*1 413 Commission, 789; Co. v. Industrial Ill. E. 303 135 N. Edge City Pierre, Perry 191; v. 59 D. S. 239 N. W. County Corp. Commission, Coal v. Industrial Ill.
E.N. 455. appears The fully evidence in the case to have devel- been
oped, especially light seeking testimony in in the cause compensation disability, an award judg- in which the ment (52 was reversed on account insufficient evidence S. W. (2d) 771). judgments Appeals of the Court of Civil of the trial court are therefore reversed and is here rendered in favor of in error.
Opinion adopted by Supreme May 12, Court 1937. Company
Permian
M.
Oil
A.
et al.
Smith
No. 6351.
Decided June
Rehearings
overruled April 7, 1937; May 17, 1937.
(73
564.)
W.,
Series,
S.
2d
490;
W.,
107 S.
2d Series,
*4
Coleman,
Seguin,
Starnes,
Dibrell, Sr.,
B.
of
Dibrell &
of
J.
Abilene,
Stockton,
Sayles,
Johnson,
Hart
John & Jack
of
of Fort
Coleman,
Woodward,
plaintiff in
for
error.
Critz &
plaintiff’s petition in
The
suit
former
between
contestants
line, having
boundary
statutory
of
try
trespass
been in
form
describing
title
the land
section
block numbers and
original grantee
name
well as
field
*5
said
land from the State
plaintiff
tract of
down to the
in that
by
regular
introduction in
suit followed
evidence of a
chain
plaintiff
of muniments
title down
in the later case.
Walters,
564;
Heirs,
v.
Bone v.
14 Texas
Barr
Gartz’s
4 Wheat
212,
(U. S.)
418 being pleadings in former suit issue under vital controversy in right possession the land in the title and by suit, ownership present of which was claimed both boundary suit, possible con- parties in the fact survey owned the defendant and one flict between plaintiff not make that case did and not claimed that suit 1052, Finks, 318, 42 boundary. 91 Texas W. Cox v. S. one of Blum, 551, Schley 1; 85 Texas 22 667. v. S. 43 W. S. W. though in the case at it were conceded Even position contention position inconsistent with the takes a bar boundary a take predecessor-defendant suit wherein of its against plaintiff, nothing judgment when it was rendered legal competent evidence the location here establishes ground is no it and and shows there conflict between estopped survey, plaintiff is nevertheless to estab- another inconsistency, none reason of such because such facts lish to, strangers privy herein are but are all defendants controversy plaintiff predecessor and those claim- between Durham, ing against Hussman v. 165 41 L. Ed. him. U. S. 489; Judgments, Vineyard, 664; 212 Freeman on v. S. W. Heard ed., 5th 961. right plaintiff’s to an question of instructed verdict
On royalty prior May 31, damages oil for waste of 1930. for 17; Smith, Texas v. Mas- v. S. W. Stevens Patrick terson, 39 S. 90 Texas W. Graves, Austin, Keeling DeGroat, A. and Black & F. H.
W. Duluth, Minn., Maxey, Holden & Holloman H. and Chas. Tulsa, Holden, Rogers, Okla., Gibbs, John all of Chas. H. 0. Lewis, Williams, Davenport, Harris, M. Gibbs & John Harris & Neill, Neill, Sedberry, Cornell, Robt. T. Smith & James J. W. Stovall, Hughes Hardeman, Angelo, R. D. B. G. all of San Phillips, Trammel, Pannill, Chizum, Price, Hiner Estes & & Burney Braley, Worth, Edioards, Thompson, Knight, all of Fort Dallas, Harris, Baker, Botts, Wharton, Baker & Andrews & Wharton, Baker, Whilden, Rex and R. H. G. Clarence Houston, all of Jackson, Stockton, Montague, of Fort Brian
W. C.
Mitchell, Thompson
Rio, Thompson,
Young,
Lyold
Del
&
L.
Louis, Missouri,
Adams, all of St.
defendants
error.
among
parties,
A
another suit
other
did not
a muniment of
plaintiff,
constitute
favor of
nor
link
title,
properly
its
and was
chain
therefore
excluded. Bone
Walters,
564;
State,
172;
14 Texas
Blaffer v.
(2d)
31 S. W.
LeBow,
Ellis v.
Texas
419 predeces- plaintiff’s in a former suit wherein against plaintiff, nothing judgment in title took a take sor legal therein, all and together petition and answer with the in plaintiff competent evidence offered and extrinsic trial, prima facie to are insufficient establish at on the case bar by it herein. right plaintiff land sued for in to recover the Douglas, 541; Dibrell, 81 Texas Texas v. v. 61 Goldman Nichols Linney Wood, 235; 66 22. 648, v. Texas 17 S. W. evidence, is introduced extrinsic evi-
aWhen it, face, vary if, on its is not admissible or contradict dence matter, if, upon inspection adjudicates of the a certain it adjudicated is uncertain to what itself as admissible to what was at issue and evidence is show extrinsic Burnley, 97; v. the decree. Cook Texas Hume v. decided Schintz, 429; 72, Hughes Driver, 36 S. 90 Texas W. Texas 175. Kimmel, Tulsa, Okla., L. filed as Walter brief amicus (cid:127)
curiae. Judge Leddy, Commission, opinion Mr. delivered the of the Court. statutory trespass is a action
This title for the recovery possession a tract of 407 acres of 103, Survey Railway land described as Block T. C. Com- County, Texas, pany damages growing Pecos and to recover wrongful appropriation out of the waste and gas produced royalty oil and royalty from such land. The on the oil amounted May 1, $431,067.15 The suit error, was instituted Permian Oil Company, Hickox, plaintiff, against remote vendee Mrs. surviving Smith, widow, M. A. independent sole devisee and husband, executrix the estate of her deceased first John Monroe, against husband, her Smith, second M. A. vendees, her immediate running pipe companies the oil and line survey. oil from such Mrs. Monroe died case, Smith before the trial of the and the administrator of estate her properly her heirs were sub- parties stituted as defendant.
Upon jury plaintiff a trial error, with by proper docu- mentary evidence, regular established a chain of title from the Monroe, of Texas vesting State down John in him title to Railway T. Company, Section Block C. and Section Company Block G. C. S. F. & Railroad County, in Pecos Texas. following
Plaintiff addi- error offered evidence the documentary tional evidence: original August petition
1. The filed Monroe on John *7 22, 1910, showing statutory try trespass action of 854, styled Monroe, plaintiff, in Cause No. vs. T. F. John Hickox, defendant, Texas, County, in the District of Pecos Court possession for the title and of three tracts of land situated in being county, 104, 194, all said of Section Block T. Rail- C. original grantee, way Company, part 103, of Section Block 194, original Railway Company, grantee, part T. C. and a of Survey 35, 194, original Ry. Company, Block G. & F. C. S. grantee. original petition first amended filed John Mon- February 28, 1911, statutory trespass
roe on form of 854, petition being title in said Cause No. said amended follows: County, Texas,
“In the District Court of Pecos Hickox, February A. D. Term 1911. John Monroe vs. T. F. No. 854. County:
“To the Honorable District Court of Said Texas, County, “Now comes John Monroe who resides Pecos plaintiff, having called and hereinafter leave of the Court first obtained, original been had and files this his first pe- amended Hickox, complains styled tition and ant, of T. F. hereinafter defend- action, plaintiff represents and for of cause to the Court day April 1909, that on or about the 21st fully of A. D. he was" law- possessed following and seized described land and County Pecos, premises, situated Texas, State hold- ing claiming simple, the same in fee to-wit:
1st. 104, 194, Ry. original “All of No. Block T. Section C. Co. grantee, County, in Pecos situated Texas.
2nd. 103, 194, Ry. original “All of No. Block T. Section C. Co. grantee County, Texas, situated Pecos described as follows: “Beginning at stake mound at the N.E. Cor. of Sur. 102, 194, Co., BIk. T. R. R. C. No. Cert. for the N.W. survey. this Cor. of
“Thence east 1900 vrs. to a stake and mound for the N.E. survey. of this Cor.
“Thence south 1209 vrs. to a stk. and md. for the S.E. Cor. survey. of this
“Thence West 1900 vrs. to a stk. and md. for the S.W. Cor. survey. this beginning. place And said “Thence North 1209 vrs. to the Ry. is described Section No. Co. Block No. T.C. follows, metes and to-wit: bounds as Survey “Beginning at the NTS. Cor. at a stake and mound survey. of this No. Block for the N.W. Cor. No. for N.E. Cor. and mound
“Thence East 1900 vrs. stake survey. for S.E. Cor. vrs. to stake and mound “Thence South 1209 survey; and mound of this 1900 vrs. to stake thence West place survey; 1209 vrs. to S. W. Cor. of this thence North beginning. aforesaid, day year unlaw- “That on last defendant fully premises ejected therefrom entered unlawfully, possession thereof to him the withholds from damage rental $2,000.00. That the reasonable his the sum of annum; per premises value of said land and is $100.00 *8 land, upon plaintiff’s said on the date that defendant entered plaintiff composed of wire nailed on had on same a wire fence date, ground, has, posts set in the that defendant since said broke, destroyed plaintiff’s fence and the tore down and said damage same, plaintiff’s posts composing and wire to the in the sum of $100.00.
“Therefore, plaintiff prays judgment in- court duly appear and asmuch as the defendant has been cited to petition, plaintiff answer this have for the title described, possession premises and said lands and above rents, issue, damages and that writ of restitution and for his suit, relief, special and costs of this and for such other and general, to, equity, justly in law and in that he entitled etc.” original defendant T. F. Hickox in
3. The answer of said cause, general denial, plea which and a of not consisted of guilty.
4. The in the minutes of rendered and entered County which district court of Pecos said Cause No. is as follows: County,
“In the District Court of Pecos Texas. Feb. Term 1911. F. No. 854. John Monroe vs. T. Hickox. day February “On the 28th A. D. came on regular heard the above numbered and in its entitled cause docket, thereupon plaintiff person order on the and came the by attorney, and attorney, person and also and came the defendant parties trial, ready and all no for and announced having jury being been demanded and all and issues law fact court, read, pleadings thereupon submitted were argument made, evidence introduced and and the of counsel hearing same, day court after March thereafter on the 4th open pronounced judgment A. D. court in favor of ordered, adjudged the defendant. It and decreed is therefore nothing by plaintiff the court John Monroe take against Hickox, his suit de- the defendant T. F. and that Hickox, go against day fendant T. F. without and recover hence plaintiff suit, John all execution Monroe costs of plaintiff will issue. To which of the court the John open gave excepted appeal Monroe in court notice of Supreme Appeals Court of the 4th Dis- Civil Judicial Texas, sitting Antonio, Texas, upon plain- trict of at San good given request being hereby tiff’s sixty days cause shown he is adjournment after of this court within which to file his statement of facts herein.” Hickox, proceedings
5. T. in- Probate the estate of F. cluding probated will, whereby his his he devised all of estate surviving wife, Hickox, appointed in- to his Leona A. her dependent executrix. regular
6. A chain of title from Mrs. Leona A. Hickox individually independent and as sole devisee executrix of husband, Hickox, the will and estate of her deceased T. F. error, Company. Permian Oil ground 7. Parol and written evidence the location on the Survey 103. produced Evidence of the amount and value of the oil *9 Survey 103, from royalty produced the land oil from said 1/8 September 16, 1927, 31, 1930, 586,- from May amounted to barrels, 014.25 of $431,067.15. the market value of Objections by were made of some the defendants pleadings 854, and in Monroe v. Hickox. Cause No. objections These were overruled at the time the evidence offered, and these records At were admitted in evidence. the testimony error, conclusion of by plaintiff the offered the error, defendants in exception pipe with line and of oil companies, presented pleadings motion to strike out the 854, Hickox, in Cause No. T. in- John Monroe v. F. by plaintiff troduced evidence in error as a link its chain title; of per- jury said defendants moved that also emptorily instructed to return a verdict in their favor. support In error, Jerry motion of defendants Monroe, al., they et pleadings strike out such evidence, papers tendered, trial considered and the court findings including of 854, Hickox, Monroe v. Cause No. findings and conclu- of fact fact and of law. Such conclusions sions of are as follows: law OF FACT. “FINDINGS composed sixty- Co., C-4, Ry. of is “1. Block C. F. G. & S. by surveys. they were all made field show that *10 Kuechler, Deputy year by
Hope made 1876 Jacob were Survey C-4, County F. Surveyor 4 Block C. & S. Pecos G. ground objects Railway Company on was located northwest corresponding to for northeast and the calls its found 424 71, relatively Hope’s map. Survey I.
corners & as shown on ground Railway N. G. on the was on Pecos River located relatively surveyor Hope, map with as shown W. T. mound; by call its Northwest corner is no marked stone there Survey point. in the field notes for a No. stone mound at this 51, ground relatively Railway I. as & N. on G. was located Hope’s map by shown on course and distance from North- aforesaid, Survey 71, west corner of and its lo- established as by cation verified call on a mesa. of its field notes road 3, Survey county No. Runnels land was located on school ground 61, by Surveys and course distance based on 71 and ground which were on All located as aforesaid. of these ground by surveyor Hope locations were on the made W. T. runnings and were actual based on as shown the red lines map. surveys delineated on his shown on balance map according surveyor Hope platted were him to their calls for course and distance on based his actual work ground lines, on the shown the red and with relation the aforesaid land marks. By beginning Survey 4, “5. at the Northeast corner of Block
C-4, ground, Railway Company, G. C. & S. F. as found on the running by locating thereby and veys course and sur- distance 104, surveys Railway;
103 and Texas Central two these adjoining immediately Survey 3, would lie south of Run- land, County surveys nels School and would not conflict with Railway. 34 and Texas Central By constructing Railway,
“6. Block C. F. G. & S. based on the Surveys surveys, ground for the calls river as located on the Railway Company,
34 and & G. C. S. F. Block adjoining immediately 194 would 3, Survey lie south of No. County Runnels School land and be in total with conflict surveys 103 104. Surveys being “7. by plain- 103 and sued for land tiff, junior surveys surveys are original “8. I footsteps am unable follow the sur- establishing Ry. Block S. F. G. C. & either veyor original any locations of of the sections or in the location surveys, of the corrected and I true am unable to ascertain the original surveyor locating intention of the this block ground. “9. I testimony am unable from the evidence to ascertain ground 103, 104, the true Surveys location on the Nos. and 35 above referred to. origi- I Railway “10. find that Block C. & S. F. G.
nally survey. located an office *11 (cid:127) I Block Z and “11. find of tie to the calls block 194 to repugant surveys are to each its calls tie on to the fiver inconsistent, which of I am determine other and and unable to surveyor. regarded the should as a mistake of these calls legal plaintiff I find find holder “12. the is the owner Survey 103, simple fee Rail- title to No. Texas Central the way survey a he holds No. under contract of Texas, purchase from the in accordance with the school State of occupancy proof land laws and that has made his thereon he good standing. by law, required and that his said sale is in possession Defendant holder and “13. is the entitled Survey purchase No. under a contract of from the State Texas, laws, accordance with school land and his sale good standing. inis map Hope hereby The said is
“14. referred made part hereof.”
