69 Tex. 470 | Tex. | 1888
' ■ On the third day of October, 1883, appellant and wife conveyed to appellee by deed a tract of land which was described in the conveyance as follows: “All that tract of land situate in Fayette county, State of Texas, adjoining the town of Shulenberg, part of the J, A. Anderson league. Beginning at Franz A. Stanzol’s northeast corner; thence south one hundred and ninety-five varas to street; thence west to Wettbecker’s corner three hundred and thirty-two varas; thence north one hundred and ninety-five varas; thence east three hundred and thirty-two varas to the beginning.” The land was sold by the acre, and the field notes embraced eleven and one-sixteenth acres, for which the deed called. At the time ■ of the conveyance, appellant had a fence running north and south across the tract therein described, and three hundred varas west of the east boundary line. He then owned also the land lying west of the fence and also west of the premises described in the field notes, taking course and distance as the true calls of the survey. The undisputed facts were, that appellant agreed to sell to appellee that portion of his land lying east of the fence, by the acre, at ninety dollars per acre, and that it was surveyed before the deed was made. In measuring the south boundary line, however, a mistake was made, and it was get down at three hundred and thirty-two varas in length
The appellant brought the suit in the court below in the form of an action of trespass to try title, claiming two tracts of land, one of which it is to be presumed embraces the land or a part of the land, included by the course and distance called for in his deed to appellee.
Defendant disclaimed as to all the land sued for by plaintiff except that described in his deed, to which he set up the conveyanee in controversy as title. The court found the facts substantially as have been stated and gave judgment for the defendant for the land claimed by him and for his costs.
Appellant contends that the surveyor, in running the lines of the tract preliminary to the sale, having followed as its west boundary the line which is three hundred varas west of the east boundary, thereof, and the parties having intended a transfer of only so much of the land, this survey so actually made should govern; and in support of his position invokes the rule, that in case of conflicting calls the footsteps of the surveyor must be followed. But we are of opinion the rule does not apply to the case made in the court below. Here there is no conflict in th® calls. There being no evidence that plaintiff had a corner threiti hundred varas west of the southeast corner of the tract in
Defendant’s deed being sufficient to convey the land in controversy and the equities growing out of the mistake having been adjusted between the parties, defendant was clearly entitled to a judgment. But appellant claims that because appellee pleaded only his conveyance in answer to the action, he should not have been permitted to show the subsequent parol agreement. But we hold the deed sufficient upon its face to defeat plaintiff’s suit. If the latter had the right without special pleading to show that the land in controversy was embraced in the conveyance by mistake, we think it clear that defendant was entitled without additional pleading to show that plaintiff had
There is no error in the judgment, and it is affirmed.
Affirmed.
Opinion delivered January 10, 1888.