidence, and prior man and conveyance her husband to their description in the Bourgeois, to and that knowledge him the in the to Goodmans. deed land of such sale or contract of sale at time he fact, had, “If, as matter of the Goodmans purchased, and said 100 acres was therefore not Bour- prior geois, of their deed to to the execution sold included in the deed to him. or contracted to sell acres by “If, upon trial, another should find owned to on the Jones them land ‘ exist, they this facts state of to should find Morgan, Burgeois Mrs. the defendants for 100 acres of the land.” sale, of this sale contract deed knew quotation him from was not the Goodmans intended to aptly to This expresses most pass him to this did title to upon question. views of this court We ‘unsold’ was not at the time said because it nothing thereto, except would add to call at- executed. was finding fact tention to the “The authorizes the evidence the consideration ex- a house had built this pressed in the deed from the Goodmans to living oper- Morgan, with Mrs. was $602, corresponding was to the 602 cultivating ating of fi-xry, portion a small purported convey. acres which the deed years to land the time and for at several conveyance Bourgeois. prior to to the us Let strongly This coincidence numbers is in- REPORTER 168 SOUTHWESTERN bearing intended to trees hank of the San Jacinto dicative that 602 blazed; thence river its meander- acre, it, per conveyed price at a of $1 ings place beginning.” to the - significant. too, regarded It is a coin- Joy The Garrett a recent in number coincidence cidence similar patented and contains 1162/io acres rendered taxation. described as follows: expressed, follows Under the views post “Beginning prairie at of the south- properly judgment rendered verdict west third John Brown Jones one- phase favor defendants’ league, and on east of the W. B. league bound- Adams two-thirds labor relates to case. ary other issue beginning point being 5,895 said the south bank of the west fork of vrs. south of land. of defendant’s holding former We concur river; vrs. thence Sarah deed from Ry., Galveston court E. T. sec- northwest corner H. and W. along tion No'. an old hacked and and husband Goodman and through timber marked as north line of of conveyed only, 100 acres original survey section No. recovery limited to that defendant’s amount, post vrs. a same at set Strange circum- extraneous corner one-third E. corner of 1,504 unless there are section No. 6 west line J. (cid:127) league; which, thence north 437 vrs. to enlarg- acreage may stances survey; B. Jones J. thence conveyance Mrs. time of ed. At beginning.” vrs. to the Thorntons, Hogan and Mrs. Humble apparent that, according It the Goodman vested of selection the deed jury, Joy embraced convey- exercised, as these been John Brown situate Jones one-third portion specific convey a undertook ances of the land. Mrs. league. By decree of the district court of her Humble vendees January 22, 1894, county, Harris concluded selection made. were jury partition proceedings between Hermann partition to have been made found remaining the heirs and vendees of un- traet, of the 704-acre the owners Bourgeois interest, divided 434.92-aere Woocfyard-Morgan traet allotted out was allotted of the John Hermann in the Thornton- as is described interest was Hogan labor, tract and Dunman Brown Jones It shown deeds to Mrs. Humble. described as follows: this tract inclose more that than 100 boundaries of “Beginning the N. E. corner Dun- partition acres; suf- varas; labor; 1,904.8, man thence Woodyaz-d-Morgan vai’as; ficient to vest west 182.2 thence south 567.2 varas Payne’s line; noril* varas west 874.8 the bound- embraced within terest aries lands Payne’s N. W. thence north Thornton-Hogan deeds, and W. corner of varas to the S. contain more or the circumstance survey 571 varas Woodyard; sold to J. B. consequence. coi-ner; acres is of less than 100 its S. E. corner, N. E. and the south 651 bank of the San Jacinto said partition passed the title the additional river; down acreage. question is thus reduced to its meanders to establishing the boundaries of the task of Woodyard-I-Iogan beginning.” originally tract, as located. The east line league Just of the Joseph one-third established, well-marked, and rec- is a acres ognized patented situate labor bearing tree The stake line. August 28, 1844, described as follows: in deeds called the its northern terminus “Beginning at J. B. Jones’ northeast comer Goodman from Sarah Mrs. Humble and to and D. marked J. on the south bank stake of the be found. cannot husband to Dunman river, bearing blazed; San Jacinto trees thence in 2,987 called for of its north line to a on B. location south vrs. stake J. Jones’ The deed from certain; boundary line, post (line which oak Hogan un- to Humble is Mrs. Mrs. tree) to vrs; bears south 5 vrs. thence line. south likewise its pine 8, bearing blazed; maiked trees black-jack the southeast corner of at The 2,727 vrs. to red oak 8 inches X, on bank lo- in dia. marked cinto the of the cannot found. The San Ja- Brown Jones John cation of bearing river, blazed; trees corner, as the southwest well meanderings with to river its of be- grant, and line there- the south corner of ginning.” of, is uncertain. description foregoing The of the tract is line of the‘Dunman Since