“CONCLUSIONS OF LAW. proof upon “1. The burden of to establish the upon ground, location the two of land tracts sued for show that surveys and to there is no conflict said between surveys surveys numbers 34 and the said numbers 34 and 35 being surveys. senior presumed surveyor “2. It is the work of an official ground,
actually done on the but the amount of work he certified having given time, done within a the character of the work notes, for the field and the as called lack of evidence found ground, discrepances in objects distances on the betwen called like, may be sufficient to presumption. for rebut said upon there are two theories survey “3. Where which ground any fixed to the of its constructed, is not calls can be theory shows a conflict between a junior and one senior and a theory survey, and the other shows no conflict between them evidence, presumptions law, aided and the furnishes following original footsteps surveyor no method arriving purpose original at intent and or for sur- veyor, presumption law will be resolved favor of the conflict, survey junior there is the owner of the senior being plaintiff. survey Having surveys fact that the found as a location num-
“4. located and 103 and cannot be bers 34 testimony evidence there ground and that total on certain and no them based calls conflict between conflict theories are irreconcilable and the other calls which based on testimony, I theory from the conclude unascertainable true naught by and that this suit plaintiff should take that the costs herein.” recover his should defendant the case to requested to submit court Plaintiff error issues, request There- special was overruled. jury *12 peremptorily jury to the to instruct upon the court it moved against pipe oil and liné com- favor the in its render a verdict also overruled. panies; motion was Monroe, Jerry et the motion of sustained trial court The judgment pleadings al., the evidence and struck Hickox, 854, T. F. Monroe v. to which John No. in Cause duly excepted. ruling then on court action defendants, motion, and of his own instructed of certain motion error, for defendants in a verdict jury to return accordingly judgment was rendered verdict instructed such against plaintiff in error. duly prosecuted its writ of error to the in error
Plaintiff Appeals El Paso. This resulted an affirm- at in of Civil Court trial court. judgment of ance of ap- nature of the record in this case will The voluminous the writ of error filed in pear recital of fact from a nearly pages, 400 while the briefs of all consists this Court pages. 3000 more than parties total legal questions presented for deter- are a number There judgment question is whether the in Cause main mination. The Hickox, 854, constituted a valid muniment in Monroe No. title. plaintiff in error’s chain in seek to sustain the action of trial error
Defendants 854, excluding judgment in Cause Monroe v. No. court following grounds: Hickox, upon the n . light judgment proper said to construe It is findings and conclusions of law and so con- of fact when declared it deter- must be void because strued nothing. settles mines and - n . The plaintiff’s cause shows that suit record said boundary and that it was tried and determined as one of was by the court. such in said cause is void because when inter-
c. The findings light pleadings and the of fact and preted in the any description is not sufficient law there conclusions being ground. permit identified and located on its land as will petition in first amended Cause No. d. Monroe’s support party, for either since insufficient 2, requirements of the essential subdivision to meet failed 2, 1925, is the same as subdivision R. S. Article Article R. S. which was in force at the time said judgment was rendered. successfully
e. In said Cause No. 854 the Hickox defendant maintained that patent the boundaries called for Survey Section 103 owned Monroe were in conflict with (the survey) by Hickox, senior owned and that inasmuch long parted Survey Hickox has claiming since with his title to those say under him should not now heard that Sec- part Survey tion 103 is not a
Defendants in error further assert Hickox, Cause No. Monroe v. was not admissible evi- against dence Davenport, defendants error H. B. Nellie M. husband, Hill, Viersen, Hill and J. R. Hapgood, Sam K. K. N. Pickrell, Frank Benjamin Gutman, T. Max Gutman and J. A. Chapman, Company, Metropolitan Peerless Oil & Royalty Gas Corporation, Davis, Parten, G. S. J. R. Employees Marland Royalty Company, Royalty Company Empire Southland *13 Company following Gas & Fuel for the reasons: judgment 1. Because said was not recorded in the office of county County, Texas, clerk Pecos required by as Article 6638, 1925, R. prior S. Article R. S. to the time the above named purchased defendants in error their mineral interest and mineral estate from Mrs. M. A. Smith and her husband. entry judgment
2. The aof in the minutes of the District County Court of Pecos should not be construed to constitute a recording judgment of such county the office of the clerk as required by the above named articles. county
3. The fact that the offices of the and district clerk person are held the same does not requirement affect the judgment by that the failure to record a which the title to land county is recovered in the office of the judg- clerk render such support any right ment inadmissible evidence in claimed by virtue thereof. upon plaintiff 4. The burden rested in error to show predicate as a for the introduction of said that defendants in error named before had either actual or construc- knowledge tive they said and that were not bona purchasers fide for value. thoroughly
1 The doctrine has by repeated been settled de- cisions of the courts of this State that a in an action try trespass plaintiff nothing title take his suit adjudication is an the title to the land involved is in the
428 equally
defendant and such a as effective for that vesting purpose expressly as one title in the defendant. French Olive, 568; Texas Swasey, (Sup.) v. 67 3 S. W. Wilson v. 48; Winter, 427; Hoodless v. S. W. Texas 116 S. W. Village Co., (Com. 122; App.) Houston Oil Co. v. Mills 241 S. W. Hardy, (2d) 967; Land, Stark v. 704; 29 S. W. Dunn v. 193 S. W. Crafts, 44; Lewis, McAllen v. 139 S. W. Drummond v. 268; Runbe, 287; Bomar Taylor 157 S. W. v. 225 S. W. Mortgage Co., Belcher Loan & C. S. W. W. 403. principle application announced these cases is but an provision any of the statute to the judg- effect that final in an action to real ment recover estate shall be conclusive right possession to the title or established in such action against upon party recovered, whom it all claiming through him, persons arising or under title after the commencement of the action. Art. R. S. 1925. discussing judgment decreeing In the conclusive effect of a nothing trespass take in an action of title, speaking Justice for the Court Gaines, in the case of Olive, supra, French v. said: appellants failed to out-
“When make their case it was a appellee matter of no any concern whether could show They or not. were entitled forever conclusive appellants premises of all claim of controversy. This entry would have the effect of an form, been in the usual plaintiffs nothing by suit, take their etc. The additions removing quieting title, nothing cloud and defendants’ added * * * judgment. part Appellees the former have been adjudicated to which were entitled reason of *14 appellants’ failure to their establish title and no more.”
The same doctrine was announced in Winter, Hoodless v. supra, wherein the Court observed: plea guilty their
“Under of not the defendants could have any possession introduced in tending evidence their to defeat any plaintiffs item or link under which the claimed or under judgment held. A themselves in their favor under plea conclusively that would have against established their title persons claiming plaintiff the and all under them. In the action trespass judgment against title a rendered plain- tiff is as conclusive in favor of a pleads defendant who ‘not against guilty’ plaintiff as it is the defendant when the recovers under the same circumstances. The conclusive effect of such judgments is declared Art. 4811 of the Statutes,” Revised etc.
429 case,” Supreme says Court plaintiff, as in this “Where 49, to the Swasey, show title “fails to in v. 20 S. W. Wilson against difference, judgment land, when the it make no can in de- them, that, land is decreed plaintiff, as between general judg- nothing force of It to the fendant. adds suit,’ nothing by his ‘plaintiff take ment in such cases as between to be defendant title is declared 400, Rep. 568. Olive, Texas 3 S. W. French v. 67 and defendant. against plaintiff.” usual This is the effect of the appeals have opinions courts of civil Numerous Supreme Court the law followed this declaration of adopted opinions of the Commission present Court has Village Mills v. Appeals of Houston Oil Co. in the late cases reaffirming cited, rule an- Hardy, Co., and above Stark v. quoted. from which we have nounced cases in Cause 2 But defendants .in error insist light Hickox, 854, must construed No. Monroe v. findings in the court law filed and conclusions of of fact rendered, when so con- and that
in which such recovery appears was denied strued Monroe regular chain land, of his failure to establish not on account light testimony thereto, ad- of title but because Survey 103 and duced there was shown a conflict between being survey. Survey 34, It is not material the senior the latter ground its controversy upon court based the trial in this what put Monroe,’ by petition, his Hickox. favor of any failed to he 103. If for reason issue his to Section same, Hickox was entitled to establish estop and those conclusively Monroe effect which would claiming bringing subsequent for a action under him from any he at recovery title which claimed of the same land under 115; Allen, 103 Texas 128 S. W. time. Herman v. 427; Harris Winter, 80 Texas 16 S. Hoodless v. W. McKay, Bank, 269; Evans v. 224 S. W.
First National 97; McAninch, 680; 87 Texas 27 S. W. Freeman v. S. W. Votaw, App. Texas Land Co. v. Civ. York Texas New 585, & 42 S. 52 S. W. W. in issue placed Monroe the title to Section
3 Since only to exhibit rested him not No. the burden Cause establishing land of title evidence his chain to the court proof as involved, required also to offer sufficient but he was *15 seeking to officer of the land so that an to the actual location favor judgment in his possession a under enforce writ possession the the same and restore him to could locate being required which he had officer been ousted without such words, judicial to exercise In it was Monroe’s functions. other duty proof identifying to land furnish described as Section the might certainty 103 with such that determine whether the court possession Hickox had in fact the thereof. ousted him from rendering justified The court in effect was not the possession which would have been to take land from the Hickox, definitely land fixed unless the location of was said ground. the A thus failure to meet the of Monroe burden imposed posses- entitled Hickox in to remain undisturbed the by judgment sion of the did land claimed him. The rendered possession. not specifically provides disturb Hickox’ The statute conclusive, judgment that only such shall not as to the established, “right possession as to in the established principle such action.” This has often of law been declared Andrews, try trespass actions of to title. In the case of Jones v. 62 Texas the Court said: boundary by “If survey the lines of were not established jury correspond the evidence satisfaction of the so as to given description boundary with petition lines survey, plaintiff action, failed in his and the verdict ought defendants, in such case thus have for the been ought jury charged, to have not been for the can trespass recover in an ac- action title otherwise than cording description given for.” he of the land has sued
“In identifying prop- the absence of extrinsic evidence erty say proceedings,” described in tax foreclosure Co-Operative Irrigation Co., Court in Welles Arno v. 177 S. W. 985, “plaintiff property has failed to establish his title to the for which he There is sues. no such evidence and in the absence thereof, properly except no could have been rendered favor, peremptory defendant’s instruction that ef- given.” fect should have been urged findings
It proper is it that fact to consider the interpreting conclusions of law filed the trial court Hickox, Cause No. in order Monroe actually ascertain what was case. decided court In it connection is said con- that when the is so solely sidered, apparent question one involved was is, boundary, presented whether issue Survey Section 103 34, inwas conflict with land covered survey, admittedly equi- senior to which Hickox held table title. showing
4 A can contradicted *16 not in were in it was rendered raised in the case which issues incorporated by the statement of facts fact decided as shown Supreme in by our Court It was so held part as Swearingen Williams, of the record. App. 67 S. W. 28 Texas Civ. language: as indicated this really testimony court parol that
“The offered to show state- question did of title was inadmissible. not decide part of record ment of facts filed in that cause would be it been purpose appeal that had for the prosecuted, from judicata, it was extrinsic upon plea of ad this res parol.” evidence and no better than holding in of Freeman v. is the the case
To same effect McAninch, upon that facts which case cited. The heretofore strikingly similar to those involved was decided are so length opinion in quote that instant case that at from the we case: having juris- appears a court
“Where it record of matter, parties subject that an issue has diction over the made, long presented decided, so the decision so been then manner, held as it not in must be con- is set aside some lawful rights is parties same issue clusive again when the not presented; can in such cases extrinsic evidence record, showing an issue be necessarily received to contradict presented and de- in involved that cause was cided. tried had
“That was the court in which the former action jurisdiction parties subject to and matter involved over the controversy questioned. can not be was the issue involved that cause shown
“What the record? parties question dispute
“An issue between action, required and in the courts of this State presented by pleadings. proper plaintiff in his “The record the former action shows that alleged, pleadings that he was the owner of a tract of land described, defendants, right, therein, particularly without that, possession to have and that he entitled had taken was it restored to him. in con- tract of 134 acres now “It is conceded that 1/2
troversy part is a the land so claimed. ownership, plaintiff’s denied “It shows that the defendants intensify right possession; and to and controverted his themselves, right the manner and stated denial asserted this accrued. it was claimed that leading presented, “Thus were the and the issue issues title; may- one of and the fact that the determination of change depended boundary question have could not case; character of the vital issue for that was but fact, any question to be considered like fact in deter- other mining decided whether issue title to the land should be *17 party in favor of the or the other. by one pleadings un- “What the issues not left made were is by the certain record.
“The in- record of the former action shows that the court jury, parties controversy was structed the that the between the plaintiff’s pleadings; of one title to the land described Washington survey, had he shown title to the and defendants survey, they had shown title to the Allen after which were to plaintiff’s instructed petition determine whether land described in part Washington survey, awas and in the event found, they plaintiff. so for were-instructed to find question respective “The court decided the title to of surveys; only jury question submitted to the the controversy depended; of bound- ary, on which title to the then in land question this did not eliminate the to land of title sued for.
“Questions boundary subjects litigation are never the themselves, only right within but so become where some thought depend determination; title is to on their only and the fact question jury the court submitted does actually not leave uncertain the issue tried and determined in action, charge the former even if the considered ref- without parts erence to other of the record. court,
“The was: Tt is therefore considered plaintiff, Freeman, defendants, that the John D. recover of the McCray, J. F. premises McAninch and Daniel described bounded as follows:’ it land describes the as described in the petition, may and then declares that this writ for ‘He have his possession expended, and his costs in this for behalf which he have his execution.’ petition alleged plain-
“In writ of error defendants tiff had ‘recovered of and from said defendants the certain tract land sued for.’ light
“That record, of the entire was an unequivocal judicial determination that the title to the land described plaintiff, was in the and that he was entitled possession, its prove and the evidence offered to that such presented was not the ought issue and determined to have been excluded. elsewhere, State,
“There is no so far decision nor testimony known, as is of such sanctions the admission in the face of such a record.” Monroe, by petition,
In that he Cause No. 854 claimed his Survey was the owner of that he had ousted 103 and been possession prayed that his thereof Hickox. He possession title to the land re- and the thereof established guilty plea put stored him. Hickox’ in issue the title right right possession said land. title and With possession issue, court, trial, adjudged thus after proof Monroe had not introduced him sufficient entitle judgment against Hickox, accordingly to a was nothing rendered that ambiguity take suit. no his There is permit in this which would the introduc- actually tion extrinsic evidence to what decided. show judgment expressly adjudicates that Monroe had failed to establish title to the If land sued for. such were *18 findings court, contrary merely in fact trial it of the binding an erroneous from the of effect which Mon- through only roe could been have relieved the medium of an appeal.
The admission of extrinsic evidence to show what
issues
adjudicated
were
in
by
an action of this character was denied
Votaw,
the
in the case of New
Court
York & Texas Land Co. v.
