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another partition, and each of us had to loose that the judgment was void, because the suit some land to make up the interest of this had already been determined at tile preced. other heir, and they ignored my deed from | ing term of court by a final judgment thereShapard entirely. In this second partition | in, and the court had no further jurisdiction the court set apart to me the part of the of the cause. A preliminary injunction was Edwards league of land conveyed to me by granted, but, upon trial, the injunction was Mr. Shapard. The land sold to me by Shap dissolved, and judgment was rendered in ard is the same land that Dr. Brown is now favor of the defendant. Upon examination suing for." Notwithstanding the statement by us of the grounds of error in the judgof the witness that the deed from Shapard ment of the court below assigned by the apwas ignored entirely, it is very clear that the pellant, and relied on for a reversal of the defendants were holding the land in contro judgment, we are of the opinion that it ought versy at least as tenants in common under to be affirmed. the Shapard deed, and that the identical land

Conclusions of Fact. was set apart to them in the partition, which was proper, if it could be done with due re So far as pertinent to the disposition of the gard to the rights of others. We think, there case, the following facts were shown on the fore, that the contention in the motion for trial; (1) On the 23d day of October, 1891, rehearing that there was a want of title in a judgment was entered in the district court the Taylors sufficient to support the plea of of Panola county in cause No. 2,753, "Mary five-years limitation is not sustained by the | C. Smith et al., Plaintiffs, v. H. Cadenhead et evidence. There is a privity of title between al., Defendants," which appellant contends the Shapard deed and the partition. The was a final judgment. Said judgment set inotion for rehearing will be overruled. out at length an agreement made between the

plaintiffs and the defendants Perry Liston and Dan Briggs, from which it appeared that the defendants Briggs and Liston had sepa

rately filed answer, and disclaimed as to the REED v. LISTON.

land sued for, except certain tracts therein (Court of Civil Appeals of Texas. Sept. 20, described. A proviso was made in the agree1894.)

ment, which was a part of the judgment, TresPASS TO TRY TITLE_FIXAL JUDGMENT that the settlement should in no wise affect ORDER OF Evidence.

the right of plaintiffs to recover against Lis1. A judgment in an action of trespass to ton the 50 acres of land conveyed to him by try title, which does not dispose of all the de J. F. Reed. It may be inferred that, as to fendants, nor of all the subject-matter of the

Liston and Briggs, plaintiffs were to recover controversy, is merely interlocutory, and the court has jurisdiction to render the final judg

the balance of the land. The judgment then ment at the succeeding term.

proceeds to award judgment against the 2. Where a case is tried without a jury, plaintiffs in favor of Briggs and Liston, sepaand, before the conclusion of the argument, it is adjourned for two weeks, other court busi

rately, for the tracts described in the agree ness intervening, it is not error to permit a wit

ment, and closes as follows: "The said Dan ness to be recalled, if an opportunity is given Briggs and Perry Liston having disclaimed to rebut his testimony.

as to all of the land sued for by plaintiffs Appeal from district court, Panola county; save and except the three tracts above deW. J. Graham, Judge.

scribed, it is considered, ordered, and adAction by J. F. Reed against Perry Liston judged that they go hence without day, and for an injunction. There was a judgment recover of the plaintiffs their costs in this for defendant, from which plaintiff appeals. behalf expended, and that the defendants Affirmed.

Liston and Briggs be forever quieted in their

title and possession of the lands herein adDrury Field, for appellant. J. G. Hazel

judged to them.” There are no pleadings bewood and E. A. Hull, for appellee.

longing to said suit in evidence. (2) At the

next succeeding term of court, on April 11, GARRETT, C. J. J. F. Reed, the appellant, 1892, another judgment was entered in said brought this suit to enjoin the execution of a cause, which finally awarded judgment in judgment obtained against him by the ap- favor of plaintiffs for the land against all of pellee, Perry Liston, in the district court of the defendants, except as against Liston, Panola county, in an action of trespass to Briggs, and H. Cadenhead; but, as to the try title, upon the warranty of Reed to Lis 50 acres, it appears that plaintiff recoverton of title to land recovered of Liston in ed and Liston recovered over against Reed said suit. Plaintiff alleged that the judgment upon his warranty. This judgment recites sought to be enjoined was obtained as a re that it is a correction of a judgment previoussult of a fraudulent combination between the ly entered upon the same day, which also applaintiffs and defendants in said suit, and pears in the record. (3) The three judgment misrepresentations made to counsel for plain entries above mentioned are all set out in full tiff herein, by which he was caused to be in the statement of facts, and are adopted as absent from the court at the term at which a part of these conclusions for reference, if the judgment was taken. He also alleged | deemed necessary.

v.27s. W.no.17-58

Conclusions of Law.

| traux to the other defendants, they indorsing 1. The judgment entered on the 23d Oc

the notes, and becoming liable for the debt. tober, 1891, in cause No. 2,753, did not dis

The defendants pleaded that J. M. Doughty, pose of all of the defendants, nor of all the

Sr., had sold to Cottraux, in addition to his subject-matter of the controversy, and was

own interest in the land, an undivided onenot a final judgment, but only an interlocu

| fourteenth, which belonged to his minor son, tory judgment; hence the court was not with

J. M. Doughty, Jr., and had undertaken to out jurisdiction to render a final judgment in

institute at the next ensuing term of the said cause at the next term of the court.