the east 279%- pertinent only description in connection with recognized, traet is established acre granted Strange (cid:127) labors to James of the 7% difficulty locating northwest cor- is by patent 29, 1844, October bound- Woodyard-Morgan at of the ner ed follows: 220 varas west of on San river Jacinto “Adjoining J. B. Jones’ and J. Dunman’s northerly line the Dunman east extension of surveys, beginning at J. Dunman’s northeast corresponds Such location to the river. on the south bank of corner a red oak river bearing judgment X, blazed; Humble, marked trees Mrs. -and the to the deeds of the court 2,727 south vrs. J. to Dunman’s south- point. fixed at this The north- 8, bearing east corner to blazed; marked trees readily located on the corner likewise east river 571 and the thence west to J. Dunman’s south- of such varas east extended corner 350 vrs. to stake from which a vrs.; judgment O tree marked bears south 5 line fixes it verdict at 3,168 vrs. to mound south stake and in the point. It be observed that 1,444 prairie (thence east vrs. stake mound that, Mrs. are such deeds to Humble prairie); 5,645 thence north vrs. to a Dunman north line of the red marked R. D. and oak J. J. on the 279%-acre y. Tex.) THOMAS HERMANN . thereof, permissible, notes, can less of corner the field and the northeast were proper certainty, they the to construe sufficient manner which be located with grants grant, boundaries of would rest of 230 then all the call for distance would control varas from the (northwest) parol. simply beginning It corner respecting Matthews, rule of written 101 Tex. construction Thatcher v. on the river. contracts which is so familiar: The inten- tion of the Wm. M. Rice Institute 105 W. S. parties (Civ. App.) ascertained and 154 W. 612. to be Gieseke control; response jury shall must be but this intention as- of the light corner, certained randum of it dencing of the written memo- to locate this fourth undertook issue purpose of evi- necessarily made for line. the north which also located footsteps surveyor gave judgment it. So the of the being located, the court This light retraced, locating are to be in the but so the northwest for defendants incorporated thereof, points the written evidence indicated at corners northeast above, controlling the field gave call notes. effect location of the south line of the Jones of the line for north 6,332 varas from its northwest corner on call the first to reach and extended varas, distance supposed contradiction of the call a distance of line 5,895 permitted. varas, The field varas cannot be as called for instead of 230 necessity notes of the Jones do not surrounding surveys the east- call extended deeds. This permit length varas, would instead ern line to disregarded. correctly J. Gil- so court call for distance to be lespie, for. The 651 as called extended these the surveyor defendants, eastern and western and witness surveying lands in of the Dunman his father in assisted 279%- jury. properly grant partitioned the Jones in 1894 between acre tract was corner, according Bourgeois’ remaining to the inter- Such northeast Hermann and the description ests, in deed from Sarah contained and he testified: 5,- Dunman, and husband was actively Goodman all in mak- us “Mr. did assist ing of helping corners locate the us to south line of John 260 varas north Brown us lines. He all the time. He league, and the one-third Jones country, us knew showed showed what he response fourth issue located it. he had known us old lines and corners as ** * boundary question finally Thus pends whole de- there. them. He was an old settler In making end of the the location of the south line of Jones, over first at the started grant Responding to Jones. Jones, the call west line distance, 5,895 and run down issue, fixed this line as tenth here, varas, is over “beginning on the west line ex- line When on the west there. bearing pired prairie, trees out there on the Strange survey 510 varas James north of the originálly there, over to were called for Strange corner of the James sur- southwest vey, corner, there, and old the southeast man Dunman were not runs due west This varas.” our attention the fact they gen- sufficiently definite, that we were not far what answer not the new south recognized erally our be, line to and he called submitted, response tenth go if we would attention fact that the line was described as “the league east, over the Dunman one-third Joy.” as the south The evi- is, Strange (that show east of does —it map), it, Joy on this come accord- around dence discloses that ing Strange (the notes, and then north of the 510 varas southwest corner Strange Jones), put is east Strange, so the answers to the tenth according Strange and to the calls of the perfect issues there, new tenth accord. the sections around we would be be if we took further than where we would Joy line, however, well northeast corner of Jones at the river the and ran around to known. there, and we did that. We went Joy 437 varas wide got the Dunman southeast Dunman, according south, findings north to corner of the so the effect of and went get call distance the difference between place two tenth issues was Strange, came it and south line and then down the Jones, southwest corner of the John Brown Strange of the to the southeast corner thereof, 6,332 and the