“The court did not err in to admit in evidence the exceptions bill of filed in the of case the New York & Texas Co., Limited, against court, Land Votaw in the William Federal showing case, all the evidence adduced in on the trial nor refusing parol testimony by to admit appellant offered actually adjudicated what show issues were in that cause. There uncertainty were, is no about what the issues or what was adjudicated, clearly in that case. Those issues were made and sharply by pleadings respective drawn parties, no can entertained doubt be as to what those issues were nor adjudicated. question what was An dispute issue is a be- parties action, to an tween the courts of this State required presented by pleadings. petition it is to be The leading and answer in that case show that question pre- 434 title,
sented was one of and the fact determination depended boundary question of it could not have on a of change case; for that was the character issue of the of vital fact, considered, any fact, question be other of like determining land should whether the issue of title to the be party v. Mc- or other. Freeman decided favor one Aninch, competent to show 97. It is not Texas 27 S. W. by clearly evidence aliunde that the main issue made decided, testimony pleadings parties was not for such Rack- would which shows was. contradict Fowlkes, ley 77.” 89 Texas 36 S. W. Findings They judgment. part no of a court’s of fact are They purpose appeal. required
are of an to be made disclosing purpose appeal on the reasons serve upon useful judgment. In the trial its court based collateral showing they purpose proceeding can not be used for only judgment, as can as- an erroneous such proceeding. sailed in direct findings if the different result would be reached even No trial and conclusions law filed court should fact given judgment adjudicated The consideration. the issue findings pleadings. If the are presented fact con- contradictory be inconsistent with
sidered judgment, fact not render void and this would subject such circumstances it would to collateral attack. Under through judgment subject merely an to correction erroneous be appeal. subject is thus Mr. rule stated Freeman *19 1483, Judgments, (5th ed.) p. on wherein he states: his work “Findings contrary judgment are not conclusive to although hand, judgment, the other con- the matter found. On findings adjudicated.” trary as to the is conclusive matter 336, 862, Ruling Law, p. Sec. announces the Case Vol. respect this as follows: rule in findings inconsistency judgment and the between
“An jurisdiction subject by competent will not court of rendered attack.” judgment to collateral such p. lays Jurisprudence, down the Sec. rule Texas respect as follows: in this agreed,
“Jurisdiction, power it includes the determine wrongfully, rightfully can make no difference how either may be; jurisdiction if the court has decision erroneous parties subject of the con- matter its determination troversy is not void.” Hardy, by
The late A of case of Stark v. decided Section Appeals, (2d) the Commission of was an action 29 S. W. trespass entry judgment showed the no- title. The entry tation judgment “Plaintiffs take a nonsuit.” The court, however, adjudicated plain- the minutes of the nothing suit, go by tiffs take their and that the defendants day construing hence without and recover their In costs.
judgment
judgment entry
the Commission held that
could
judgment
not be used to contradict and render void the
ren-
passing
question
dered in the
In
case.
on the
the Court said:
though
“Even
it should
conceded that
the fact
recitals
judgment entry show,
contained in the
of themselves that
judgment,
they
court rendered an erroneous
still
do not show
judgment
is void.”
party
judgment
A
in whose favor a
has
rendered
been
can
binding
deprived
judgment by
not be
force
in-
of such
findings
dependent
by
by
filed
the trial court. As said
the Court
Goff,
in Sheffield v.
“A is bound not the of courts. complain him, He is not forced to of a decree that satisfies premises because he knows that it has resulted from not in- volved, proved not or not true.” nullifying
To hold judgment otherwise would result party’s in a favor because erroneous conclusions of the trial party court when the in whose favor was ren- powerless dered would be to have them set aside. He could appeal favor, sought from a in his and when he litigation subsequent obtain the benefit of the subject matter, might the same he find its effect limited completely by findings any or opportunity nullified which he was denied appellate
to have reviewed court. In this language Judge connection the in the case of Pleasants Colley, very apt. says: He S. W. there Word suit, “From this statement of the issues in the former judge conclusions of fact and law filed the trial and the rendered it is clear that the conclusion that Horace and his sister had no reason Word to understand that accepting conveyed the lands were to them their father *20 part settlement of their interest in their mother’s of the com- estate, munity they estopped by accepting and that were not asserting portion said lands from claim to their mother’s 436 estate, actually adjudication
said made was not material in said suit. These determined in order were not essential to be defendants, judgment enter into render did not judgment, part judgment nor It is the become a of the rendered. fact, a trial not the verdict or the conclusions filed estoppel, finding court and a which constitutes the of fact jury or a the basis or one court which does not become against grounds judgment rendered is not conclusive party either to the suit. ours.] [Italics Judgments, page “In 2 Black on the author states estoppel by judgment rule of follows: as “ estoppel judgment. It ‘The resides in the force of the finding jury rendered not the of the court or the verdict of litiga- parties subsequent in in an action which concludes the tion, thereon.’ but the entered County
“The fact that in the suit Cherokee bringing precluded defendants them from was favor of findings judge, that a and we can not believe review denying estopped by party findings in his favor from can be rendering said the decision of of the court or to the rendition of the not essential material which was judgment. Philipowski 607; Spencer, 63 Texas v. v. Sheffield 358; Manning Green, App. Goff, v. 56 Texas Civ. 65 Texas Michigan 151, 725; Bayer, Whitney 101 59 N. W. 121 S. W. 415; Parke, Company, Y. Cauhape v. 121 N. Davis & 186; Cyc. E. 1227-1228.” N. complain petition in that Monroe’s in error
Defendants to sustain the ren- 854 was insufficient Cause No. the field notes Hickox for the reason dered favor of merely patent those contained in the for are of the land sued not, description, from such located land could and that the ground. upon the given petition description in Monroe’s think the
7 We clearly identity par- proof as to the to admit sufficient description petition of the land land for. The ticular sued calls are for and mounds for corners. Such for stakes calls says placed,” is once our objects. a stake Su- “Where artificial Matthews, 101 Texas Thatcher v. S. W. preme Court conclusively if marked nat- as the corner Owing “it fixes may it be removed objects. fact ural but, proof; obliterated, difficult of if be more its location certainty the same as where the corner with it fixes proved, permanent object. by a is marked
« [*] $ [*]
437 “The Appeals Court of Civil seem to have treated the case 13,400 as if mentioning the call had a been corner without case, ruling stake. If such probably had been the their would sound; have been object, but stake is an artificial and its disregarded. mention nally place origi- can not be If the where it was established, located can be the call for distance should yield to it.” principle of law laid down the above case was fol-
lowed in Institute, Gieseke, the case of Rice Wm. etc. v. 154 S. W. it which was held that a call for distance must yield stake, though to a call for a even it could not be found if there proper was evidence offered as to its In location. dis- cussing question the Court said: Matthews,
“In Thatcher v. 101 Texas 105 S. W. definitely (a) decided: In case of conflict a call distance, object artificial will control course and (b) A stake object; is an place artificial and if the originally where it was located can be established the call yield for distance should to it.
“The at stake the southwest corner and the stake and mound corner, at its northwest as called for in the field notes of the found; Bunker could not ample there is evidence to support finding 1,849 were located varas west of Brock, and, authority quoted, under the being such location yield established the call for distance must to it.” description petition A in the of an trespass action of very petition similar to Monroe’s was held sufficient to sustain a for the Rooney, in Porch v. 275 description S. W. 494. The held the Court to be sufficient was as follows: acres out of the S.E. acres, end of the be- “58-7/10 229-7/10
ginning at a stake marked in the South corner of the E.W. survey Thomas on the league; North line of Warren D. C. Hall degrees thence 45 “south west 858 vrs. to the east corner of survey, Thomas Greene stake North marked W. D. C. league; along Hall thence north 45 west boundary the north league line of Thomas G. Green one-third to a stk and marked vrs.; 1505 thence north 45 east McDougal with the south line G. survey 858 vrs. to the west corner of survey W. E. Thomas stake, prairie; degrees and marked in the thence south east, line, place Thomas begin- with said ning Greene vrs. to the containing 228.7 acres.” petition if 8 Even Monroe’s Cause No. 854 were deficient out, respect pointed subject in the matter embraced in the hence, court; petition jurisdiction was within the attack. would be immune from collateral Juris, by Corpus subject Vol. is announced The rule on this p. as follows: collaterally impeached on account “A can amendable, any pleadings even which are defects *22 general though pleadings on demurrer. Thus such are bad showing by impugned that validity not of a can be chosen, wrong complaint or that did a form of action was action, a cause of if it sufficient constitute not state facts challenge matter to the attention of the court contained sufficient to its merits.” as 797, 94, says: author, 15, further Sec. Volume
The same filing by particular acquired action is of a “Jurisdiction general to within the class the case pleadings which show jurisdiction to hear and determine the court has which cases complaint shows is sufficient to petition or this and give although respects.” it is defective in other jurisdiction, 204, 838, Perry, App. Texas 35 v. 13 Civ. S. In Moore W. thus stated: the rule is ' court, the final act of the and where a “The matter, subject judg- and renders a jurisdiction of has court will.depend regularity validity on the ment, neither of the its sufficiency pleadings.” of the process, nor the McAfee, 646, in 214 S. W. which a writ In Conner Court, by Supreme the Court said: denied error was note to the case of Jarrell v. Laurel Coal an exhaustive “In (316), question L. A. 1916E Co., reported in R. Land& insufficiency upon a because of the attack a collateral discussed, fully and a multitude of pleadings is cases cited, holding every in the Union is State practically sustained, that, though even can not be attack such demanded, grant than more relief it is not judgment should void.” Ward, Supreme
Finally, Court Cleveland v. 116 Texas our down the same laid rule. Chief Justice 285 S. W. subject, on this speaking for the Court said: Cureton, original question peti- as to whether the “Regardless of the against respects demurrer, subject in all its sufficient tion was jurisdiction of the district court of John- was within matter filing court, by petition, acquired County, son the suit.” jurisdiction of Giving findings of fact the fullest consideration by we
conclusions of law made the trial court Cause No. boundary. say solely presented one of can not that the issue was equitable title to 34. Monroe in his Hickox owned Section right possession petition asserted a to the title of Section boundary. presented simply thus not one 103. The issue by Supreme it a similar state of facts was determined our Under Finks, Court, ques- 91 Texas that the Cox v. S. W. purely boundary. case, one of In tion involved was Hickox, appeared of Monroe v. in the- case there were grants, by party one owned one two the suit the other It was decided such a case did not claimed both. consti- boundary meaning case within the In tute passing statute. question the Court observed: may question boundary grants, as to “There two one party to the suit and the owned one other claimed both. survey controversy the title to the A suit one to boundary question as to the between involve that and the *23 opinion boundary not in our other. This would case within meaning (Italics ours.) statute.” in the contention is no merit 10 There defendants in error in Hickox, Cause No. that Monroe v. against strangers them
not admissible because were thereto. plaintiff nothing in cause that The said take operated title John whatever Monroe had in to divest said land at that time, in to vest the same Hickox. This consti- title, in a muniment Hickox’ tuted was available for the establishing holding title to purpose Hickox, those under strangers. against Roberts, the claim McCamant even 66 260; 260, 1 Owens v. New York Texas S. W. & Texas Land 15, Encyc. Digest Co., 601; 45 Vol. Reports, S. W. Texas p. by earnestly insisted defendants in plaintiff
It error that properly recovery denied a in error was the land sued for Hickox, appears predecessor title, that its it in because suc- cessfully patent by in Cause 854 that the maintained the State by Survey void reason of the 103 was fact the land patent conflicted in such with the land described described in surveys recognized and that 34 under a well senior in title of principle of the successor Hickox law should not be position maintain the inconsistent in permitted to this case ground Survey conflict between there is no 103 surveys and 35. and the senior judicial estoppel which doctrine of thus invoked is one operates prevent successfully interposed in party has who ground shifting proceeding
defense to an his action or taking position proceeding which is in another so action disprove necessarily inconsistent with its truth. his former defense legal question proposition We do not soundness however, unable, thus asserted in defendants error. We are agree Hickox, with assumption that the record shows in 854, successfully position Cause No. maintained the Survey Surveys 103 was void senior because conflict with 34 and perceive upon theory 35. It is difficult to what it can be contended that the trial court in No. 854 determined Cause Survey Survey existence of a conflict between when expressly that court found that it was from the testi- “unable mony ground and evidence to ascertain the true on the location Surveys 103, 104, 34, impossible and 35.” It was for the surveys trial court to have found a conflict between these unless there was sufficient evidence from which could establish and definitely surveys upon fix the location of each of such ground. It is that the obvious favor of Hickox was finding by not the result of a the trial court aof conflict be- Survey Survey solely 103 and tween because of the discharge imposed upon failure of Monroe to the burden him proof sufficient law adduce trial court ground definitely position could locate land Hickox, for. It is therefore clear sued Cause No. successfully position maintain' of a did conflict be- Surveys Survey 103 and 34 and 35. tween this, assumption made Aside from defendants position assumed an inconsistent that Hickox with that error justified by error this case is not taken *24 appearing in the record. Defendants in anything error claim assumption position as to Hickox’ in Cause 854 that their No. following by by state of facts shown is sustained record, Survey First, title to that 103 could viz.: not have adjudicated limitation title Hickox’ favor because been Second, plea of limitation. because said no cause he made title, presumed and it will of filed abstracts that there were statutory demand; ato filed in obedience they were Survey regular by filed Monroe shows a of title abstract original patentee Monroe, conveyances from the of chain by only merely filed of title Hickox is an abstract and that the Survey by Texas to him of of 34. sale State award and papers premises it is assumed no title not From these title, were or could have been of- included abstract determining fered in evidence or considered the case. Based facts, upon assumption state of is made that Hickox position upon took the fully the trial of Cause No. and success- it, maintained the land described in the field notes actually Survey of Survey 103 was included within the boundaries of inspection any An the record does not reveal de- filing by party mand either for the of an other abstract party title in Cause 854. It No. does show either purported to that upon filed file an suit or abstract of title expected rely which he the trial of the case. What mistakenly merely is giving assumed to be an abstract of title is statutory required predicate notice as a copies parties introduction certified instruments which the upon desired to introduce the trial of this cause. given by
The notice Monroe was addressed to Hickox his or attorneys record, and reads follows: as hereby
“You will take notice that I dis- have filed with the County, Texas, trict clerk Pecos to use as evidence in the styled following above and numbered papers, cause the title (Then viz.:” follows a recital of various instruments consti- tuting title.) Monroe’s chain of given by The notice Hickox is addressed to Monroe his attorney of record and is as follows: hereby
“You are notified that I have filed with the district County, Texas, clerk of Pecos to be used as evidence in the styled following above papers: numbered cause copy application purchase Certified of Hickox to Section Ry. 640, together Block appli- G. C. & S. F. Co. for with cation attached and endorsement and award the Commis- sioner Land of the General Office made thereon.” apparent inspection
It an quoted of the above docu- parties party purporting ments filed that neither response statutory file an abstract of title to a demand By giving right party therefor. the above of neither notice offering legitimate any was foreclosed from evi- admissible controversy, dence to title to the land in establish would have filed, demand, they statutory been the had to a case obedience of the title relied. abstract Hickox, against if it Even be conceded the suit filed Monroe, successfully him maintained posi- assumed Surveys 34, still, tion that there was a conflict between 103 and *25 suit, party since in error was not to a it would defending acquired prevented under Hickox not be from the title any ground. upon available position party in a a
It is well established that assumed judicial proceeding estop him, privies will in a former not estate, taking proceed- position new an inconsistent in a from ing parties. The unless the new is between the same action Juris, Corpus 21, p. is thus the author of Vol. rule stated 1229, Sec. 233: estoppel, position
“In order work the assumed in the an successfully pro- In a former trial must have maintained. been ceeding terminating clearly position in must be a same, inconsistent, parties ques- be the must and the same tions must be involved.”
