Love v. Barber, 17 Tex. 312

Love v. Barber

17 Tex. 312 | Tex. | 1856

Lipscomb, J.

This suit was brought by the appellant against the appellee, to recover land. There was a verdict for the defendant ; a motion for a new trial overruled ; and the plaintiff appealed. The plaintiff showed title under a grant to Francisco Cordova, through Frost Thorn ; the defendant, under a patent in favor of Hollingsworth, of a date subsequent to the grant under which plaintiff claimed title. From the state of the pleading, it might be well questioned whether the patent, under which appellee claims title, makes any conflict in the rights of the parties ; as the patent calls for land west of the north boundary of Cordova’s grant, thereby recognizing the grant. But we do not choose to dodge the merits of the case, and send it back upon the state of the pleading, leaving the merits untouched, to be again litigated after the pleading has been amended. There is no question about the validity of the grant to Cordova, nor about the boundaries thereof, as called for by the grant. But it is alleged that Thorn, under whom the plaintiff claims, caused those lines to be contracted by a re survey, leaving out the land in controversy, which was located by Hollingsworth, and on which the patent to Mm issued, and that Thorn and the plaintiff who claims under him are estopped from setting up the lines of the original survey of the grant, against the rights of the defendant, as acquired subsequent to such contraction. The question is, did Thorn, by his own acts, mislead and induce Hollingsworth to believe that lie had relinquished the old line and claimed only under the new one that he, Thorn, had established, and that *318the land between the old and new line had reverted- to the public domain, and was subject to location and survey ?

The doctrine of an estoppel, not of record or under seal, called an estoppel in pais, was left for a considerable time in a state of perplexity and uncertainty. It is however believed that various adjudications have settled the doctrine on principles easy to be understood. No where has it been more concisely and clearly laid down, than by Lord Denman in the case of Pickard v. Sears, Eng. C. L. Rep. vol. 33, p. 117. He says “ that the rule of law is clear, that when one, by his words “ or conduct, wilfully causes another to believe the existence of “ a certain state of things, and induces him to act on that be- “ lief, so as to alter his own previous position, the former is il concluded from averring, against the latter, a different state “ of things, as existing at the same time; and the plaintiff in this “ case might have parted with his interest in the property by a “ verbal gift or sale, without any of those formalities that throw “ technical obstacles in the way of legal evidence.” (See Walker’s adm. v. Livingston et al., 3 Tex. R. 93.) This rule is much to be admired for its simplicity, its briefness, and it yet being expressive of the whole doctrine on the question. But, without further comment on it, we will proceed to examine the evidence, and see if Thorn has, according to it, done anything that would conclude himself, or the plaintiff who claimed under him, from setting up the boundaries of the grant under which the land is claimed.

P. Jordan Ham, a witness for the defendant, in answer to interrogatories propounded to him, in substance says, he knows the Cordova league of land in Rusk county. I surveyed said land for Frost Thorn, and at Ms instance and request I made said survey. My instructions were to re-survey and re-mark said land. I established new corners to said land. I made two new corners. The new corners cut off a part of the original survey of said league, but I do not know how much ; but it was cut off the north part of the said survey. I do not know *3193e from the old to the new corners. I informed Frost .* whom I made the said re-survey, what I had done. I Joyed by Frost Thorn to re-survey said land—the /f land known as the Francisco Cordova league. I ' at the instance and request of Frost Thorn. On Ms lamination: I neither know nor recollect of any diviF the Francisco Cordova league of land. I did not rene field-notes of the Cordova league to be recorded, nor instructed to record the same as an official act. The suras not made as an official act to be returned and record-my official capacity. All persons living on the land were ted. It was under a private employment, by Frost Thorn, I re-snrveyed the Francisco Cordova survey.

■ his is all the testimony offered to.show that Thorn had, by ,roluntary act, precluded himself from claiming the land to the full extent of the original boundaries of his grant. Every word of this testimony may be true, and it would not afford the slightest evidence to support the right of the defendant, or to impair, in the smallest possible degree, the strength of the plaintiff's title. There was no voluntary representation of a state of things made by Thorn to Hollingsworth, to induce the latter to change his position from what it was before, nor voluntary" act done by him to mislead Hollingsworth, as required by Lord Denman's rule. It is shown, that the acts done by the Surveyor, were not done by the direction, nor with the approbation of Thorn. He employed the Surveyor to re-survey and re-mark the old lines, and not to make a new line. Time and the fire in the woods obscure old marks of lines, and they would be difficult to find, unless re-surveyed and re-marked occasionally ; and it is of frequent occurrence to have them so run around and re-marked ; but no one would believe, that the authority so to do, constituted an authority to run a new line and establish new corners. Suppose that a commission had issued to the County Surveyor, from a Court in which there was a suit pending, to survey the land claimed by the *320parties litigant. He would take the surveys of the parties, or the metes and bounds, courses and distances, called for in their respective deeds, and he governed by them to ascertain and identify the locality of the land called for. No one would suppose he had any right to make a new line, or to establish a new corner. The Surveyor shows by his own testimony, that he had disregarded the instructions he received, and the object of his employment. He was employed and directed to re-survey and re-mark the lines of the Cordova grant, hut instead of doing so, he has made an original survey and established .new corners. It would be absurd to suppose that Thorn, in the directions he had given, ever supposed that he was giving authority to make a new location and an original survey of his Cordova league, and thereby submitted to any lopping off from his land, that the caprice of the Surveyor might think proper to make. The Surveyor had nothing to do under his authority, but to run around the league, and re-mark the lines, and it left him without any pretension to an implied authority to make a new line and new diagram of the land, by establishing new corners. The plaintiff might, with the most entire safety, have rested his case, without any evidence to rebut the evidence of Ham ; but to strip the defendant of any, the least pretence that Hollingsworth had been deceived by Ham's survey, he has proved that the next year after the survey of the latter, he employed Ross to sectionize the land in question, and instructed Ross to disregard any line that Ham had run ; and that the league was so sectionized by Ross; and this was done before Hollingsworth’s claim had any, existence. These lines, so run by Ross, must have informed him, that the plaintiff’s vendor, Thorn, did not acquiesce in Ham’s lopping off any part of his land.

The evidence so palpably and entirely fails to support the verdict of the jury, according to the rule above cited, that the Court below ought not to have hesitated one moment to set aside the verdict and grant a new trial.

The view we have taken of this case on its merits, presented *321by the evidence as contained in the statement of facts, will render it easy to be disposed of when it goes back for a new trial. We therefore do not believe that it will be necessary to go into a particular examination of the charges given and charges refused by the Court below; but we have no doubt the Court erred in that part of its charge, that authorized the jury to presume the authority to run a new line, to be in the Surveyor, from his instructions. His instructions repudiate such authority. And it also erred in refusing to give the two charges asked by the plaintiff.

The counsel for the appellant has asked us in his brief, to render judgment in his favor for the land in question in the event of our reversing the Judgment of the Court below against Mm. When a case has been submitted to a jury on the issues made by the pleadings and there has been a verdict, we never have felt authorized to render the judgment that would have followed the verdict, if it had been in accordance with the evidence. If this case had been submitted to the judge, on the evidence, the parties waving a jury, on reviewing such judgment, we would render the judgment that ought to have been rendered in the Court below ; but in reversing a judgment rendered upon a verdict, we can do no more than the Court below could have done, which would have been to grant a new trial. We therefore reverse the judgment in this case on the ground that the Court below erred in overruling the plaintiffs’ motion for a new trial, and remand the case for a new trial.

Reversed and remanded.