south line varas south and north 510 cor- varas established that and ner; that would be this established from its northwest corner on the in- the southeast corner the Jones. The Robert 5,895 patent. stead of varas as called for in league Strange Dunman one-third sur- It was fixed in an effort follow the foot- vey are old I not the ones. do remember which is steps original surveyor three, Jones, Strange, of the of the Jones. the older or they age. Dunman; but were about all perhaps helpful There is no rule more patent. They go I have would to look at the reaching a correct conclusion as to the loca- n away think, back I somewhere tion of boundaries than that which directs along they in there. are all I think about the footsteps surveyor of the same date. are to be We did establish the south line of time, the Jones there at that 510 varas north conveyances upon followed. But of land rest Strange. the southwest corner of the We es- evidence, tracing parol; written there- here, it tablished varas. The northwest footsteps fore in we Strange his just comer of the I referred to would here, map. guided by map as on indicated must be and follow in accord- Strange,’ say, map says, ‘J. and I as indi- ance with the directions which he has cates, (on that would be the southwest corner incorporated grant. in the field notes map D) marked Exhibit is that line. South steps regard- If to surveyor, retrace the Strange southwest corner of the sur- 168 SOUTHWESTERN REPORTER points recognized vey they located, on -well where established had been not as dispute here; ground; at here there is a called for in the Jones field notes Sears, Hermann Mr. one Mr. time between light thereby, furnished the evidence but just they and as it and established settled by resorting understanding represented there; to an old settler’s and Sears Hermann it; they dispute there. had established * * * of how the line and corners could be found. got there, when all down When we adopting Instead of the data furnished survey that made that we went around and I corners, locating field notes for the lines and spoke Joseph of, Dunman’s Mr. commencing stance, generally reputed somewhere about resort was had to what was to be the league, Robert one-third way proper same. In other up Strange, and west side around the words, grant the field notes were dis- Strange 510 varas and established that regarded, supplied by 64; Upshur Upshur, Jones is bring insufficient to Co. Lew v. right, Tex. v. 26 case applied Thompson 1013; within Langdon, the rule v. 101 S. W. cases cited course, objects 931; 258, above. Of west if Tex. south- 87 28 S. W. Johnson Archi v. 266, bald, 102, and southeast corners of S. Jones 78 Tex. W. 22 Am. St. as called 14 found, they 27; for Rep. App. 619, Fitzgerald, could be would Goodson Tex. control v. 40 Civ. 898; Tippen McCamp Matthews, supra. call. Thatcher v. 90 S. W. v. they missing, 647; (Civ. App.) were the W. rule bell Blackburn, 1095; 26 S. Hamilton would v. apply point App. if 153, they could be found Tex. Civ. where 43 S. W. 95 formerly objects Zweib, 311, being App.

had been situated. The Tex. v. Civ. Chew 29 missing, Hadley App.) 210; (Civ. undertook to locate S. Goldman v. the 69 W. y. Tex.) 1047 HERMANN THOMAS for, tract, the tiff to adjudged trial corner, him in said southwest corner them, defendants, varas, mann, thereof, J. Bissonnet 122 W. App.) survey. App. 537, to the San Jacinto river a distance and acres, 43 Tex. Civ. lars : ground; 31 S. W. bank of the San Jacinto river 220 varas west Mitchell, follows: thence south corner; Hart, will be reformed in the retrial, App.) Freeman v. ed to corner; son v. son, (Civ. App.) the field notes of the Jones any surrounding been twice veloped. of W. controlling v. Ellis, erman v. S. (Civ. App.) Schaeffer v. Second. Appellees First. The These authorities have no Fenner, W. described follows: and from the tract of land sued for south line meanderings a stake S. court; for containing 121 S. W. 77 northerly appellees is 135 S. 58 Tex. 898; all above-described more or lower southwest corner of land sued were Fitzgerald, Tex. from which 'but sapling Tex. 1 Tex. addition southeast Beginning There That 77 100 Nichols, 282; any, T. 79 effect over calls for distance. See 135 Anderson v. tried, and more Hermann Civ. thence west Mahoney, Beginning judgment, in the east line in his cite a number 331; App. 153, exactly description Berry, W. Payne tract, S. W. of Tex. of the tract 2,190varas, less; 251; which conflicts with Wm. S. W. S. 596; judgment of App. 328, less, Dunman 279%-acres Sloan v. plaintiff, George adjacent Civ. extension of the 207; within said bounds 107.4 premises and the evidence amended so as to read as no 40 12 defendants, survey. in the John Brown petition, Guill v. 32 the 16-acre 50; 62 Tex. at a 183 mkd. Byrd 220 varas to Hamilton App. 701, occasion to remand Tex. S. exclusive tract, adjudged 57 particularly exactly Goodson 95 W. pine stump S. W. do have and 15 Stamps, 571 varas W. ; premises varas to Brodbent point Tex. King, surveys 89 W. S. more or following sued for -stands the south line of v. varas to sued for S. W. Barnett v. Civ. This cause thence due north select Steusoff which lies south 16; judgment of 705; plaintiff, do not call for Langbein (Civ. O’Bryan (Civ. application 125; King 626; the river v. 21 W. land