Edwards v. Smith

Maltbie, Judge.

The question in this case is as to the boundary of out lots four and five, division E, of the city of Austin. The lots have a common boundary. Appellants own lot four and appellees own lot five. There are no field notes to these lots. They were first sold by the Comptroller, acting for the State of Texas, according to a map which he had and exhibited at the sale in 1851. This map was a copy of a map made in 1840, which is now in the land office, but is obliterated to such an extent that the boundary of these lots can not be ascertained from it. There is a map in the land office which purports to be a copy of the old map of 1840, which is in use in that office, and which the officials recognize as correct, but it seems that no one has tested its accuracy by a comparison with the map of 1840. The map used by the Comptroller is missing. The land office maps and two private maps, one of which was in use by the city officials of Austin, were evidence in this case.

The land sued for was described in plaintiff’s petition as being in the city of Austin, county of Travis, and State of Texas, and as being “all of lot number five in division E in the government tract adjoining the city of Austin, and patented to Hutson Aiken, assignee of Sebron G. Sneed, on the seventh day of July, 1851, patent number one hundred and ninety-three, volume two, as will more fully appear by reference to the plan of said tract on file in the general land office of Texas.” There was no further description. The defendants, Fisher, Holdstock and Sheldon, specially excepted to this description of the property sued for, because it did not sufficiently identify the same, so that the possession thereof could be delivered to the successful party in this suit. The court overruled this exception, and defendants took their bill of exceptions. It does not appear from this pleading that the land can -not be identified from the description given, and for this reason there was no error in overruling the exception.

Nor was there error in admitting in evidence the certificate of the Comptroller, showing, among other things, that lot No. 4-contained six and a quarter acres and lot No. 5 seven acres, according to report of sale made by the Comptroller, over objection that there was no authority in law for the comptroller to keep such a record, and that the patent was the best evidence of such boundary. It. was the duty of the Comptroller to cause the tract of land, embracing the lots in question, which at that time belonged to the State of Texas, to be laid off in lots of convenient size, and to sell the same at his office, and to pay the money arising therefrom into the State treasury. (Act of 1850, pp. 8 and 9.)

This act does not require an account of the sale to be kept; but the act of April 11, 1846, Paschal’s Digest, 926, article 5416,, does require the Comptroller to keep and state all accounts in which the State may be interested. The boundary of these lots being in dispute their area was a circumstance for the consideration of the jury, and the lots having no field notes the area, it would seem, could not be ascertained from the patent, and could only be shown from the Comptroller’s report of the sale.

It is insisted that the court erred in charging the jury that the defendants would be bound by any agreed boundary line that the former owners of lots 4 and 5 may have made, because Francis T. Burlage was in possession of the land in controversy at the time she sold to defendant Fisher and others, and appeared to be the owner; and the evidence in this case does not show that defendants had any notice of an. agreed line between any previous owners of lots 4 and 5, if any was ever made. There is no question but that the charge given is, as a general rule, correct, and that it was applicable to all the defendants in this suit, except the defendant Fisher, who seeks to escape from its operation on the ground that he is an innocent purchaser without notice. The only fault of this part of the charge, if there is any, is that the court failed to give all of the law applicable to this case. This is simply an omission. There was no request for any additional instructions, and the rule is firmly established that the Supreme Court will not reverse a case for a failure to charge all of the law applicable to it, when the attention of the trial court is not called to the omission.

There was a conflict in the evidence as to the width of the strip of land in controversy, the witnesses placing it all- the way from one hundred and sixty to two hundred and ten feet. The pleading only described lot 5, which had no field notes, and the jury found a general verdict for the plaintiffs, upon which the court rendered a judgment describing lot 5 by metes and bounds, so as to include a strip two hundred and two feet in width as the land in controversy. The judgment must follow the verdict. In this case the verdict did not authorize a judgment for lot 5, which would leave the parties as they were before any suit was instituted. It would be the better practice in boundary line cases that the petition set out the land in dispute by metes and bounds; otherwise, it becomes necessary for the verdict to describe the land found by the jury.

For the error indicated, the judgment should be reversed and the cause remanded.

jReversed and remanded.

Opinion adopted June 5, 1888,

Stayton,

Chief Justice.