Bast v. Alford , 20 Tex. 226 ( 1857 )

Roberts, J.

This is a suit for a specific performance of a contract for the sale of land. The principal grounds of defence relied on at the trial, seem to have been, that the bond was not fully executed by delivery, and that there was no consideration paid for the land. Upon both of these points the evidence was conflicting. The charge of the Court, though generally both correct and explicit, was somewhat confused upon the subject of the execution of the bond. Without being erroneous, it did not present to the jury a clear view of the law, and it was therefore incumbent on the appellee to have supplied the deficiency, by asking a charge to be given to the jury, directing their -attention to the necessity of a delivery of the bond to complete its execution, and to the facts which would have constituted a delivery. Having failed to do this, he has no right to complain of the charge, unless it had been positively erroneous, or in its terms calculated to mislead the jury. We cannot say that it was obnoxious to either of these errors.

It is assigned for error that the verdict of the jury was contrary to the law and the evidence.

The plaintiff’s amended petition sets out a survey of the land, alleged to be sold, giving the length of the lines and the respective corners of the tract with bearing trees; so as to include seventy-five acres, in the shape indicated by the stipulations of the bond. The jury having found generally for the plaintiff, the decree was rendered by the Court for the land in accordance with the field-notes set forth in the petition.

There was no evidence that these field-notes constituted a correct survey of seventy-five acres; and therefore the verdict and decree are unsupported by evidence. If the decree had given only the length of the lines with the courses, then it may have been determined to be correct by a calculation, showing that a tract bounded by such lines would be just seventy-five acres. But the verdict, by affirming the field-notes in the amended petition, and also the decree, rendered in accordance with the verdict, established to the tract certain corners with bearing trees.

Now suppose these corners should happen to be farther apart than the lines call for, (by which the survey would contain more than seventy-five acres,) which would control in determining the land conveyed by this decree, the length of the lines, or the corners, which are fixed by natural objects such as bearing trees ? As the latter must control, there is no evidence in this case showing that too much land has not been decreed for plaintiff. Judgment is reversed and cause remanded.

Reversed and remanded.