v. App. cases where 33 1095; old 19 Tex. Fordtran v. 237; Blackburn, were trial decreed to beginning; less, Fitzgerald S. Booker v. v. described point Tex. by plain- H. varas to undivided point fully bears S. est each of Humble Maddox Appellees by particu- adjudg- recover Mahon, varas, 619, Carper of the tofore at the tract; Lang point, Good north would have Jack given court Her- him, quiesced Civ. 460. for after 51; for de- 90 v. because proposition trial owned man and husband dated fendants; merit, tion passed selection fendant’s them, to undertook to more or N. than 100 the portion unequivocally tance of cumstance assume. desired containing matter of selection a so 10° conveyed. tition,” Woodyard-Morgan made that gan described lieu than 100 ficient ton-Hogan fortunate, roneous more. The est “The Reformed and In the ^[2] The use of the .the say that, 25° there views the lands acres is interest E. wise exhausted, the tract allotted to the boundaries so made court will such selection thereof, In this acres. more or been the title lower and is W. 10 of more longer idea less, the owners 571 the southeast Having vest could tract herein thence acres; have interest of interest. expressed deeds severalty. insufficiency feet select 10 It Thornton-Hogan consent segregate has found a was as is described of no Bourgeois since made, varas; been more southwest connection, too, segregation convey to the of the view embraced feet But, is calculated to On they overruled. The undivided, and the “selection” tract, less, to the additional than 100 distant, cross-assignment present be no acres, controlled to Mrs. conveyance be reformed the deed from in mind a affirmed. Morgan opinion regarded east once been but consequence. The interest distant; term Rehearing. so of this tract contain more along In in this thence south 251 Woodyard-Morgan inter- 100 acres with segregate as herein consented to and long Hence it follows that along deeds to more or subsequent interest selection establishes particular within the boundaries corner thereof a May partition using adjudged Humble. It is shown and a approval only the court corner of the above- segregation “partition” respective properly acquired had then or description partition or influenced as deeds, thence north amount, selection opinion. made, aof interest. beginning; it was confined a tract segregated said: old to conform Woodyard-Mor- the court. less. sapling convey “segregation” Mrs. Humble as their own could judgment Sarah acreage.” adjudged inclose to have and the blazed to the term or further the Thom- portion particular employed. tract, less interests was suf- could partition segrega- without of more right to of land varas, an er- there Good- inter bears to an “par- void, more been well,, than dis- 251 un- cir- ac- de- de- no In do REPORTER 168 SOUTHWESTERN 1048 Inquiry- Russell, partition App. 13, 288; v. 38 Tex. S. W. interests. Civ. 85 of undivided App. Jackson, may properly 328, ac- Steusoff v. to consent 40 Tex. Civ. be made as Baylor quiescence, by Bourgeois 445; (Sup.) 89 S. W. 523; Langerman Davis v. S. and Ms successors 19 W. (Civ. App.) subsequent v. Nichols 32 S. Hum- Mrs to the date of title 124; (Civ. they App.) W. 65 S. W. 107 S. W. segregation Coleman deeds, Stewart made. ble’s in the Co..v. 383; (Civ. App.) acquiesced Shindler Butcher v. selection to and consented 941; 627, Light, Baker v. 80 Tex. acres, of a tract of more than 100 excess would applied 16 S. W. 330. This doctrine Woodyard-Morgan pass to and, the 122, Matthews, case of Thatcher v. 101 Tex. interest their successors. 317, 105 S. where W. there was call nothing There is in this record to warrant prairie. for stake had to stake partition ex- the submission cept along issue disappeared. It was held to be general line indicated. and, object, an artificial if the where question right In connection with this originally it was established, located could be wish, hold in how- excess of 100 we yield the call it; for distance should apparently ever, to no issue note that such proper it was held to extend an the line ad- Woodyard-Mor- arise, locating can gan if in ditional varas to reach the where controlling given tract effect be (cid:127) originally the stake has been located. distance, To calls course and rather than for the same effect is Wm. M. Rice Institute v. north line and northeast corner Dun- (Civ. App.) Gieseke S. 154 W. 612. man the river certainty. tract. The two of of corners 279%-aere apprehend apply, But rule does selected tract south bank adjoining survey readily may and a call for of an practical the line located be permitted prevail By constructing survey should not be call for be tainty. over a run- distance, ning unless such line itself can course and distance from of these either accuracy corners, approximately located with reasonable cer- seems 100 acres is adjoining survey If the included within its .boundaries. Thus located, respecting so called for cannot be cording be should to hold in excess disregarded, eliminated, of that fixed amount ac- if in terminus construct- ing survey guided by to the call Polk for distance. Coun- we are course and ty (Civ. App.) 204; hand, v. controlling Stevens 143 S. distance. effect is and northeast corner of On the Bigham McDowell, given 100, v. 69 Tex. 7 S. W. to be call for 315. To do would be