Ruling Law, 702, gives p. this statement Case Vol. the rule: general party
“It laid down a rule that a will not be judicial proceeding posi- subsequent allowed in a to take a judi- position awith taken him in a former tion conflict position prejudice proceeding, is cial where the later party, parties question are the the adverse and the * * But, termini, underlying prop- ex vi rule same *. these apply to suits in which the issues and ositions does not same, position precisely parties nor to are not the not proceedings.” prior taken on the Vineyard, 212 rule as above de-
In Heard v.
S.
W.
Appeals,
applied by
as is revealed
the Commission
fined
following
opinion:
quotation Vineyards,
proposition that
hav-
“Defendants stress
ing
App.
case
Texas
recovered in the Brundrett
Civ.
[17
Wells,
theory
Sr.,
that James B.
If Hickox took the assumed in No. Cause thereby obtained the effect of which was to vest him, Survey infirmity the title to 103 in then there was no in Presumptively, judgment his in title. the final his favor was true, why correct. Since this is no valid reason exists he could good convey prem- to another a and indefeasible title to-the seeking ises. It is true that if himself were to "Hickox maintain suit, asserting any estopped position this he would be from inconsistent with that which he maintained when he obtained But, judgment proceeding. plaintiff in former in this regard position case has taken no inconsistent in to the title bought paid upon to this land. It has sumption for the land as- judgment proceeding operated in that the said former title out of Monroe and in divest vest the same Hickox. It asserting any therefore can not be barred defense its urge, though may predecessor it see fit to even title its in may entirely position have maintained an different in ac- quiring right urge any in the same. Plaintiff error’s defense abridged of the title to said land that it see fit can not be position predecessor because of a a taken in title in a suit party to which was not a and for which it is in no wise responsible. appears judgment 12 It in rendered Cause No. Hickox,
Monroe v. court, in was recorded the minutes of the district any but the same was not recorded in record re- quired kept by county judg- clerk. At the time- County 8,000 ment was rendered Pecos had less than inhabi- provisions Constitution, single tants. Under of our clerk county required was to serve as both district and clerk. of the defendants error claim to
Certain be bona fide purchasers for value without notice of the rendition of the No. 854. It is their Cause contention that under 1925) (Art. R. the statute S. error was not said in evidence entitled to introduce until it had showing compliance proof requiring with the statute adduced county the same to recorded the office of the clerk.
Plaintiff in error insists that where there is but one office officer, a record of and one the minutes compliance of the district court would be substantial with agree are the terms of the statute. We unable to with this con- officer, required was one he was tention. there While discharge county duties incumbent district and both necessarily required keep
clerks. As such officer he was two records, kept required different sets of one which the law to be kept required district clerks and the other which was to be by county question not recorded clerks. The county required in the office of the unless clerk as the statutes incorporated kept by it was in some record this officer performance county imposed upon of the duties clerk. *27 registra- question 13 It has held in been that the statute is a purpose tion statute and that giving its enactment was for the intending purchasers. Farquhar, notice to Russell 55 v. 355; Lindley, 189, Texas Henderson v. 75 Texas 12 S. 979.W. true, upon in Since the burden rested the defendants error, purchasers under their claim of bona tide without notice 854, of the rendition of the in No. to show that Cause notice, acquired the land for and without either value constructive, judgment. actual or of the rendition of said tending 14 Plaintiff in error introduced evidence to show that 1915, possession Hickox was in actual of this land from 1911 to through tenant, possession and that such continued his I. G. Yates, from the latter date until the time he was ousted from possession by the in error. If defendants it should be found possession another trial that Hickox was actual of said land, person either in tenant at the time defendants rights land, acquired possession error their in said such would sufficient to constitute notice them constructive to of Hickox’ Edwards, 449; claim denning land. to said Watkins v. 23 Texas Glen- Bell, 324; Flannagan v. 70 Texas 8 S. W. v. Pear- son, 304; Robertson, 99 61 Texas Cobb Texas 86 S. W. 1148; Durnell, Forrest v. 86 Texas 87 S. 26 S. W. W. 481; Hebert, (2d) Boffa v. 42 S. W. 624.
15 At the time of John Monroe’s death the Survey have held title in 103 in Hickox had we vested not been county County. in the office clerk of Pecos At recorded apparent said time Monroe therefore the record owner of duly probated county this land. He left a will which was the land was situated. The will devised all of the estate where possessed widow, he died seized to his and named of which independent qualifying executrix. After as such she filed her as inventory complete property purported to be a of all the what belonging inventory This did not to said estate. list Sections which was involved in said to Cause No. Survey that the plaintiff in error’s view omission of
It is Monroe, inventory prepared and filed Mrs. inde- pendent Monroe, executrix of the estate of John was sufficient put purchasers upon inquiry to from her as to whether title to survey passed prior omitted had out of John Monroe his death. are not accord with this We view. We do not think purchasers required from Mrs. Monroe were to examine inventory probate filed in connection with of Monroe’s apparent will. The record showed the title to the land involved purported Monroe at the time of his death. The will to vest property all the title to owned Monroe at the time of his death in his widow. The record of this will was sufficient complete apparent title to the land involved in Mrs. Monroe; hence, necessary intending was not pur- for an investigate chaser further than to necessary examine the link perfect apparent title Mrs. Monroe. Plaintiff in error insists Monroe did not die seized and land, possessed of this pass therefore it did not under his will to his widow. course Of this is true. If the real title had will, passed in error would have no claim to this land. quired far purchaser So as the record to which a was re- however, look, apparent legal title was vested in *28 by provisions Monroe’s widow of his will. conclude, however,
16 We the issue as to whether purchasers defendants in error were bona fide for value of the apparent legal title of the land involved without notice of the fact title to said land had- been divested out of Monroe by in vested Hickox in Cause No. it would permissible plaintiffs be for in any error to show that of the they in defendants error at acquired time through Mrs. had Smith actual notice of the Survey omission of inventory by filed Mrs. Monroe. Such fact would be might properly a circumstance which by jury considered passing upon question in as to whether defendants in error put upon inquiry were as to whether Monroe in fact owned said land at the time of his death. presents assignments Plaintiff in error a number of com-
plaining of the admission and by exclusion of evidence the trial assignments court. To discuss these prolong seriatim would already unduly lengthy opinion. say We deem it sufficient to assignments given these have been careful consideration and the conclusion reached that the trial court committed no rulings complained error in the of. striking Because of the errors of the trial court in out the admitting findings Cause No. of fact law, giving peremptory and conclusions instruc-
tion, must reversed. judgments of the Court therefore recommend We Appeals trial reversed and and of the court be both Civil remanded another trial. cause
Adopted Supreme Court June FOR ON MOTIONS REHEARING. Special opinion Fouts delivered the
Mr. Justice Court. opinion (supra) appearing
This case was decided rehearing duly (2d) were filed. Before 490. Motions for 73 S. W. personnel was taken on these motions the of the Court was action Sharp succeeding Judge Greenwood, changed, Associate Justice Judge Pierson, replacing deceased. and Associate Justice Critz Judge resulting disqualification, ap- his certified Critz Houston, Texas, Special pointment Fouts, Elwood Justice, duly qualified. as thus who The Court com- Associate argument on the motions due to the fact posed requested oral argument heard as a alone member Justice Cureton Chief originally disposed of. The the case when Court rehearing opinion on the motions for questions decided disposed only portion of those discussed embrace is overruled where it opinion which does not con- the former here announced as thus modified stands law as form to the approved. designated parties here as will be were the trial Briefly are: the facts summarized
court. 21, 1928, by Company Permian This suit was filed June Oil seeking defendants, against, to recover the land described produced therefrom. of the oil Plaintiff and the value estab- *29 and then Monroe offered in evidence the title John lished pleadings judgment rendered Cause No. John Mon- Hickox, County, in the district court of Pecos T. F. roe v. August 22, 1910, disposed filed was of That suit 4, Texas. nothing against 1911, by judgment take entered March statutory petition there was in form of tres- plaintiff. The the pass describing 103 and Sections Texas title .Central plea for. The answer sued was a Railway, the land of not as Apparently involves said present suit Section guilty. The under claim title John Monroe. There the defendants some findings the court’s case the former fact and filed Plaintiff, Hickox, which holds under law. asserts conclusions judgment. virtue of the former Monroe’s has it It is evident from the record that some of the defendants herein acquired claim to have their several titles at a time when that judgment recorded, properly required was not statute. proof Plaintiff made no that such defendants were not bona purchasers bought they fide for value or that with notice. The judgment supporting pleadings v. Hickox and its Monroe objection was admitted in evidence over the of defendants on ground proof the ground that such was not made and on the further judgment was either void on the face of the properly dispose or if record else construed did not of the issue objections of title. Defendants renewed their in a motion to evidence, they prevailed strike the in which after them- evidence, objection selves offered in over the plaintiff, of the judgment the entire record out of which emanated the of Monroe peremptory v. Hickox. Their motion resulted in a instruction against plaintiff. Objection was made findings that the court’s of fact and conclusions of law Monroe v. Hickox were not part judgment agree of the record. do not We with this con- tention. phrases “judgment roll,” “judgment record” and “face
of the record” are terms interchangeably used in our decisions. They grow out of the common law where the earliest cases preserved officer of courts of record parchment on a scroll of agreed record of the issues which the litigate. contestants pleadings At that time their were oral. This roll later embraced pleadings, charge the written verdict, jury, the court’s jury’s final court’s and other similar matters constituting part proceedings of the of the trial. One of the purposes of proper the roll was to enable application the. judicata, being the rule preserved of res ad among record other reasons in order to show what issues had disposed been parties thereby. to be bound inquiry When as to what constitutes this record arises it must be remembered that ordinarily purposes inquiry one of the properly is to apply judicata. Every rule part of res ad pro- the trial ceedings preserved in courts of record under direction of the purposes court for the of its record constitutes the roll. offered
The defendants the record of the former case for establishing purpose either that entered record, void, was void on the if face of or then construed light actually disposed roll only one issue, boundary, therefore, they contend, that of did not operate title; as a muniment of constituted conclusive *30 was that Sections the sole issue determined
evidence parties privies, and either could and as their between ground else were total conflict with on the not be located Ry. and surveys F. plaintiff, Block 34 and G. C. & S. Co. senior they the successor contend because Hickox, estopped maintain that is to now Section title of ground free of conflict. These contentions on the can be located urged by again strongly the defendants in their motion are rehearing. which were raised in the of the doubts Because argument that these contentions were mind of the Court sight had lost of in supported by law which been fundamental adhering precedent, narrowly we have re-examined the too involved. whole field of law judicata public policy founded in principle of res ad
18 The Fundamentally English jurisprudence. pur- its as old as and is litigation; by putting expedite justice an end to pose is to sanctity judgments preserve courts to making attack. has from collateral Once court them immune an it of decision on issue over which its functions exercised final, parties that decision becomes jurisdiction, and has escape binding privies can not its effect. Lack- their thereto and anchorage finality judicial system ing would be little a rule of fiat. more than application the rule finds its in two
It has been said issuing having jurisdiction. judgments out of courts classes of case, where in the first out is encountered of which class One issues, judgment in the second suit judgment where the same, bar, parties are the the cause of action is offered same, same, capacity parties in which the is the act is the things disposed judg- of are the same. the res or Such general unambiguous, rule is if treated as an absolute ment theory cause of action on of the same to retrial bar merged judgment. type A of this it has been inquiry usually permits into the balance of no of the record emanates, except in the case it of certain well from which recognized exceptions. ambiguous such a Where necessary, roll, evidence, if extrinsic is ad- the missible, only to aid in its not to contradict type parties is encountered other where the construction. relitigate subsequent suit seek issue which was dis- to a in a former suit to which were posed final although of action have the cause involved other parties, parties has been said latter instance In issues. again estopped disposed such'issue are privies their the entire judgment and record in the first case by the former *31 or not in determine whether is admissible in evidence order to actually disposed in the second case was the issue involved ambiguity. first, question to the without reference separate completely of fact do not so The cases as a matter sharply defined classifications themselves into two such other, explanation graduate and hence the from the one into the general conflicting very by much for the use courts of language. purpose in mind that It must be borne justice prevent the failure as the law remains constant to parties permitting the same the retrial between result of privies or of an issue which has their of a cause of action been finally disposed of. judgment No. 854 unless
19 The
Cause
affected
ambi-
leading
sought by
guity
clearly
to the
defendants
construction
therefore,
necessary,
comes within the
classification. It is
first
ambiguous.
judgment
to ascertain whether that
is
This involves
problems.
ambiguous
a
find no
it
number of
reason to hold
We
necessary
simply
pleadings.
it
because
is
to refer to the
It is
description
the land
true the
and the nature of the cause of
appear
judgment. However,
do not
in the face of the
action
supplied by
plaintiff’s
this is
the direct
plead-
reference to the
ings appearing
judgment.
Judgments
in the face of the
are
construed like other written instruments. “That is certain which
certain,”
may
being certain,
unambiguous,
be made
judgment
writing
it
or a
description.
whether
By
of other
judgment
effectively
this reference
there
sup-
is as
plied
description
of the land and the
cause
action dis-
posed
though
of as
had recited
both
its face.
Judgments,
97;
Teal,
Freeman
691;
Sec. Martin v.
