Bird v. Pace , 26 Tex. 487 ( 1863 )

Moore, J.

The appellant brought suit to try title and recover.possession of a league of land, granted in the year 1831, to James Ford; by an amendment to the petition he averred that the southern boundary line of his land, described in the original petition, was about sixty varas north of the dwelling house of the appellee, Pace, and embraced most of the land in cultivation by him, together with his gin-house and other improvements, &c., and prays, in addition to his original petition, that said southern boundary line should be more clearly defined, and established to run as alleged by him. The appellees pleaded not guilty, the statute of limitations, possession in good faith, and, also, that the northern boundary of the Hodge league ,was the southern boundary of the Ford league, and that the division line between said leagues, when run according to the field-notes in the original grants, includes in the Hodge league the lands in cultivation and improvements made by the appellee Pace; and, also, asked that the true boundary line between thg leagues should be decreed by the court to run as alleged by them. A jury was waived by consent, and the issues were submitted to the court, who, after hearing the evidence, gave judgment dismissing the petition, and decreeing the boundary line between the parties as claimed by the appellees.

There was no question, on the trial, as to the validity of the grants under which the parties respectively derive title. The only issue between them was whether the land in dispute was embraced in the grant to Ford or Hodge. Each party introduced evidence tending to establish that the locality of the dividflag line between the grants corresponded with their respective allegations. Under these circumstances, although the court has never regarded the finding of the court below, on questions of fact, as entitled to altogether the same weight, as the verdict of a jury; we do not feel called upon to reverse the judgment, unless it was„manifestly ■erroneous. It is not sufficient that the evidence admits of a different conclusion from that at which the court below arrived. Nor that some of the reasons given by the court for its decree, may not be supported by, or may be Contrary to, the weight of evidence. There was a conflict in the testimony, and it is by no means clear, to say the least of it, that the judgment was not in accordance with the weight of evidence on the question at issue.

It is intimated by appellant, (though not directly alleged,) that the declarations and admissions of Ford, before the sale by him of the league of land claimed by appellant, relied upon by appellees to establish the beginning corner of the Ford league, were inadmissible for this purpose, upon the ground that a survey cannot be altered or controlled by parol testimony. But the testimony was not introduced for the purpose of changing the survey; but to enable the court to determine what were the true boundaries of the survey as made. For this purpose it was unquestionably admissible. In many courts it has been held that even hearsay testimony may be received with a like view. (1 Greenl. Ev., sec. 145, note 1.) But if the testimony was objectionable, appellant not having excepted to it upon the trial below, cannot now be heard to do so.

It is also insisted that the court erred in finding by its decree the division line between the leagues of land respectively claimed by the parties. It may be questioned whether the decree goes beyond the judgment, that may be appropriately rendered, in an ordinary action of trespass td try title, involving facts similar to those presented in the present controversy. But if it does, still appellant has no grounds of complaint on this account."' By his amended petition he alleged a necessity for a decree of the court fixing the boundary between the two surveys, and prayed that it might be made. No exceptions were taken by the appellees, either to the allegations of the petition, or-the prayer; but on the contrary, they amended their answers, and invited of the court the like action. It is argued that the decree of the court, fixing the boundary between the two leagues, may bar or estop appellant from bringing a second action to try the title to the land in dispute, but this question is not involved in the case now before us, and it is not, therefore, one on which, at present, it is proper that we shall express any opinion. There is no error apparent in the record, and the judgment is therefore affirmed.

Judgment affirmed.