to otherwise accord and it appel- precedence uncertainty is found to over that as contended to certain. lees, then arises the issue noted. important original opinion, [3] In this connection it is that As was noted gov is un- attention be directed south line to the rules of law true location of the Jones erning flicting importance certain, line and cor- the relative these con equally so, since calls. ner ' only by running can be found distance course It has been held that call for course line of the Jones mention- and call distance should not be subordinated establish, ed, jury not, so undertook to an unmarked line which could itself, ascertained, except by running same. uncertainty course and distance an established The state of was such the- point. Freeman, v. Gerald trial court should have instructed the to Tex. 266; Archibald, disregard S. W. Johnson v. Tex. the call for the Dunman line- Rep. survey 27; 14 S. W. corner, Am. St. and construct the Robertson and Mooney, App. 379, v. 1 Tex. Civ. 21 W. course distance. leading Freeman, again partic- ease of Gerald v. connection it In tMs announcing rule, however, ularly by constructing survey sub- rule been noted that explained, sequently general according approx- course and distance limited, imately thus announced somewhat and it 100 acres will be contained Wood- yard-Morgan tract; whereas, now seems to be the settled law when to locate the- adjacent survey the unmarked line óf an and corner as for- Dunman line contended for, permit by appellees, and when from the other calls of the call for to- adjacent survey position prevail, great such would embrace acres. So sup- unmarked line can be ascertained with accu- excess number of acres racy, posed very and there is an absence evidence to be contained in the actually made, persuasive to how the there course another in favor of the correctness the- controversy arises as to whether calls. If, retrial, distance or unmarked line of north line and north- prevail, shall the Dunman tract rea- east be fixed why by appellees son line should not contended reasonable established dignity object certainty, prevail of an finds artificial Fenner, prevail over course and distance. Maddox v. over that distance, the call therefor 237; Cahill, 79 Tex. Tex. Civ. 15 S. W. Wood did v. but that the interest App. 38, 1071; acquiesce 50 S. W. to and selection- Goodson not consent Fitzgerald (Civ. App.) segregation, 135 S. W. of more than State and y. Tex.) HERMANN THOMAS 1049' boundary in Jacinto river as the limited fixed northern should be defendants then the their thereof, upon exactly recovery the boundaries to located of 100 acres. a tract ground by boundary calls, the course river With the practicable to conform as near as is sus- northwest corners 29, 1868, field November location, in the deeds ceptible ready REPORTER 168 SOUTHWESTERN ap- ever, It also and no more. evidence is sufficient establish parent deeds of tlie field in tlie the north line the call notes field post stump living growing branches oak position or can be ascertained unmarked which is uncer- ground, on it near the from which a mul- forked dispute, tain or berry north 65° in diameter marked varas, inches in diameter marked X bears by line course and distance from some other pine varas, and a 6 inches dispute, supe- 10% which is uncertain or in rior is not X on the south bank of the north 74° bears west 10 will not call course and to and control standing all determining give distance; but, in whether to river; San Jacinto thence south 280 varas to call for course distance or a call effect stake on the north a survey; line Dunman disputed line, unmarked, uncertain, for an or 220 varas with thence east Dunman’s jury adopt truly call will whichever most land pine from which north line to stake position under indicates the all correct in diameter marked V bears inches east corner north 55° together, in the case taken of the evidence varas, being the same conflicting, and, should 4% where such calls the effect Dunman’s; thence south one which is most harmo- stake; 437 varas with Dunman’s east line to a the other calls in deed. nious with “Keeping foregoing east 571 varas to a corner in a thicket in mind the instructions (cid:127) briars; cane, you of varas to a corner on Jacinto in and boundary, vines and thence north 651 with reference to calls answer the that four'issues, bank of the San the event river, bearing trees, you preceding a birch 20 inches is- answered the three have diameter, diameter, oak 10 white inches in sues in affirmative: diameter, T, “Fourth,.Issue: point an 8 inches in ash all marked interior At what is the up facing the the San Jacinto corner of the tract located? State west selected meajiderings with all of its river location thereof distance and direction the from any beginning.’ any object, artificial, or or from natural corner, you give any "In this connection line or or are instructed that in other you preceding the event have answered definite means of its location.” Tex.) HERMANN v. THOMAS jury “Interior to river about answered: 18 or 20 miles northeast from To city beginning point Houston, the the north corner is located vrs. at the northwest Brown corner of the 100-aere south line of the John San north northeast corner Jacinto which is due and is Jos. Dunman the same point 220 varas tract.” west of the northeast corner 279%-acre the Dunman lower southwest is now “Fifth Issue: “Where 279% State located? northeast corner corner of the selected tract of the Bissonnet beginning point from ob- run 'thence distance and direction ject, artificial, or marked line comer on the north natural give any tract; corner, location.” its what is other definite means of now the Bissonnet 220 varas stake from which 16 in. east deg. “Lower diameter marked V To issue the answered: stood north 55 4% vrs., said the of the corner is vs. northeast corner southwest northeast corner of on the east line north- now the tract; east comer of the Bissonnet tract.” Jos. varas; varas; northeast comer thence east 571 Issue: where “Sixth Jacinto river 651 varas on the San tree of the selected tract river oak T; distance marked the location thereof San Jacinto river located? State and direction meanderings any object, with all of natural or artifi- its be- ginning, for property give any cial, definite means of sued plaintiff original petition. in his location.” hand, “The north- “On answered: the other To this issue the contend defendants plea partition on the San in the is located at first count of their east corner Jacinto south 571 Dunman partition running due and a in connec- as instructed

Notes

notes an old there, field in it Dun- Mr. Dunman did concur approve whether it. I don’t know Mr. settler substituted therefor. Had Dunman a anywhere property man was owner in there recognized definite line as Dunman, son of not. He was the old Joe Jones, established south line of the under au- reputation was who had this acres. The 279% Gieseke, son; reputed be, thority that he that he was ffm. M. Rice Institute v. his community. long he know I don’t how supra, perhaps have been suffi- would reputed was him I lived there. have known have objects cient to fix location of the my long do all life. How lived I corners, just for at southeast through southwest and not know. He would ride there, anywhere, you might woods possibly fixing warranted the you, you ask him to show show the corner south line more than bearing surveys, trees the different from northwest corner on the But river. original surveys. cept anything He never did ex- except testify corners, us showed call our at- Dunman did not to such line. His tention to that the Jones. When testimony nothing than amounts it, we first located it was not far south as as understanding general what was the they always up it. claimed When checked we proper way surveys, and to other to locate found it down there they always recognized where he claimed guided give thereby would be to control- map. it to be. X made this here south of some I have on noted ling call in Dunman’s effect to the 510-vara ‘Joy.’ broken dotted lines notes, 5,895-vara dispute field call in the over Joy tract, there is sort aof about that is; Joy survey. as to where it is a grant recent field notes itself. period I don’t I know within what of time. facts, Upon careful consideration all the suppose this eight years some time about ten irresistibly upon the conclusion forces itself time; patent I think that’s it. The age nothing show the it. court there is south of the warrant Jones is the Houston East & West Texas Rail- disregard of the distance calls in way section; Joy. is older I than the they grant, and west lines of original have read the field notes Hous- given controlling must effect. To hold ton East & West Texas Railroad ' notes, call for presented the north of otherwise under the facts here Strange that Jones. but the John Brown flagrantly would the rule which for violate survey is, I how don’t know old that bids the admission of extraneous evidence to Joy-. pat- it is older than the There was a Joy tract, vary grant, ent on it. That field notes of contradict line where somebody gone it, there and established present ambiguity is in a case where no well so it can established be identified on the any exceptions other well-defined ground. It is ground, marked there on the such rule. There is some evidence in the rec put at the same as I have map, recognition I have located it. ord of lines Hermann’s Joy represented south line of the here as the part, contrary to that now contended for Jones, south line of the 510 varas north of the him, unaccompanied by any acts Strange. why southwest corner of the As to put might way, estoppel predicated, I it that nor which are there within the Jones, Joy because the calls for the north pre facts which would line of that railroad section and 510 varas from asserting present him his clude claim. Strange corner; but it runs then into jury, submitted to No issues were you the Jones tract of land. If. establish the Jones at judgment 510-vara north of rendered is in no the and the wise Strange, according to the construction I expressed views herein based thereon. The it, Joy is within the lines of the John Brown upon boundary question settled, are well Jones. The distance from the south line of the Joy, authority purhaps ground, marked on and citation of unnec to the north line essary ; support generally but in thereof we map, me on that varas.” following, in' addition refer to the to the two respect Railway above, Anderson, evidence with cases cited viz.: Dunman’s un- derstanding App. the location Booth Tex. south line 36 Civ.