29 S. W.
Ruby
Valkenberg,
petition
v. Von
the making judgments construing cases, the former statute are also from which appeals, in of civil boundary final courts in cases boundary case in a might of action that the cause inferred it be in try that trespass title differs from to form of in the usual reviewing these cases try trespass title cases. to Without other undoubtedly by the they influenced may were said that it be construing of the statute. the effect We were that fact authority the unwilling accept class as of either to cases are in tres- of action are involved causes proposition that different brought statutory in form one of which try pass title suits to boundary on and the other of which turns on the fact of turns affecting evidentiary title. fact other some by familiar rule Cause No. 854 as tried the 21 Measured appeal judged as boundary it would have suit. On been was a there would have no suit the record shows been such because boundary Expressions question from the of boundaries. but for indicating judgments to appeal be void because cases sufficient, actually description, apparently testimony shows ground, land on the to locate the can not insufficient be to be nullify judgment trespass to in attack invoked on collateral description on its face is try sufficient. Such title where to dealing voidable, void, judgments. But are with decisions Hickox, appeal the case of Monroe v. is not an of No. this judicata: judgment question is of res ad Does the here one dispose question of the title to the land in so in No. Cause privies thereby? parties their are bound Under present trespass try founded on our to decisions of Court made the contention now constitutes a title statutes collateral general judgment and under the on the rule must attack alone, pleadings judg- judged unless the ambiguity is limited ment because roll. ambiguity the claim of Aside from Cause No. not void because of description: it stands is insufficient 854 as petition description in the in that 7366, used case was sufficient requirements pointed of Article as was under out original opinion. boundary The fact on the trial controlling controversy keep was sole title does not title, disposed binding former parties privies. trespass try In and their to title determination through boundary suit outcome the fact of does plead disposed not alter the cause of action judg- In ment. Monroe v. Hickox the cause of action was the title recognized
to the land principles These described. conclusions follow from pointed opinion as is out the well reasoned McAninch, Freeman v. where decided that boundary brought trespass try title, in a although suit in form of boundary,
disposed of on the fact of nevertheless was judicata pleadings res ad of the issue title. There the were statutory trespass form of title. question dispute parties “An issue between the and, action, State, the courts of this required * * * presented proper pleadings.” “Thus were the is- leading presented, title; sues issue was one of and the depended fact the determination have on a boundary question change could not the character of the case, question fact, vital issue in the for that was but a *33 any determining be considered like other fact whether the issue of title to the land should be decided in favor of the one * * * party presented or by the other.” “The issue plead- ings, by and determined title; was one of * * * depended on the fact locality of true boundary surveys, change between the could not the character McAninch, 132, of that issue.” Freeman v. 87 Texas 27 S. W. 97. in Monroe v. Hickox is void unless con- necessary ambiguity made struction because of discloses some deficiency.
fatal Returning question ambiguity and the contention 854, the effect of the in Cause No. because it ambiguous, is claimed to be should be limited to the issue or n tried, actually by findings issues as disclosed of fact and law, plaintiff conclusions of estopped and the further contention that is claiming while benefits of that now to present ability a and a show total absence conflict to locate ground, may \yere original the land on the it be said these true, questions their answer would be more' difficult. It is as defendants, every pointed out some decision Olive, 67 Texas from French v. S. W. down to that original opinion by in this case announced Commis- actually Appeals, the issue It title itself was tried. sion directly announced true that has this nowhere Court properly trespass try was to title where the cause of action plaintiff limited to title itself nevertheless some issue less than nothing judgment and the defendant lost his title under take a gained many where it. It true that of the other states trespass try prevail, title statutes similar to our statutes statutory in Ar- provision to that embraced where the similar exists, general rule seems to be that the defend- lele 7391 gain nothing judgment vested ant in a take does not or become by presumption plaintiff’s with the title. On the trial he must entitling acquire plaintiff’s him to establish facts judgment. Supreme Indeed the United States Court virtue construing Kindred, 18 L. in Barrows v. 71 U. Ed. S. statute, our Article the Illinois commenting which resembles after courts, of construction absence State said: defeated, title and shows no is therefore
“Where easy perceive any how title can it is not be said to have been how, statute, under the established action the result right bring premises.” a new action for can affect his the same By losing plaintiff the rule thus announced a in a take nothing judgment bringing would not be foreclosed from affirmatively suit if second title itself were not established in reasoning every in the first suit. defendant Under such take nothing judgment trespass ambiguous title would be impossible operated it because would be know whether adjudication title, adjudication dismissal or as or an right of some rightly incident to title. Therefore the record could employed to limit it construe to the actual issue tried, nothing judgment and if the of the take equiva- effect dismissal, permit bringing that effect would lent to losing plaintiff. another suit *34 here confronted we are with But Article 7391 and its con- by this That struction Court. article reads: “Any any recovery final rendered in action for the right of real estate shall be conclusive as to pos- the title or of upon against in party session established such action the whom recovered, persons claiming all from, through it is by arising party, under such title after the commencement of such action.” Judge in When French v. Olive announced the rule Gaines nothing judgment take effect trespass try the in to to hold that the defendant title,
title was had the better his following opinion, it, long by this Court the line of decisions judg- necessarily and the operated Article 7391 to construe together rule to be: ment and in announced the effect reason, plaintiff any it be due when the whether failed outstanding party, survey, third title in a conflict with a senior himself, defend- left the or other title in the lack of possession premises; possession in and that such ant of the thereby in the imported title; and that title was established defendant. party the possession land to be
23 The
in
is considered
imports
contrary
proved.
possession
owner until the
is
His
March,
v.
he
As was said
Linthicum
holds
title thereto.
language
repeated
of this
the
In title right pos- to the that he has the title and entitled asserts guilty plea admits that he The defendant his session. possesses possession title. and asserts that he better has ordinary judgment remain is entered there can not When outstanding losing party opposing title. decree converged appeared on the trial which announces that facts winning rights party of both in the all combined plaintiff and defendant. parties pleadings Had in this case confined might locating boundary possibly a different we face
issue against de- asserted The cause of action which was case. try trespass title suit plaintiff fendant form, general Hickox, plead was the claim Monroe plea possession The defendant’s of the land described. title and plain- put possession in issue guilty his admitted of not pre- the defendant failed and of action. The tiff’s cause possession of and the the title In such an instance both vailed. judg- parties as between was established defendant satutory form of petition limited to the In this ment. State posses- title and always puts in issue both trespass issue, determine Any of facts of a number one sion. *35 but the plaintiff cause of action seeks remains the same. If the facts, to limit by special the issue to one of such he do so must pleading in appropriate doing By form. so he limit the portion boundary dispute, case to the of his land involved possession, or or to some other incident of title.
25,26 plainly appears It construction therefore under long by judgment established this Court the in Cause No. unambiguous. was present judg- Furthermore there was judgment ment and the roll took the no other feature which judgment general judgment out of the could not rule. The by being unambiguous contradicted record neither was anything by there interpreted explained toit or the record. validity properly roll was admitted to test only operated judg- this to show ment was not void on the face the record. the rule Neither judicata of res ad estoppel nor rule of can be invoked to escape this principles conclusive effect. unite to Instead these nullify establish this To result. hold otherwise would be meaning Court, long by of Article 7391 as construed long would overturn the line of decisions to effect that plaintiff strength must recover on the of his title and to own possession imports the effect that title. Thus it has come about recognized that the rule in this State is be that trespass plaintiff nothing by title that take virtue of operates his suit adjudges as a muniment title and effect parties that facts were found to exist which between the estab- including, land, just lished the defendant all the title though effectively voluntary conveyance, as passed as it had plaintiff such title as had.
Defendants properly also contend instructed the trial court jury plaintiff’s to find defendants at the close testimony because the in Cause No. 854 was not re- required corded De- Article 6638 Revised Statutes. Civil prove fendants contend the burden notice or lack consideration defendants before was admissible. Plaintiff on defend- contends burden was prove purchasers ants to themselves innocent without notice protection before could receive the statute. of that We think neither contention is correct. February 5,
Present reads as Article enacted follows:
“Every partition of land without an or decree made order court, every judgment of a decree which the title duly land is recovered shall be recorded in the office of
455 recorded, lie; county and until so clerk in which such land not received partition, decree shall such or right thereof.” any virtue support claimed evidence in is registration of deeds to The law of 1836 relative quite provided: similar rights regards the interest take
“No Deed shall effect duly proved and parties have been third until the same shall recording Act for the presented required this to the court as of land titles.” 1840, (at time February the same
This Act was amended enacted) unrecorded present to make 6638 so as Article was conveyances against subsequent purchasers who all void as bought and without notice. that had for value established unrecorded on the senior law of 1836 the burden was Under junior was not deed holder deed holder to establish that 1840 this purchaser the Act of an innocent for value. Under required junior holder was burden was shifted and the deed purchaser. that an show he was innocent Company,
The 100 Texas case of Kimball v. Houston Oil Judge Williams, opinion by the Act construed S. W. 99 affecting registration question in of deeds. junior proof, holder of volved was that of burden of gthat on the senior unrecorded deed the burden was contendin purchaser prove subsequent had knowl deed holder to edge that the prior held this contention to deed. The Court Construing language the Act of con correct. it, Judge nection with the Act of 1840 which amended Williams language: uses this think it is true that under either statute the burden
“We claiming against produce one an deed to evi- unrecorded show, bring protection; dence sufficient to himself within its language applies.” words, that its in other he is one whom recognizing Continuing elsewhere, the Act of while registration the un- making was a act and that the holder under .1836 deed in evidence senior deed could offer the recorded case, prima says: his facie he then out
“When, against (referring to unrecorded such a deed” produced subsequent deed), one from same “is senior least, valid, prima grantor, at apparently is it not facie shown right having party it is third claimant under conveyance, he prior an interest to be affected its and entitled to literally terms of statute within the not protection?” holding junior
He answered deed holder protection then within the of that statute and that the burden prove shifted to the holder under the unrecorded deed senior junior purchaser. deed holder was innocent statutes, deeds, applying The two the one the other to judgments, wording ap- are so similar in their as to make reasoning construing pear applies equal with force in by previous Article unless it is of this inhibited decisions concerning provided Court. The statute deeds no *37 rights parties. unrecorded deed could affect the third 1840, present 6638, concerning judgments, statute of Article provides rights that no can under an be established unrecorded judgment. right To undertake to under establish an unrecord- only person rights way ed deed would be the could affect parties right of third and to undertake to establish a under necessity adversely an unrecorded would affect rights parties, language third so that the statute each operates applies to announce same rule in the one instance to unrecorded deeds and in other to unrecorded judgments. plausibly
Here Company Kimball v. Houston Oil it is argued by plaintiff registration only 6638 Article designed protect statute to purchasers creditors and innocent properly interpreted and that the statute should be construed registration statutes, our as subsequent purchaser other place to the burden on the bought
to that he for value establish without It notice. is true this court a number of times has held registration quote this to be a act and we later from some of affecting those decisions. So had the Act deeds been registration to pointed held be a act as was out in Kimball v. Judge length Company, Houston quoted Oil where at Williams Crosby Huston, (referring from 1 Texas and then said Hemphill’s opinion case) to Chief Justice in that : “The proof Court therefore concluded that of the unrecorded instrument, record, might made; other than the be but also departed only held that the ‘letter of the statute will clearly “where the notice is proved so make fraudulent as to title of the other purchaser to take a party”.’ conveyance [*] * * We in regard prejudice this as a decision to the known question case, declaring in this law to be junior holder of a deed taken while the Act of 1836 was protection force is entitled to the his that act until claim is shown fraudulent.” Legislature If February 5, 1840, by on the statute cov-
ering judgments, place had intended sub- the burden bought sequent purchaser prove a valuable con- that he notice, protection sideration without before he could receive using lan- of Article it could have done so the same guage employed by day it amended the it on the same when registration deeds, affecting Act of under which placed junior amended act this on the deed holder. burden using language Evidently it intended to avoid this similar original affecting to that of the Act of 1836 deeds.
27 Article 6638 has construed been several times this Court registration to be precluding statute and therefore not a rule of evidence
proof just of an unrecorded rule as the concerning covering the Act of 1836 unrecorded deeds was an- Crosby nounced v. Huston. The unrecorded deed under the Act of 1836 was admissible enable the claimant- thereunder prima out facie make his case. But the introduction in purchaser subsequent conveyance evidence of a taken deed while the senior was off the record the burden then fell holder to on the unrecorded deed show notice or lack of con- part junior sideration on the deed holder. we
Such believe also rule under Article 6638. *38 Murray, 161, go Thornton v. 50 Texas seemed to even fur- ther and hold as defendants contend. It is there stated: * * * object provision,
“The evident of this pro- is not to in judgment hibit the introduction evidence of a decree or designated, circumstances, recorded, the under all class until registration only apply system to the judgment to such a decree, deny right party a or and to to the to so introduce it registration, in he evidence unless shows its parties or facts which it, general the provisions make as between and under the laws, registration registration.” of the admissible without Farquhar, in Russell v. 55 Also Texas it is said: “ * * * properly the statute require construed did not the registration judgment former of the to render it admissible subsequent partition suit for title and of the same land be- parties.” the same tween Lindley,
But in Henderson v. 75 Texas 12 S. W. Judge judgment demonstrated that the unrecorded was Gaines against against not alone those who had admissible notice but However, persons. all he did not construe the statute so as to away protection. only permitted take its He the introduction operated prima evidence of which to make out a unnecessary It for him facie case. was to comment on the bur- plaintiff proof fell on the when the defendant den judg- purchased evidence show he when the introduced record; appears the trial ment was off the court case proof on under placed the entire burden of the claimant have judgment. protection The comes the unrecorded statute opposing party acquired offers a title while to life when the doing brings By judgment party off the record. so that was protection of the statute and the himself within the burden prove under unrecorded then on claimant subsequent clearly as' to make it fraudulent notice so purchaser conveyance opposition to take to the known party. of the other Hickox,
28 The Cause No. Monroe v. (cid:127) improperly stricken evidence trial court. While proof plaintiff rested on the burden show that had notice of the defendants were not fide bona value, upon purchasers introduction of them evidence showing purchased from or under John Monroe at record, time when the was off the this burden had not sustained, motion to arisen when the strike evidence was against peremptory instruction and the was entered. not offered their title. defendants had Running through appeal this law suit find we for relief party of a from the mistakes to another suit or the errors of here, But such another trial court. relief could come is al- ways case, only expense rights at the many “vigilant those who have been careful.” The fact that now pre- record this case shows that Monroe could have diligent vailed in No. 854 if he been sufficiently his suit had only emphasize does not serves principles weaken but opinion. reaffirmed in this passes by party opportunity, his “When the law will Ewing McNairy, says:
aid him. In judge Ohio St. *39 ‘By refusing against parties the consequence to relieve their of neglect, vigilant own to make seeks them and careful. On any principle, action, other there would no end be to an and vigilance' end to all and prepara- there would care in its ” McAninch, supra. tion trial.’ Freeman v. and rehearing
The motions for are overruled.
