*1 THE SOUTHWESTERN

VOLUME means of be veyor fraud. ty ; plaintiff appeals. know the field plaintiff less of the increased value of the other land. From a sufficiently excuse for had a and the trade and lulled into the was the amount circumstance fendant and his veyor; acre; was that he relied to representation tract of number of acres which he failed to sale tract fused to defendant putation Deficient ure of [IOd. Fraud Fraud Limitation Actions, exercised to discover plaintiff acreage; The measure of John M. Green of land to SMALLEY how to calculate that of Civil Note.—For other petition alleging statute does 60-62, very cases of that 36, 37; notes; surveyor, land sold accept paid Damages. On Motion for Dee. had judgment dismissing he alleged that oe ing F. J. he and the Acbeage county limited 1914. On therefor as to the number had no reason to oe Period — it until he later had plaintiff, represented paid by agent, it contained April —Actions fraud —Deficient v. VOGT. unless it surveyed by Actions at an Smalley Bevefsed and defendant’s fraud and not run at the time acres; education, —Petition. failure th#re of Texas. at sense Discoveey cases, arouse the fraud the fraud or agreed price per that surveyor induced Behearing. an’ number of acres (§§ 96,100*) surveyor; until foe purchaser that Acreage (No. 5251.) agreed defendant, suspicion. Calhoun surveyed; see Limitation 337, 475, diligence- Damages security no other sur- shortage suspect Fraud, vendor’s San Antonio. Fraud, to acres; plaintiff county get, regard- represented of Fraud. Gus acres, the sale— 1913; when surveyed; defendant make rate Re that did —Meas —Com cause, Coun- Vogt. must some in a mis- acre missed. that that fob sur- per de- he his faith pellee tions of the land tions of fraud of ed make men; there was unless to excuse fraud were have acted veyed, acres, defendant, county ’ at the veyor.” sented to tained to the and ber of forth in the whom we surveyor, and, after the same had appellee pellee. due business of leged appellant. in a tract sold The fraud of Wilson & FLY, appellee tract acres did no reason to believed sense that that that he has both appellee acres agreed reason of a deficit of honor and appellee in the land until he had it secured the services of the that he relied and believed that acted as appellant that it Gus deal. J. the world the tract contained 624 acres of the sum appellee know how calculate the petition, containing full and clear Hamilton, fully them (the plaintiff rate of security confidence petition, Yogt, trade, D. had the time. appellant by appellee the field appellee was and the most, if represented Appellant suspect Love, integrity and the and the facts which man, $15 The Exceptions that be fair built of Port circumstances. same and the elaborately alleged the tract contained .notes; surveyor, limited refused “he- after a tract of herein) facts enough it contained 624 number to him. He al Uvalde, sued surveyor repre to discover the sufficiently all, acre; to him surveyed, was lulled he was induc alleged acres for the same there was. Lavaca, in Calhoun those representa representa show that cause education, to confidence to surveyor, relied on and that surveyed the sur that he upright recover county by ap- accept carry to be acres num sus sur dis: for ap- set in *For other cases see same Key-No. NUMBER in Deo. 166 S.W.—1 *2 (cid:127) (Tex. 166 SOUTHWESTERN 2 quantity resurvey less, surveyed by seller, bas a more but and his is the recital, appel- nothing sus- outside of that assured it, to arouse is of when there experience lant picion, that few that there were 624 acres of land. He teaches us quantity by field the from the on the the could field calculate of calculate the majority rely notes; compelled deeds, vast in their the *3 Rafaela ment Crafts other land. sustaining exceptions to a motion The motion is overruled. for a dismissal want reinstate the cause after appeal. plaintiffs prosecution, Reversed 5248.) remanded, (No. instructions. and al. et McALLEN et al. v. CRAFTS See, also, 41. Antonio. Texas. San Rehearing 25, Denied March 1914. Antonio, Graham, Childs, of and J. D. San ap- Jones, Brownsville, Dancy, for West & (§ 61*) 1. Abatement and Revival —Death Corpus Christi, pellants. Scott, Statutory Party— Jno. C. Provisions. providing 1886, 1911, appellees. Rev. St. art. for abate not a suit shall a by action survives cause of death, reason may appear, administrator, executor, and, upon heir or appeal judg- FLY; J. This is an from a death, suggestion made a motion for ment 1887, providing plaintiff, and article cause which had been suggestion reinstatement appearance made at no such upon issued shall be preceding the first term scire facias dismissed at of the court term executor, application defendant’s ministrator, the for prosecution. for want of There were three appear prosecute or heir to plaintiffs suit, McAllen, in the James may which, suit, the suit to do Young, only McAllen, discontinued, applies and about to cases B. and John two only plaintiff. one prior to term of court at months Abatement [Ed. Note.—For other John McAllen died cause was dismissed Dig. Dig. 314-319; Revival, Dec. §§ Cent. administrator for his es- executor or § appointed. tate had been 75*) 2. Abatement Revival —Proceed 1887, [1-3] Articles 1886 and Suggestion Revised Stat ings of Death. to Review — providing utes, applicable any except art. Rev. St. are Under ease plaintiffs or more that where there and one or tion survive two only plaintiff, one they which there die, of ac- if the cause more of them merely appel are referred to because survivors, suit shall to the attempt apply that, upon death, lants them to their case. abate suggestion record, shall reason such .being entered of such death applies Article 1S90 to cases in which alone party, suit, either at the instance of plaintiffs there are two or more or defend survivors, proceed name of the provided: ants. In article 1890 it is “Where entry upon suggestion rec- of death and its any plaintiffs action conditions or ord are there are two more more of them defend permitted by the court. ants, die, and one cases, see Abatement [Ed. Note.—For other surviving plain cause of action survive to the Revival, Dig. 441, 445-465, 467- against surviving' defendants, tiffs and 482; § 75.