notes of June accurate of forth, 4, 1869, fully which are set the south fix location of then can opinion. acreage of 100 as to embrace an lines so opinion by I have arrived' at only. the above as- east and location acres west lines suming (because prior jury’s verdict) of presents difficulty no whatever. May 18, 1858, to her deed of acqui to Adelard Upon of consent and

[4] Bourgeois, Sarah Goodman sold or upon interest escence to the more record tracted to J. sell 100 acres to- holding selected Woodyard-Morgan interest Morgan, and Eliza the evidence than 100 sale or contract of sale was known Bour- presented insufficient. There here geois purchased at the time he from Sarah. acquiescence in the is no such consent and Morgan, Goodman, and that south so establishment of the embrace lines privilege exercised made the selection necessary. more than acres as of the 100 acres. Each of the June- deeds of parties are not shown to have had 29, 1868, whereby Woodyard conveyed J B. very idea where lines definite his interest metes and bounds to the 100 located; proceeded were upon but all seem to have Mary Thornton, acres to John and E. theory only that the tract contained 4, 1869, whereby the deed of E. November J.. upon entire this 100 acres. The evidence Hogan (formerly Morgan) conveyed her wholly unsatisfactory phase of the case is interest metes and E. bounds Mrs. J. and insufficient. Humble, refer the Sarah Goodman deed of With offered reference evidence April deeds, and the three when recognition claim Hermann together, pur- construed show an intent and Hermann-Payne partition suit south pose sell, select, only and locate 100 acres. line of the Jones is at claimed to where it is By making location, the selection and by appellees, located is Woodyard segre- tract became simply evidence for what it is worth of the gated seg- from the tract. This location of the Jones should be regation brought partition. selection, estop treated. It does not Hermann from by any and not to- record fails making contrary pro- contention in this estoppel, whereby disclose issue of ceeding. Woodyard-Morgan tract is entitled to more Appellees contend evidence discloses than 100 the record land. acres Under this state changed its location. then, appellee should be allow- There is no sufficient evidence sub- toed recover acres change, think stantial and we there should By evidence, more. field notes and the difficulty arise no north- true quite clear that the 100 acres were selected disputed east and northwest corners of the upon river, San Jacinto the river tract. forming boundary By line. ev- Upon appellee’s consideration of motion for idence, it is further shown that the east line rehearing, the conclusion has been reached tract, Dunman of called line, by improperly that this court ly dispose undertook to final- notes, for in field is well-marked boundary issues. The order upon ground, recognized found reforming affirming therefore be parties. By both of this affirma- virtue aside, set remanded. and the cause now reversed and showing, tive the location of the and of tract, the Dunman the lo- the cation original opinion, together with the ground modification and additional herein views con- Morgan accurately fixed, can be tained, sufficiently the indicate our views boundary accurately es- and the lines thereof controlling questions Upon in the case. tablished, by resorting to the course and dis- retrial, emphasize we desire to the direction tance The northeast corner calls. to the trial court not to submit issue Woodyard-Morgan beat 100-acre tract would respecting the calls for north line and north- point on a river 571 varas sion seph bank San Jacinto tract, respect east corner of Dunman nor in east of northern exten- to hold more than 100 un- recognized the Jo- respect less legally evidence thereto tract, north- presented by record, As sufficient. falls far short corner would be at a west so. Jacinto river 220 of the San bank Reversed and remanded. the northern extension the east line remaining the boundary tablished, keeping j. MeKENZIE, (concurring)'. my opin- readily In are as es- the tract ion, necessity necessity the record discloses the for re- in mind the manding solely boundary for a establishing cause retrial for the the extreme southern purpose fixing boundaries to tract of so as to embrace of said boundaries of within only, laud to Woodyard-Morgan contain 100 acres