Opinion April 7, delivered 1937. rehearing May 17, motion for
Second overruled 1937. FOOTNOTE (1) 28, original February on Monroe by John petition The first amended filed said 854; Cause No. in said 1911, in a form of statutory trespass being as follows:
amended petition A. D. 1911. Term County, Texas, February “In the Court of Pecos District Hickox, “John vs. Monroe T. F. No. 854. County: “To the District of Said Honorable Court hereinafter Texas, “Now John Monroe who resides in Pecos County, comes having this obtained, Court been and files called and leave of the first had plaintiff, original hereinafter Hickox, his first and of T. F. petition amended complains on of styled defendant, action, and for cause Court plaintiff represents of of D. day 1909, possessed or about the 21st A. he was seized and April lawfully following State and in of premises, County Pecos, described land situated holding claiming the Texas, of and same in to-wit: simple, fee “1st. grantee, original in 194, Ry. “All of Section No. Block T. Co. situated 104, C. Pecos Texas. County, “2nd. grantee original in “All of Block situated 103, 194, Ry. Section No. T. C. Co. as Pecos described follows: County, Texas, “Beginning 194, at a stake mound at No. Blk. 102, and the N.E. Cor. of Sur. 2302, B. R. for the N.W. this Co., survey. T.C. Cert. Cor. of survey. “Thence 1900 vrs. to a stake for Cor of this east and mound the N. E. to a stk. “Thence South 1209 vrs. and md. for the of this survey. S.E. Cor. “Thence 1900 vrs. to a stk. of West and md for cor. this survey. S.W. beginning, “Thence 1209 vrs. to the place 104, North said Section and No. C. Ry. Block No. T. Co. is described follows, metes and bounds to-wit: “Beginning aat stake mound at Survey and the N.E. Cor. of Block No. for survey. No. the N.W. Cor. of this “Thence East 1900 vrs. to stake and for mound N. of this survey. E. Cor. “Thence South 1209 vrs. to stake survey; and mound for S. Cor. of this E. thence West 1900 vrs. stake and mound for S. this thence survey; W. Cor. of beginning. place North 1209 vrs. “That on last day year and aforesaid, unlawfully defendant entered ejected premises and plaintiff therefrom and him unlawfully, withholds damage in possession thereof his of $2,000.00. sum That the reasonable rental value of said land and premises per that on the annum; date $100.00 upon plaintiff’s defendant entered said land, had on same a fence plaintiff wire ground, of wire nailed on set composed posts since that defendant has, tore down date, broke, destroyed said and and plaintiff’s said fence and the posts composing damage same, wire to the plaintiff’s in the sum of $100.00. “Therefore, court plaintiff prays inasmuch as the defend- duly has been cited to ant judgment and answer this have appear petition, plaintiff for the title and possession said lands described, and above premises damages issue, restitution and writ of and for rents, his and costs general, suit, and for such other relief, special and in law and that he equity justly to, entitled etc.” (2) rendered and entered in the court minutes the district Pecos County said Cause No. as follows: “In the District Court of Pecos County, Texas. Feb. Term “John Monroe vs. T. F. Hickox. No. 854. February A. day “On 28th D. on 1911, came to be heard the num- above regular entitled cause its bered and order on the docket, and came- the thereupon and by attorney, and also came the person defendant person jury having all announced by attorney, parties ready no been trial, being pleadings and all issues of law and fact court, demanded submitted to the argument read, were the evidence thereupon made, introduced of counsel hearing the court after thereafter same, the 4th of March day A. D. *40 ordered, pronounced open the favor of defendant. It is therefore court plaintiff nothing adjudged the John the court Monroe take and decreed Hickox, Hickox, against T. F. and that the the defendant defendant T. F. his suit against day plaintiff go recover John Monroe all costs of hence without and suit, issue. To which for which execution will the court gave open excepted appeal court and notice to the John Monroe Court of Texas, Supreme sitting Antonio, Appeals Judicial District of of the 4th at San Civil good being Texas, upon plaintiff’s request hereby given and cause shown he is and adjournment sixty days court of this within which after to file his statement of
facts herein.” dissenting. Mr. Justice Chief Cureton generally opinion I For a statement of this case refer to the Appeals, (2d) to the of the opinion of Civil 47 S. W. and Court Special Fouts on the for Associate Justice motion rehearing, (2d) (supra, 446) 107 564. In S. this Court W. originally Appeals, and the was heard the Commission of case (73 opinion recommended in the of the Commission Supreme (2d) 490) was entered I was un- S. Court. W. agree opinion of that able to to the correctness associates, reserving right my so notified then to file dissent- rehearing, ing opinion on motion for after a more exhaustive Argument questions involved. on examination of invited motion, opinion Special as stated in the this Associate Justice argument Upon counsel were informed Fouts. opinion approved previously had not that I rendered Bench thereon, my had the decree entered withheld final con-
nor rehearing until the motion for came on for consideration. clusion approve Special main conclusion of Associate I could agree Fouts, case, being but, reversal nor Justice opinion views, prepare expressing my at the time unable my ap- notation of intention to that a do so later requested I opinion, duty was done. This I pended to that shall My expressed attempt perform. views are well now Appeals (47 (2d) 500), S. opinion Civil W. Court questions there on certain discussed. I shall not elaborate controversy presenting the purpose locus of this For the arguments map reproduce taken from one of the filed I here error, in turn was based of defendants on behalf map presented only is here maps in evidence. The certain showing approximate locations of relative purpose the land here Surveys Block Section 34 and involved. *41 Smith, Monroe,
Mrs. M. A. the widow of John and the other grant defendants in error claim title to this land under a Company the State. The Permian the heirs Oil claims title from Hickox, depends upon but the Hickox title in turn a certain Hickox, in Cause No. John Monroe v. entered County the district court of Pecos on March 1911. John brought suit, 103, against Monroe Hickox, as owner of Section map,
who owned Sections 34 and on the shown nothing" judgment a “take was entered. is the That primary subject opinion. of this as follows: reads *42 February County,
“In the District Court of Pecos Texas. 1911, Term John Monroe vs. T. F. Hickox. day 1911, February the 28th
“On of A. D. to be came on regular heard the above numbered and entitled cause in its docket, thereupon per order on the and came the by attorney, son and person and also came the defendant by attorney parties trial, and ready and all announced for having jury and no been demanded and all law and issues of being court, pleadings thereupon fact submitted to the were read, argument made, the evidence introduced and of counsel hearing same, and the day court after thereafter on the 4th of March, open pronounced A. D. court in favor ordered, adjudged, of the defendant. It is therefore and decreed plaintiff, Monroe, nothing by the court that John take suit, against defendant, Hickox, his fendant, T. F. and that the de Hickox, go day against
T. F. hence without and recover plaintiff, Monroe, suit, John all costs of for which execution plaintiff, will issue. To which of the court the John Monroe, open excepted gave court appeal and notice of e Appeals Suprem Court of Civil of the 4th Judicial District of Texas, sitting Antonio, Texas, at plaintiff’s San re quest good being given hereby sixty days cause shown he is adjournment after of this court within his which to file state of facts herein. [ment] . Douglas, Judge.” K.
“O. W. C. 4, 1911, This was rendered on March and on day findings same the court filed his of fact and conclusions of law, which read: Hickox, “John Court, Monroe vs. T. F. No. in District County, February Term, Pecos Texas. 1911. “I, Douglas, Judge W. C. of the District Court of Pecos County, Texas, day prepared hereby have this and do order filed cause, following findings this of fact and conclusions of law, to-wit:
“FINDINGS OF FACT. Ry. sixty- C-4, Co., composed “1. Block S. F. of G. C. & surveys. they were all made four field notes show that The Barton, County, Surveyor Deputy H. of between C. Pecos October, According days *43 day. beginning tie on the seventh The calls this block testimony Z, Railway, is no to Block G. F. there on C. & S. locating original ground any on the land marks called in the field for notes. Company, 178, Railway
“3. Block No. is com- Texas Central showing they thirty-six surveys, posed were made the record County. Durrell, Surveyor by first Deputy I. Pecos The W. eighteen surveys made appear to on Novem- of these have been 22, eighteen 21, 1882, on November and the last made ber 543, beginning survey at No. at river The call starts Railway Company. marks H. land of & G. None name N. by on the were located the field notes this block called testimony. ground by any of the surveyor T. map surveys W.
“4. The river shown on the Kuechler, Deputy year by Hope were made in the Jacob C-4, Survey 4, F. Surveyor County, G. C. & S. of Block of Pecos objects ground found Railway Company, from located on the and northwest cor- corresponding to for its northeast the calls 71, Survey N. relatively Hope’s map. I. & G. as shown on ners Railway Hope, its surveyor, T. with map W. on the of the mound; call by there no stone corner marked northwest 61, Survey point. No. mound at this notes for a stone the field ground Railway relatively I. & N. G. located on Hope’s map by shown on and the north- course distance from 71, aforesaid, Survey west corner of established as and its loca- tion verified call of its field notes for road on mesa. Survey 3, County land, No. Runnels school was located on the ground by Surveys 61, course and distance based on and ground which were located on the as aforesaid. All lo- of these ground by surveyor Hope cations were made on the T. W. runnings were based on actual as shown de- the red lines map. surveys on lineated map balance shown on surveyor Hope platted according were him to their calls for course and distance based his actual work on the ground lines, shown the red and with relation to the afore- said land marks. By beginning 4, Survey
“5. at the northeast corner of Block C-4, Railway Company, ground, F. G. C. & S. as found on the running by locating thereby course and distance and Sur- 104, veys Railway; surveys 103 and Texas Central these two adjoining immediately 3, Survey would lie south of Runnels County land, Surveys school and would not conflict with 34 and Railway. Texas Central By constructing Railway,
“6. Block F. G. C. & S. based surveys, ground, on the calls for the river as located on the surveys Railway Company, 34 and C. F. G. & S. Block 194 adjoining immediately Survey would lie south of No. County Runnels school land and in total conflict with Sur- veys 103 and 104. Surveys 104, being
“7. by plain- 103 and the land sued for tiff, surveys Surveys are Junior 34 and 35.
“8. I footsteps original am unable to follow the sur- veyor establishing Ry., Block G. C. & S. F. either in the original surveys, location of I am unable cgrrected [or] original to locating surveyor ascertain the true intention of the as to ground. this block on the I “9. am unable testimony in evidence to ascertain
the true ground Surveys 103, 10i, location on the Nos. 3A of 35, above to. referred 194, origi- “10. I find Railway, that Block F. G. C. & S. was nally survey. located an office / “11. that the calls Block to tie on to Z Block find 19J of its calls to tie on surveys to the repugnant river are to each other and inconsistent, and I am unable to determine which of these calls regarded should be surveyor. as a mistake the plaintiff legal “12. I find that the is the owner and holder of simple the fee Survey Railway, title to No. Texas Central purchase Survey and that he holds No. under a contract laws, Texas, land from State of with the school in accordance required proof occupancy he and that by law, has made his thereon standing. good and that sale is in his said possession Defendant holder “13. is the and entitled Survey purchase No. a contract from the under State Texas, laws, the school land and his sale accordance with good standing. inis map Hope hereby
“14. The said is to and made a referred part hereof. OF
“CONCLUSIONS LAW. upon proof plaintiff is “1. burden of establish upon ground, of the two of land location tracts sued for surveys no and to show that there is conflict said between Surveys Surveys and said Numbers 34 and Numbers 34 and being surveys. senior presumed It surveyor
“2. the work of an official actually ground, done on the amount of work he certified having given time, done within a the character of the work notes, as called for the field and the lack of evidence found ground, discrepances objects on the for, distances betwen called like, may and the presumption. be sufficient to said rebut upon survey “3. there are two theories Where which a which ground by any fixed to constructed, of its calls can be theory and one shows a conflict between junior a senior and a theory suryey, and the other shows no conflict between them evidence, presumptions law, and the aided of original furnishes following the footsteps no method for surveyor arriving purpose original or for at the intent and sur- veyor, presumption of the law will be resolved in favor survey conflict, senior there is of the junior the owner of the survey being plaintiff. Having aas
“4. the location Surveys fact found and 35 and 103 and Numbers cannot be located 3U 10í testimony ground evidence, and that there is from a total between them based on certain calls and no con- conflict calls, on other irreconcilable, based theories are flict theory testimony, the true unascertainable I conclude naught by take should suit and that his should recover costs herein. defendant Douglas, Judge Court, C. District
“W.