*] Dec. suit shall not reason of such abate (§ 61*) Abatement and Revival —Death death, but, upon suggestion of such death Party —Dismissal. being shall, it was record, Rev. St. art. Under suit entered improper to dismiss a suit party, proceed in the instance of either plaintiffs, one of died stituted three surviving plaintiffs the name giving pending suit, survivors without surviving defendants, any suit. appear prosecute as the case may ignore provision be.” We cannot cases, see Abatement suggestion entry of death and its 314-319; Revival, Dec. up record, for the condition § any permitted on which action is (§ Dismissal Nonsuit —Rein suggestion court. was made Application. statement —Notice judgment case, by rendered dis- court dismissed a suit instituted a final Where missing prosecution, and a cause want plaintiffs, three one of whom had died ended, rendered had at which was the term the court denying suit, giving after institution of the the without authority judgment to render had no any opportunity whatever survivors motion to reinstate appear motion to all prosecute reasonable notice of the suit. That action n of the defendants. justified the statute. was not cases, see Dismissal and [Ed. Note.—For by appellees that It is insisted Nonsuit, 81.*] judgment no notice no final because except Kleiber, of the defendants en to Appeal Error —Recitals appeal Judgment. should and therefore be dis- appeal judgment sustaining ex- true, appel- If that contention be missed. ceptions a motion to reinstate a cause dis- right appear lants would have the before prosecution, it could not be for want missed presumed order to have the the trial given defendants were all motion, final, ap- where the fail to see what ment made notice cited were defendants not served gain pellees the dismissal. If the notice. notified, the court other defendants sustained demurrers to not have should 2912, 2917, 3748, 3758, Error, Cent. reinstatement, petition but should Dig. Key-No. see same *For other cases NUMBERin Dec. notes representations acreage they men, so in if of two whom he had calculate the could not desired. The they trust, allegations present a of absolute confidence and failed case bought by acre, part him’. The land had been the fraud, of the show laches and do not misrepresentations "discovering and of acres caused a loss to fraud. The the to the number the in jury, $1,200, allegations of case for amake allegations his true. He should be be merits. tried on its should be prove they clearly en true. the is set forth as to laches The rule the First Court Associate Justice Reese of cross-assignments Wright, The The are overruled. 50 v. of Tex. Civ. said: “It in Isaacks reversed, the cause App. The court means S. W. 970. the is true investigate, hand, felt called Rehearing. the have discovered he could there was his Appellee absolutely nothing in insists under to arouse the rules suspicion regard slightest "Supreme Court, promulgated of mind the none the put possession assignments in thereto. had been the of be consider- error should adopted presumably he had .the vendor’s for the ed. Rules were ground him, appellate courts; protection bought, sold the identical of the trial and of deed; and, delivery rules fail of the had been while it is a violation of after vised veyed by the transcript page identical land con- was the where to refer to of the this deed; complained court, found, corners had the lines and of his the matter this eyes agent pointed out; and, appellee, it. inconvenienced knowledge, his had erected enforcement We believe in a reasonable and with his fence circumstances,- rules, although proceeding, planted Under these a hazard- it seems to be trees. guilty, law under the ous in of the action of view cited, Supreme of error in the decisions Court in writs as laid down in running, in statute to start the several instances been laches as to where rules have flagrantly assignments plat failing proper get his deed and with violated and of er- verifying description ror have not been in considered because assistance no mis- such infractions. If fundamental error can that there was deed to sure suspicious predicated rejected assignments man on of er- cautious take? might ordinary require scrutiny facts, so, ror which court man this have done position looking prudence, inis no to enforce rules. in after his af- business Cherry Harlingen fairs, the Houston Motor 628, v. case Land Water Co. did under have done (Civ. App.) the circumstances.” Co. assignment error, .but one when the In cases of fraud

[2] complied diligence or stat- in wise with rule means must ute, and this court refused to into the such fraud exercised running mistake; but, statement of facts to discover errors not to start the in order Supreme statute, in manner. The Court circum dicated of stance there must be some granted suspicion. Appel a writ because fundamental error to arouse survey, case, lant, in had been discovered in the facts This in had asked in declaration Oil the face Houston his vendor and the sur and he relied Kimball, vendor, agent Co. v. Tex. veyor, S. W. error does to make an survey give 124 S. W. not that fundamental him a true and accurate faithful survey report an “which can mean error be ascertained thereof. appellee by looking considering made, ported into record and re and both just the evidence.” Another writ has granted 624 acres. land contained - attempted they gave him, field notes The were meanders ing (149 x). of rule 62a S. deed, enforcement Peden W. embodied in the called (Civ. App.) giv Bayou,” Iron & Steel Co. Jaimes v. of “Chocolate assignments S. 965. The this case distances the courses and point, accurately meanders, were all directed to the the action of one could such calculate quantity land contained with petition. necessary Nothing It was not to name a such field notes. actual assignment survey that was sustained. It the land could have revealed to did, hold, appellant reasonably prudent acreage. was sufficient to petition alleged should, a ease that sus- man would have made by facts, survey, been submitted to the tained but would have relied survey quantity of as to the land. The [3] The measure conveys appellant 624 acres of and not the amount land. deed CRAFTS Tex.) V. McALLEN Cameron Coun- get. def- The value which lie failed to ty; Hopkins, W. B. enti- he is that sum icit was and to and others McAllen regardless tled, increased value From L. and others.