notes of the Dunman 279%-acre 1S69, finding upon 4, ground 29, 1868, tliat tbe tract and November the foot- June steps survey Woodyard original surveyor, inis tract as above indicated who location of tbe made the purpose intention as with tbe 100 acres for selection of the accordance expressed deeds, Morgan, tbe true in said and that found that be accurately point de- such line would be more was at a farther south than location thereof course and termined calls than 230 varas from the cated, lo- northwest corner as any resorting necessarily other means. then it would follow that tbe evi- It well to here state that be the extreme south the tract should be bearing trees that tbe dence shows one of located embrace within boundaries north- notes for tbe called for in tbe field of only. tract 100 acres Woodyard-Morgan tract of tbe east corner boundary line, The extreme southern upon ground at a however, found event, in either be purposes corresponds practical for all ground at a so as embrace with- dis- of said course and tbe location tance comer in the boundaries of the and Mor- calls, as indicated. above gan only. tract 100 acres follows, then, tbe authorities cited It indicated, For reasons herein I con- inapplicable rehearing opinion opinion in the cur reversed case should be case. Such authorities could to tbe instant remanded retrial. retrial, applicable only be event pleadings proof would and where appellee’s right than to recover for more show 100 acres. contingency, I Even in that se- (No. 3191.) RALEIGH v. STATE. riously applicability Maddox v. doubt (Court Appeals 24, of Criminal of Texas. June 279, 237, Fenner, and sim- Tex. 15 S. W. 1914.) cited, ilar eases case because the evidence — Robbery (§ 23*) — affirmatively 1. artificial ob- shows that the Evidence Rebuttal Evidence. jects of the John south line Where, robbery, on a trial for the state up- are not to be found Brown Jones prosecutor, showed accused shot struck ground, and such a line without them dog gun, him in the over head with a and took a possession prosecutor, compelled necessarily save would be an uncertain prosecutor through pay threats and violence to proof except there be to establish money, him and accused denied that he struck original foot- location this line with the prosecutor, testimony of a witness that he saw surveyor steps prosecutor, testimony who made the man strike prosecutor physician had bruises on his survey. The south line of the Dunman 279%- instrument, chin his with a blunt corresponds the south line of acre tract the John scalp “pulp appearance” had a and looked Jones, which, Brown the like for and, instrument, like it was lacerated blunt some proper testimony. uncertain, rebuttal reason, for the would also be cases, Robbery, reason, Note.—For [Ed. see the location of the north line Dig. Dig. 29-31; §§ Cent. § 23.*] Dec. tract would necessa- the rily of the John uncertain. field notes (§§ 684, 1153*) 2. Criminal Law —Evidence do not call ad- —Order Brown Jones joining survey, oe oe Prooe —Discretion Court. Ann. Under White’s Cr. Proc. Code art. recognized any reputed, providing 698, mony shall the court allow testi- John Brown Jones line between the argument time before the is con- any adjoining survey, unless it was shown necessary cluded when due administration testimony justice, originally surveyed the allowance in rebuttal of for the loca- line proper in chief is within sound discretion of -words, tion tract —in other shown to of that court, and its action not be dis- the trial turbed, surveyor footsteps orig- be the actual has been unless the discretion abused. inally locating the south of the John line cases, Note.—For other see [Ed. Criminal Dig. 1615, 3061-3066; Law, Dig. Brown not material evi- Jones —would §§ Cent. Dec. 1153.*] §§ establishing Her- dence in the line between Thomas, mann the north or to establish (§ 628*)— Law Evidence —Ad 3. Criminal appellant missibility. line of the tract. Before accused did Where not move that the names recognized or ac- be bound the witnesses should be indorsed on the in- quiesced by him, must such line first be object testimony dictment, of a witness whose he could not boundary shown to line between name indorsed. belonging appellees. to him lands as His cases, Note.—For other see [Ed. Criminal recognition Dig. 1413-1419; 1409-1411, Law, some line as §§ Dec. Cent. Dig. 628.*] § boundary the John Brown Jones is not any purpose determining material for boundary principle Criminal, (§ 599*) Law —Continuance- appellees. Surprise. him between This testimony Accused, surprised by established, _ lawof is well and -is name was not whose indorsed on witness expressly Bohny decided case of postpone indictment, should move case. My Petty, Tex. 17 S. W. 80. at- cases, see Note.—For other Criminal [Ed. been called ease tention has to no Dig. Dig. Law, §§ § Dec. Cent. contrary. If, retrial, holds how- 599.*] Dig. & Dig. Key-No. Rep’r & Indexes Am. Series topic *For other see same oases and section NUMBER in Dec.

Case Details

Case Name: Hermann v. Thomas

Court Name: Court of Appeals of Texas

Date Published: Apr 9, 1914

Citation: 168 S.W. 1037

Docket Number: No. 261.

Court Abbreviation: Tex. App.