63rd Judicial District.” Findings Monroe Endorsed: “No. John vs. T. F. Hickox. of law. of fact conclusions Filed March 1911. Frank *45 466
Rooney, Winfield, Clk., Co., Tex., by Dy.” Dist. L. Pecos H. (All mine.) italics statutory trespass try
Monroe’s suit was form of title, guilty.” and plea answer It Hickox’s was a “not was reality boundary suit, thinking a time parties at the boundary there was a of sections conflict between the south lines 104 boundary 103 and north 34 lines of sections and 35. course, survey, map, Of the Yates shown on the had not 34)4 fact, boundary by then been established In the south the State. surveys line of and 104 is shown as conterminous with boundary surveys by north line 34 and 35 Land General maps maps Office of 1896 and Both these are the record plaintiff’s (Permian Co.’s) as not then un- Oil It was exhibits. vacancy derstood known that and fact was a truth there wide, surveys mile now known as between about one-half while, survey. suit, the Yates filed 34)4 No. Monroe’s statutory title, boundary trespass reality a form suit, agree quite Special was tried as such. Associate I with says majority opinion, he “measured Justice Touts when boundary a rule Cause No. tried was 85b familiar Being controversy boundary suit, place suit.” was the a surveys 103 and the one hand conterminous line between 104 on controversy boundary Mon- and 34 35 on the other. In this case, adjudged prove his and the roe lost —did not court nothing.” “take he are asked to decree that these We now nothing" acquired “take Monroe lost and Hickox title to words survey map, approximately on the a half shown located controversy, north line of which and mile between vacancy, upon there then and 35 intervened which sections words, survey 34)4. the Yates No. In other we is now located nothing” say “take asked to that the district court its de- are boundary title to a tract of land in a suit awarded Hickox to cree away, own, Hickox did not and which Monroe half mile Findings above.) (See quoted 12 and That did own. Fact stretching my nothing” judgment a far “take little too accept. credulty legalistic I decline to the trial believe render, interpreted or that under established judge intended to render, decree, an that would he did India-rubber stretch rules intervening controversy point across actual sec- land, premises in its elastic embrace the here and enfold tion involved. meaning purpose
My is to determine immediate nothing” judgment. system “take Under our effect is to tested its rather substance jurisprudence slight importance, particu- is of Form and no by its form. than *46 phraseology judg- lar required judgment is A to make a valid. should, course, proceedings ment appropriate be rendered, which it affirmatively is show the merits of the passed upon, judicial consequences case have been and award the Jur., p. which the law attaches to the Tex. ascertained facts. 25 446, Among requisites judgment Sec. 77. the a is valid universally approved subject the property one that where is the certainty, of the decree it should be described with or furnish Jur., 542, judg- means of p. its identification. 25 Tex. Sec. 81. A sufficiently ment must also be definite and certain to define and rights protect litigants, of all must not be the alter- native, contingent. Jur., 456, pp. or be conditional or 25 Tex. 457, applied judg- Secs. 85. The rules of construction as generally Jurisprudence ments is well stated in Texas as follows: principles “In with judgment accordance familiar is con- plain unambiguous, strued as it is written. If it is light interpreted in subsequent prior be or statements or evincing judicial of the acts court judgment intention when the judgment was rendered. explained by Nor can a be sustained or understanding reference to parties, though even en- pursuant stipulation. tered entirety, It must be read as an if, and rules, taken according as a whole and construed to well-known unambiguous,
it is interpretation.” no room is left _for However, judgment ambiguous, if is familiar rules of con- applied: struction judgment ambiguous,
“If application is made of famil- construction, iar rules of given such as that effect will be intendments, writing reasonable that a will be made to har- facts, monize with the the circumstances will be consid- ered, and that a put common-sense construction will be on lan- guage (Italics as a mine.) whole.” construing ambiguous
In judgment always proper “it is record, to look to the pleadings, entire the issues made in case, testimony support the charge, in by pleadings, offered court, proceed- and other fact facts found ings leading up judgment.” Jur., pp. 461, 462, 25 Tex. many and the only Sec. cases cited in the notes. Not is it true that a must supported by conform to and be evidence, pleadings and but in a case tried to the court “it supported by findings must conform to of fact and Jur., p. 484, conclusions of law.” Tex. only Sec. 103. Not it Jur., (25 true that must conform to the verdict Tex. p. 104), Sec. but must to the conclusions conform judge separately the trial S., when stated. R. of fact found 2209, 2211; Jur., p. cited Arts. 25 Tex. and cases Sec. expressly declares: the notes. As to this rule the statute cited special rendered, or the conclusions “Where verdict is of fact judge separately stated, shall ren- are the court found granted.” der trial is thereon unless set aside or a new (Italics mine.) bearing proper
The rules stated have a direct on the above interpretation involved, ap- here and are as plicable appeal here as if the from the case were one of direct interpretation. decree before us for *47 meaning compelled are
We to determine the and effect judgment 854, described, previously in order to ascer- Cause adjudicata question tain whether or res not is on the title interpreting to the land In that involved the instant case. judgment judge trial we should assume that who entered duty, applicable it did his and followed the rules of law to the case; that he intended to render valid one which appeal, appropriate pro- would not ceeding, set aside on one judicial consequences and awarded the which the which facts; attached to the ascertained that he intended to make law certain, contingent; his decree and not conditional or and that (Art. 2209), he intended to the statute which was but follow courts, generally applied by and the embodiment of "the rule as his decree to the “conclusions found him conform of fact” stated,” found, very “separately day and filed on the Jur., p. 460, 87; judgment 25 Tex. was rendered. Sec. Austin 189; Judgments, Canaway, (5th ed.) 283 Freeman on v. S. W. 132, 76; J., 501, 794, 504, 1, p. p. p. 34 Vol. Sec. C. Sec. Sec. 797. language leading authority susceptible is states: As “When interpretations, from one of which it follows that of two correctly applied to the facts and has been from the other law application, has an incorrect that construction there been upholds judgment.” Jur., adopted 25 Tex. will be Gough Jones, 459, 460, 87; 943; J., v. 212 pp. S. 34 C. Sec. W. 501, p. Sec. 794. judgment the moment assume that
I shall now for before 854, ambiguous, previously quoted) (in is us No. Cause roll, embracing judgment not the whether or determine findings and conclusions of fact of law of the trial instance judge, previously quoted, were admissible in evidence in this decree, depends title Co. its The Permian Oil suit. judgment predecessor says their force of involved, Hickox, title, the land the owner of here became adjudicata of the issue of the defendants res it is
469 brought error, Monroe, under John who lost who claim course, was entered. if the the suit which the Of nothing ambiguous, explain is it. is not admissible to Jur., 459, 86, explains p. supra. It itself. 25 Tex. Sec. Nor can anything roll or else be used to contradict an unambiguous Jur., 853, p. 25 Tex. 328. There are decree. Sec. stated, exceptions just to the rules are not here involved. Jur., 862, p. 331. But once it is determined that a 25 Tex. Sec. ambiguous, the whole record be examined to given meaning, and it ascertain its will a more extensive Jur., p. 461, 25 than %oarranted record. Tex. Sec. effect Judgments, (5th 1, 134, 76; 89; ed.) p. Vol. Freeman Sec. 504, J., p. 801; p. p. Sec. 34 C. Sec. Sec. Judgments, (2d p. 179, 123; ed.) Vol. Black on Sec. Durden 274; Roland, Dunlap Southerlin, 38; v. 269 63 v. S. W. Texas Schrock, (2d) 788; 50 Campbell S. W. Houston v. Oil Co. v. 122, 129; Village Mills, Scarborough, Poitevent 241 S. W. v. Bank, 111; Lipsits 536; v. Texas S. W. Barnes v. 238; Texas, Hobson, 70, 88; v. 250 S. W. Oklahoma 256 U. S. Co., 685, 690; M. M. v. T. 157 U. Last Co. S. Chance Barton Chrestman, 401; Campbell Laughlin, v. S. W. 280 S. 189.W. (Sec. 89, Jurisprudence supra)
In Texas rule is stated *48 as follows: construing ambiguous judgment always proper
“In is (including citation), look to the entire record for the court to the case, pleadings, testimony in the issues made the the the offered charge, support pleadings, by the the or of fact facts found leading court, proceedings up judgment.” and other to the (Italics mine.) Judgments (Sec. 77) above,
In on cited Freeman the text reads: judgment entry express is so of a obscure as not to
“If the accuracy, may sufficient final determination with reference If, pleadings and to the entire record. had to the with the be light them, obscurity dispelled, upon it its is and its thrown apparent, upheld signification it will made be and intended car- regarding signification In of doubt into effect. case ried thereof, any part may the whole record judgment, or of be a removing part purpose of the doubt. for the One examined explained by may part; modified or another judgment be may judgment in the become certain under uncertainties and pleadings parts light upon them or other cast in those illustrated cases which the This is well the record. description supplemented property judgment is judgment made certain this manner. And the will not be given respect a more extensive effect than is warranted by the record.” Judgments (Sec. above)
Black 123 cited states: ambiguous judgments “The rule for the construction of is clearly Supreme following stated Court of Kansas in the language: entry judgment ‘Wherever the is so as obscure clearly express court, not to the exact determination of the ref- may pleadings proceedings; had erence be the other if, light entry, obscurity and with thrown thus such its signification dispelled apparent, is and its intended made judgment upheld and will be carried into effect in the same though meaning and intent manner its were made clear and ” by its terms.’ manifest own Corpus The texts cited from 34 Juris declare: legal operation judgment “The effect of must be ascer- interpretation presents tained construction of it. This Judgments question for the court. of law must be construed give whole, every part. as a and so as to effect to word and may purpose roll looked entire to for the of inter- legal Necessary implications pretation. although are included terms, adjudication expressed in not beyond does not extend (cid:127) language fairly legal effect, used what warrants. The language used, governs. than the mere In rather cases ambi- may guity doubt, the entire record be examined and consid- Judgments are to have a reasonable ered. intendment. Where a susceptible interpretations, two that one will be adopted reasonable, renders it the more which and con- effective clusive, makes the and which harmonize tvith the facts ought law the case and be such as have been rendered.” (Sec. 794, mine.) italics language ambiguous of a “Where or its doubtful, meaning pleadings reference had judgment interpreted light case, and the throw *49 meaning judgment upon if plain it. But the is clear and changed, face, extended, it not on its anything can be or restricted pleadings.” (Sec. 796.) the contained interpreted judgment should be with “A to the ver- reference possible jury, and so as to dict harmonize them. Like if of apply are where rules court or facts found referee.” 797, mine.) (Sec. italics Judgment Writing Estoppel,” on “The as an in his Freeman Judgments, part, says: work on adjudicated prior “To determine what action was course, may, judgment record in case The that of be considered. properly judg- proved. itself But as the must be inasmuch mere court, may jurisdiction ment of or not alone establish the determined, necessary ordinarily show it what matters were is prove judgment-roll judgment whole or when a record urged though estoppel may is always bar. And even it not as an or always necessary, proper it
be is do so. But as to just may regarded part what be as a of record for this may purpose proved extrinsic matters what be or consid- ered, However, quite there is no absolute or universal rule. it is generally agreed pleadings, jury instructions to the verdict, findings conclusions, may and the or the be looked adjudicated.” (Italics what to to determine was mine.) Free- Judgments, (5th ed.) man on Vol. .771. Sec. authorities are with Texas consistent the texts cited quoted. quite elementary It is also when reference had must be ambiguous interpreting judgment, an record lohole may Judgments, (2d record ed.) examined. As said in be Black p. 124: Vol. Sec.
“ * * * copy of judgment and when a the record of the is bringing required, purpose by appeal for the of the case or writ court, bringing of error into or suit it in another state, record, an as evidence under issue of nul tiel or to adjudication subject-matter establish a the same be- former parties, tween the same and indeed in all cases it where complete judgment, essential to have a record of a pleadings process indispensable part general are an it. And the is, copy rule where record is re- quired, record, it be may must whole so the court legal it, quite determine the the whole may effect of part.” (Italics mine.) different Indeed, only is it true that the whole record ambiguous interpreting examined in but evidence record, parol, outside the even admissible show for what recovered, “what was the real cause of 803; J., p. McKim, action.” 34 Sec. Labrie v. C. 120 S. W. 1083; Burnley, 97; Place, 45 Texas Cook v. Russell v. 94 U. S. 606; McAninch, 132, 135; Donald, Freeman v. 87 Texas Reast v. McIver, 648; Texas Oldham v. Texas (in 854) ambiguous? us Cause
Is the before No. open discussion. is not You can That is so not from the determine nature of face the cause of *50 recovered, action, for, any- if what nor what was was sued thing ; any property description nor does it the of contain ambiguous, absolutely only land. As it mean- stands it is but ingless. you you read it know that Monroe sued Hickox When lost, land, injuries, personal and but the suit was for whether etc., lien, you the of a can not determine from foreclosure face might it infer from the names that was not of the decree. You divorce, as the a suit that is as definite conclusion face and was, is, necessary judgment it and to exam- of the warrants. So action, the of cause of ine the record determine nature the involved, any, description property and to of if ascer- the the court, the trial in order that we so tain the facts found interpret that it will the decree in such manner award the (Authorities consequences judicial the ascertained facts. of supra.) judgment majority opinion says in this case
The the is not ambiguous, description although “It is the it states: true the of appear cause action do not in the land and nature of of judgment.” mine.) proceeds (Italics opinion then face correctly, hold, supplied “by it if I this is understand plaintiff’s appearing pleadings the direct reference Then, “By judgment.” opinion, declares the face of this effectively supplied in the there is as reference description though disposed cause of of the land and action of as face,” citing in its the Judgments, had recited both Freeman on 97; Teal, (5th ed.) Sec. Martin 29 language Vol. v. S. W. Valkenberg, 691; Ruby Texas 450. The Von reference, opinion to which makes follow- following ing appearance, is found in the recitation extract: thereupon read, pleadings introduced, were the evidence “The made, hearing argument and same,” counsel the court after judgment, pronounced etc. This is a mere recital read, incorporated descrip- no more pleadings were action and the land of the cause of contained in the tion than it did petition in the “the evidence introduced course, argument pleadings, made.” Of counsel like record, interpreting could be considered in the balance ambiguous say recital bare pleadings incorporates pleadings read so it, were stood, ambiguous character, it as to its decree relieve strange be, believe, so as to I novel is a doctrine precedent. without Certainly authorities support cited no manner Judgments from Freeman reads: text cited it. The capable principle that is certain which “In view generally certain, being held that a made tO' reference *51 pleadings parts the or other of the record is if sufficient adequate description. sufficiently contain property an If the is judgment in described the declaration it is sufficient for the to premises refer to it as the ‘mentioned in the declaration.’ But description if uncertain, the referred to is itself it can not aid judgment, the as a writ where is directed to to to issue restore plaintiff possession lands, or so much as thereof are not boundary verdict, farther south than the line described the designates being merely and the verdict such line as seven and hedge. judgment nine feet of a A south certain for ‘the tract petition,’ of land described in which fact describes two tracts, describing property property is insufficient. But as ‘the controversy’ may (Sec. 97.) be sufficient.”
Freeman, shown, as has reference to decrees which refer pleadings specifically descriptive to purposes, for “the as petition,” tract of land in the described etc. judgment part
In Martin v. Teal the that was “the wire enclosing survey etc., controversy,” fence and in and that possession the defendant recover said of “one mile or more of enclosing survey wire subject fence said matter of this controversy.” Appeals All the Court Civil held was that judgment description was sufficient “when it for refers such pleadings by which it can be made certain.” Ruby Valkenberg
In judgment v. Von a rendered in 1847 evidence, was introduced property which decreed “that conveyed by plaintiff deed, and wife which has incorporated copy petition a into his part which made a simply decree.” This held Court that under the as law judgment permissible. existed when the was entered this was involved, question viz., The here whether a bare recital that pleadings vague were read a court district case relieved a meaningless judgment ambiguity of its to such an extent complete judgment-roll as forbids reference to the pretation, in its inter- was not involved nor determined either of the plain plaintiffs cited. authorities The fact is in error ambiguous depending upon are judgment and the whole meaning,— roll record is admissible to determine its record, part just pleadings example, for —but it, may legal “so that the whole court determine the it, quite the whole be effect of different from Judgments, However, part.” (Black supra.) Sec. of if it pleadings bare recital said be legal incorporating read had the effect of were within petition (which, itself the entire in Cause No. 854 law, sense, practice as a common and common matter it does ambiguous not), relieved its still the would not be character, char- had to ascertain the and resort must still be entered, and the effect acter of suit in which the given decree, awarding consequences judicial to be statu- petition in form was one of determined facts. tory trespass title, plea of and the answer consisted of a alone, Looking guilty.” petition “not and answer what at the might, nobody It sort of suit The answer can tell. was it? course, actually possessed the title be one to determine who described, might any of a number land but it one purposes, of other viz.: boundary might boundary suit,
(1) It determine *52 long surveys, adjacent it been the law line between two for has title; brought try trespass suits in form of to such could be or grantor brought by'a might recover (2) it an to be action as, deed, for land a of a
the because of of condition breach notes; example, purchase money or pay for failure to by compel (3) an to his tenant action landlord who seeks lease; premises upon expiration of a or to vacate the (4) by appropriated an an owner whose land has been action public compensation; or use without validity (5) process or under an action to the sale attack execution. Jur., 5; Vandervanter, v. 84 p. Tex. Sec. Weaver 691; Brown, 41; v. Kaufman v. 83 Texas Andrews
Texas Parker, Co., 94; I. 48 Texas v. C. R. & G. R. S. W. Garner Davis, 132; 4; Rosenthal, (2d) Spencer 58 Texas Purinton v. v. 145; 455; Cottingham, v. 49 W. Curran 66 Texas Smith v. S. Beardon, Mtg. Co., 466; Bull 159 S. L. W. T. & 60 S. W. interpreted alone It the is obvious that since many petition does not which one the in this case disclose brought trespass try to in the form of actions which could be ambiguous tried, brought it is as not dis- in fact title was closing action, important in factor deter- the nature of the say plea adjudieata. mining of res Shall we the of a effectiveness against trespass try brings to title suit a vendor that when payment in the has defaulted the vendee latter his because nothing” money, he purchase the court decrees that “take disclosing in the decree that he does the without in findings he has the vendee in his fact found this because thereby payment; vendee re- in has has not defaulted title, and his vendor’s that the balance the land and has covered including findings fact, may record, not be looked actually litigated not, although toto ascertain what think ? I majority opinion that would the certain in be result under the brings say trespass this case. we when a Shall landlord try against tenant, to title suit in his and is defeated fact be- tenancy up, “take cause is not the tenant under a nothing” judgment get title, would his landlord’s and that record, including findings, not fact could be examined litigated? not, just yet determine under what was I think majority opinion the Many in this case that the result. would be application
other illustrations of result of an majority given, opinion doctrine of this case could be grave injustice looking only the above to show suffice nothing” pleadings the “take decree and the as alone determin- ing litigated actually trespass what has been says: action. Greenleaf way bar, “When a former is shown whether
by pleading, evidence, competent it is for the reply, property that it did relate to same or transaction controversy bar; action, up set which it is raised, question identity, thus is to determined jury, upon though the evidence adduced. And declaration enough subject- the former suit to include broad action, yet if, upon record, matter of the second the whole subject-matter remains doubtful same whether the were actual- *53 ly passed upon, parol may it seems that evidence pleadings present be received So, also, to if show the truth. the several propositions, distinct and evidence the be referred either to to propriety, or all with the same the is not conclu- sive, only prima upon any proposi- but evidence one facie tions, and (Green- evidence aliunde is admissible to rebut it.” Evidence, (15th 532.) ed.) leaf on Vol. Sec. adds in his notes:
Greenleaf
that,
prove
point
“It is
to
what
obvious
was the
in
in a
issue
law,
previous
necessary
produce
action at common
it is
to
Glover,
record.
4
entire
Foot v.
Blackf.
And
see Morris v.
Keyes,
540;
Hays,
1 Hill
Glascock v.
As I understand the in this it dis- regards try trespass the difference between a title to suit which title, trespass try involves and and a to title suit determines referring boundary. and After to which involves determines formerly permitted only that we two for the fact suits title and though might brought boundary, each in one over form title, forty trespass try years from for to more, jurisdiction trespass under the statute had over Court reality suits, try in title had title when were to suits although suits, brought tres- boundary none in the over form pass try title, opinion to declares: unwilling authority accept are to cases of either class as
“We proposition for are involved that different causes of action brought statutory trespass try to title form one suits boundary turns on the fact of and the other of which affecting evidentiary turns on some other fact title.” plainly majority opinion quotation dis- That shows regards trespass try the essential difference a to title between trespass involving title, try determining to title suit involving boundary. determining an- suit The rule thus authority, nounced, believe, precedent I is without and without it, opinion, far and the in so as I am able to understand cites none. many adoption years law and
For after the of the common permit- Trespass Try Title our statutes to Statute recovery plaintiff, title lands ted two suits to first, although he the second within a limited time after Then, now, first were lost the one. these suits to be Court, following try course, trespass form of title. This statute, recognized first that an adverse right adjudicata plaintiff’s suit was not res or a bar to the timely if file and the second But this Court held suit. suit, though try title, trespass in form of was the first suit, adjudicata boundary reality was res adverse Andrews, 5, 12; v. the second suit. Jones Texas and barred 30; Spence McGown, Montgomery, Bird 34 Texas v. 53 Texas v. Mattis, 713; Texas 242. v. San Patricio Andrews, cited, just In the case of Jones Court makes recognition involving clear its distinction between suit title, involving and one determine to determine and boundary, though approving nomi- rule where suit disputed boundary, nally try title, was fact to settle a not a suit. generally Bar the recollection is well within It years Appeals few 1892 until a back Courts Civil boundary suits, Court, jurisdiction final over and this had though *54 suits, power hear such had no clothed with boundary brought suits, though authority even in form of over Wright Bell, try 577; trespass title. v. 94 Texas v. Schiele 944; Finks, 318; Kimball, 91 Texas Cox Steward hundred S. W. So, Co., approximately Texas 445. for an v. years Coleman recognized jurisprudence of Texas has a difference the though brought boundary suits, even each were title and between late, trespass I statutory title. think it too form legislative action, say longer without to now that we will no recognize apply respectively the distinction and rules of law applicable. course, boundary Of it is true that in a the de- suit fendant, fable, nothing, say like Bre’r Rabbit in the can sit and compel plaintiff prove title; his this does not boundary make it a title suit —it still remains a suit. Cox v. Finks, majority opinion 91 Texas 320. The in this case quite rightly says: by rule, “Measured No. Cause familiar boundary as tried was a opinion suit.” I am of the that the 85k nothing” judgment interpreted “take should be as a “take noth- ing” judgment interpreted suit, boundary would findings harmony with the court’s of fact and conclusions of law, suit, majority opinion instead of as if in a title holds. go record, findings we When examine the court’s law, fact and conclusions of find we in fact the court did question boundary, not determine the because he was unable surveys whose locate conterminous lines were involved. finding 9, quoted He so in fact No. stated above. In No. 4 of law, quoted supra, his conclusions of the court stated his reasons entering nothing” judgment, the “take as follows: Having “4. as a that the location Surveys Num- found fact bers and 35 and 103 and cannot be located 3k 10k ground testimony evidence, and that there is a total from between them based on calls, certain and no conflict conflict calls, based on other which theories irreconcilable, are and the theory true testimony, unascertainable I conclude that plaintiff naught should take this suit and that the defend- ant should (Italics recover his costs mine.) herein.” perfectly plain It from this conclusion that the words nothing” “take as used in the were not intended to any land, disputed award title to strip even a to Hickox. —not judge said, plaintiff The by “I conclude that naught” should take allegedly conflicting surveys this suit because could not ground; words, be located in other should naught” simply “take because he had failed to make a case. nothing” The words “take used in the are not by statute; words defined nor are defined in Words and They similar interpreted Phrases works. are to other interpreted, here, same manner that other words are —and ambiguous decree, meaning as found must have their de- decree, with the viz., termined connection basis of that findings of and conclusions of law of fact the trial court. That use, judgment rendered, their the court did not title to section 103 to intend to award Hickox is shown his *55 finding 12, quoted above, No. “I which he said: the find plaintiff legal is the owner and holder [Monroe] fee simple Survey 103,” think, title to plain, It etc. is also I judgment any the court did not intend fix or establish boundary judgment ambiguous, interpreta- line. The and that only findings tion is the one consistent wih his of fact and con- clusions law to the effect that he could not locate on the ground surveys involved or their conterminous boundaries. object purpose and of a
The suit to determine title and those boundary plainly different, require of a suit are different judgment. object types trespass The of a title suit to is, course, and determine title establish to ascertain who has land; superior judgment title to the and a which describes petition, it is the land involved as rectly described either di- reference, description, though is sufficient as to even simply copy patent, provided, field notes of the — course, by may Judgments, it the land be located. Freeman on object (5th ed.) purpose 96. The boundary Vol. Sec. of a boundary, judgment is to ascertain and the suit determines ground of the line on the the location and describes and iden- Jur., 680, 681, pp. tifies it. 41 Tex. Sec. 173. And it is ele- mentary void; that a decree which does not do so is and since merely description patent which follows that of settles nothing, parties leaves the where were when the suit began, judgment Langshaw, is void. Converse v. 81 Texas Higgins other authorities cited Justice in Permian Smith, (2d) 500, 507, seq. 47 W. et Oil Co. v. S.
Bearing objects purposes in mind these differences in the to determine title and those to of suits ascertain and fix bound- aries, the resultant differences in descriptions judgments, plain characterize must that a “take noth- boundary ing” title, in a suit does not decree transfer because and determine boundary. not establish it does Such was the general given to a for pre- effect the defendant in a boundary Wofford, in the case of suit Wallis v. vious 26 S. W. 739, by many years graced Williams, who afterward for Justice reported Texas. In Supreme Bench of case in the former suit up defendant was set for the as a bar to the action. Justice maintenance overruled the Williams contention, saying: petition, appear “But, any it does not from the line was simply defendant, for fixed. which means had not shown himself entitled he sued. for which Whatever land be the effect of *56 judgment, any boundary, pre- that it does not fix does not asserting which, appellant any clude title to land under it, may or consistent with he show himself to have.” connection, elaboration, In this and without I desire to state Higgins approve that I what Mr. Justice has said as to the in- validity involved, judgment failure, of the here because of its light record, boundary dispute. to of the determine the Smith, (2d), pp. 500, 507, Permian See Oil Co. v. 47 S. W. seq. et regarded judgment
Thus far I the have here involved as boundary said, however, one rendered in a If suit. it be that it (which not), was truth and in fact a suit for title it was still produced by proper the result observance of the rules of inter- viz., pretation same, nothing” judgment is the that the “take awarding did not have the effect of Monroe’s title to Hickox. dealing ambiguous judgment meaningless are with an We —a one, judgment until it is read connection with the roll. When go findings we the to roll examine the of fact and law, apparent conclusions of it is at once that the court did not Survey Hickox, title to intend to award the says, 103 to because he shown, as I survey. have that Monroe owned that An ambiguous judgment interpreted harmony is be with the findings court, and conclusions of the trial if this can be done. supra; S., 2209, 2211; Authorities R. Jur., Arts. p. 488, 25 Tex. if nothing” 106. Even it said that Sec. be the “take suit, here was rendered in a title there is still another reason why it was not effective to transfer title from Monroe to Hickox. Assuming ordinary nothing” that effect of a judg- “take defendant, ment is to transfer title to the plain, think, it is I application rule has no deciding that where the court land, to locate the very case is unable and at the time of the of the finds that it rendition can not be located. proceeding
An title is a action rem or of the nature proceeding. Jur., p. 678, 41 Tex. of such Sec. 170. The title jurisdiction of the court’s land, is transferred because operates, personam, not compelling and the decree transfer, party rem, upon to execute a adverse the land transferred, land. the title is and title to the is If transfer operating upon property itself effected jurisdiction within the court. “The juris- foundation of (McDonald physical power” Maybee, diction is 243 U. S. thing is, power 91), actually to seize a exists,— exists, knows possession court deliver into the —and adjudged rightful party has possession. to whom been A jurisdiction its court judgment without to transfer mere force locate, ex- land can which the court not pressly locate; indeed, that he can in this case finds not — court not certain the existence the land which could truth, purported the suit In in his con- involve. court quoted, clusion of law said that he concluded No. heretofore naught,” that “the should take because [Monroe] light surveys clusion, In the that con- involved could be located. nothing” interpreted, judgment must his “take defendant, say Hickox, it he transferred title to against reason, only is not sound but would assume that deliberately entered a void knew at court he —one void, elementary the time the reason —for *57 property that it a decree must so describe the awarded ground. Jur., p. Tex. found and located on the Sec. involved, If was unable to locate the land as he the court Hickox, awarding concluded, yet judgment entered a it to and compelled say deliberately a then we he entered would be judgment interpreted not in this void decree. The is to be man- interpretation judgment if which ner there is makes Jur., Gough supra; p. 460, 87; 25 Tex. valid. Authorities Sec. Jones, interpretation judg- proper 943. A of the v. 212 S. W. purpose title, is that had no transfer and ment before us nothing” merely entered the “take order was because the by prove plaintiff failed to his case of the sur- had location conflicting lines, any. veys The and the conterminous if case McAninch, relationship 87 Texas bears no of Freeman Stay- Judge by The statement of that case. case instant follows: part, is as ton, brought D. Freeman John an action
“On December against McCray and Daniel J. F. McAninch to recover a tract containing acres, league part of a of land one-third of 622^2 Washington. originally granted Joseph petition was land title, petitions trespass in actions of in the usual form by land sued for metes and bounds. described petition, pleaded guilty, demurred to the “Defendants years, up and ten and set of three title in themselves limitation land, giving description part that which each to claimed, , survey by made virtue of certificate issued to under George Allen. estoppel Freeman,
“They pleaded acts of D. also C. good improvements made in faith. value claimed jury, tried before “The was verdict for cause was rendered his judgment favor for all the land judgment for, petition. in the was described as in the which sued judgment prosecuted error defendants a writ of “From Court, Supreme where the was affirmed. in that seek in this to avoid the effect of “Defendants action adjudication all land as an of the title to judgment; McCray petition and Daniel in the described acres of the land embraced in that now asserts title to 134-1/3 through conveyance made he asserts title to which pending that D. Freeman action.” C. sought judgment against McCray to avoid the him Daniel agreement land acres of the because of some oral to 134-1/3 lawyers, judgment roll, part had no of the with he did not introduce in reason of which evidence his title. Stayton Judge held was that he could not All that contradict agreement, such an evidence of and that he previous Briefly, the decree in the suit. was concluded decided, way and in no sustains all that was the contention us. of the Permian Oil Co. case before opinion majority approve is said I what with notice, judgments, pur- reference to recordation innocent disagreement chasers, my what I have said above etc. From with question majority apparent. vital here involved on the Ap- I am of the view Court of Civil affirmed; done, and since this was not peals should have been shown, respectfully I herein dissent from and for the reasons majority opinion. *58 July Opinion 1937. delivered Company (Fidelity-Phenix Fire Insurance Insurance
Gulf Gaddy. H. v. J. Company) 6845. Decided March 1937.
No.
Rehearing
May 19,
overruled
(103 W.,
Series, 141.)
S.
2d
notes
monu-
having
statutory
mental
corners
defendant
answered
guilty,
plaintiff
nothing
form of not
take
go
day
void,
that defendant
hence without
was not
but was and
is valid and
Roberts,
admissible
evidence.
v.
McCamant
260;
Ward,
1063;
Texas
Cleveland v.
116 Texas
285 S. W.
Arnim,
Simmons v.
110 Texas
Notes
four The notes County, Barton, Deputy Surveyor of between H. C. Pecos According October, field notes days 1881. 5th and 20th of Survey 4, block, marked corner was this the Northwest of No. of Survey pebbles of of for the N.E. Corner as follows: ‘Pile 3, capstone mountain south bears No. this block varas,’ mound is described the Northeast corner ‘Stone cap- capstone E and another from which mountain bears S. 19 answering E.’ to this mountain Corners de- stone bears N. ground relatively scription as shown found on the located were surveyor Hope. of T. sketch W. Z, Railway Company composed “2. Block Texas Central is of They Schadowsky, fifty-four surveys. by were made F. between days November, beginning 4th of 1882. The calls and 8th testimony no locat- tie on to Block There is of block C-4. ground. ing this on the block Ry. 194, Company composed F. is “3. Block G. C. S. & showing surveys, made Hundred the record were One Durrell, Deputy Surveyor County, L. W. Pecos between days May, fifteen appears 1883. It made 17th and 31st surveys he surveys days ten on on each of first six beginning day. seventh The calls this block tie on Block locating Z, Railway testimony & F. there no G. C. S. ground original any for in the land marks called notes. field Railway company “3. Block No. Texas Central com- showing they thirty-six surveys, made posed of the record were Durrell, Deputy Surveyor County. The first L. Pecos W. surveys appear eighteen on Novem- of these to have been made November, eighteen made on last ber beginning survey The call starts at at No. river Railway company. H. None of the land in the name of & G. N. located field notes this block were marks called for ground any testimony. on the surveys surveyor map T. shown on the W. “4. river
notes 5th and 20th 1881. field of block, Survey corner was marked No. of this northwest Survey No. pebbles as follows: ‘Pile E. corner of N. Capstone Mountain bears south block from which varas,’ mound from is described as ‘Stone northeast corner Capstone Capstone another S. 19 E. and Mountain bears descrip- E.,’ answering Mountain bears corners to this N. 70 ground relatively tion were found located as shown on the surveyor, Hope. T. sketch W. Z, composed Railway Company, is “2. Block Texas Central Schadowsky, fifty-four They surveys. F. were made be- beginning days November, 4th tween the 8th 1882. testimony no to Block There is calls of this block tie on locating C-4. ground. this block on the composed Ry. Company, F. “3. Block & S. G. C. showing they surveys, hundred were made one the record Durrell, County, Texas, Deputy Surveyor I. be- W. Pecos days May, appears It he the 17th 31st tween days surveys ten sur- made fifteen veys on each of the first six