court, or as soon as practicable, a suit for 2. There is no merit in the third assign

partition, having for its object the sale and

acquisition of the minor's interest, and that, ment of error, with respect to the action of the court in reopening the case after it had

in order to secure the performance of this been under advisement for two weeks, and

obligation, Doughty had executed to Cottraux hearing material eviderce, over the objec

| his obligation in the sum of $1,000, condition of plaintiff. The case was tried without

tioned upon the performance of the under

taking; that the purchase money of the land, a jury, and it appears from the bill of exception that, before argument was concluded,

including the minor's part, was $7,000, one

third of which was paid in cash, and for the the time for taking up the criminal docket

remaining two-thirds of which the notes sued arrived, and the case was postponed for two weeks, when defendant was permitted to re

on were given. Breach of the bond of call a witness. In response to plaintiff's ob

Doughty was charged, and there was a jection, the court offered to entertain a mo

prayer for the rescission of the contract, and,

in the alternative, in case rescission be not tion for a postponement, to enable plaintiff

allowed, for the amount of the bond. At to procure rebutting testimony; but counsel stated that it would do no good, as his client

the trial, after the plaintiffs had introduced knew nothing about the matter, and could

in evidence the notes sued on and the deed

from Doughty to Cottraux, the bond of offer nothing in rebuttal. 3. The remaining assignments are too gen

Doughty to Cottraux, substantially as plead

ed, was read in evidence. No direct evidence eral to require consideration. Affirmed.

of a breach of the bond was offered, but it appears that plaintiffs offered evidence to show reasons why Doughty, and his heirs after

his death, had not complied with the underDOUGHTY et al. v. COTTRAUX et al. taking; there being no contention, either in (Court of Civil Appeals of Texas. Sept. 20, the pleadings or evidence, that either he or 1894.)

his heirs bad performed the obligation asSALE OF LANDS — ACTION FOR PURCHASE PRICE sumed by the bond. The court rendered SET-OFF-EVIDENCE.

judgment for the amount of the notes, in1. Plaintiff sold defendant certain lands,

cluding attorney's fees, for which they stipugiving a warranty deed therefor, and including therein an undivided interest of a minor

lated in the event of suit, less the sum of child. Contemporaneously he executed a bond $1,000, the amount of the bond, which was conditioned to institute a suit for partition to

allowed defendants as a credit. acquire the minor's interest. The minor's interest was never acquired. Ield that, in an

The record does not show that any ruling action for the purchase money, defendant could upon the exceptions to the answer was made, offset the value of such undivided interest.

and the first and second assignments of error 2. The fact that the guardian of the minor was a party plaintiff, and that the minor might

cannot be considered. be estopped by a judgment in his favor for the The proposition of appellants' counsel to price of his interest from thereafter claiming the effect that a purchaser of land, who has the land, was immaterial.

bought under a warranty deed, with notice 3. In an action for the price of land sold, the reason why the grantor did not acquire an

of defects in the title, cannot defend against outstanding interest as agreed is immaterial. the notes given for purchase money before Appeal from district court, Aransas county;

eviction, but must pay them, and rely upon

the warranty, has no application to the case. S. F. Grimes, Judge. Action by J. Doughty and others against

The defense here is based upon the express

agreement of the vendor, by which he agreed, Joe Cottraux and others. There was judg

in a certain way, and as soon as practicable, ment for plaintiffs for part of the amount

to obtain for the vendee the outstanding claimed, from which they appealed. Re

title. No question as to the legality of this versed.

agreement has been made; and, whether it W. H. Baldwin and McFarland, Elgin & could be upheld in its entirety or not, we McFarland, for appellants. M. J. Hathaway |

think it evidences the intention of the parand Er A. Stevens, for appellees.

ties that Cottraux was not to pay for the

whole of the land, unless he should obtain WILLIAMS, J. Siit by appellants, as | the minor's interest. The instruments are heirs of J. M. Doughty, deceased, upon notes to be read together, and form the contract. given by defendant Cottraux for part of the It being virtually conceded in the pleadings purchase money of land rought by him from of the plaintiffs and in the conduct of the Doughty, and subsequently conveyed by Cot- / trial that neither Doughty, before his death, nor his heirs, after his death, had caused the contemplates that sales of the property of title of the one-fourteenth part which be- | minors shall not be made except when neclonged to the minor to be vested in Cottraux, essary for specified purposes, through prohe was entitled to a proper deduction from ceedings carefully devised for their protecthe purchase money. The fact that the tion; and that, when sold, it shall be made guardian of the minor was a party plaintiff to bring the largest price that can be obto this suit, seeking judgment upon the notes tained. To uphold such contracts as that for the purchase money of the interest of his in question would tend to the defeat of the ward in the land, should not, we think, be objects of the law and to the detriment of allowed to defeat the defense. The propo- | the minors' estates. Specht v. Collins, 81 sition that a judgment rendered in favor of Tex. 213, 16 S. W. 934. If this be true, it the guardian for the benefit of the minor for was evidently beyond the power of the plainthe purchase money would have estopped the tiffs ever to convey to Cottraux or his venlatter from afterwards claiming the land dees the title to the minor's property. Bemay be conceded for the purposes of the sides, three terms of the court elapsed before argument. It does not follow that a court Doughty's death, and more than two years ought to render such a judgment. The law | elapsed after the contract was made before provides the methods by which minors may this suit was brought. be divested of title to their property. If it But we think there was error in allowing be true that by such a judgment as appel- the defendants the whole amount of the lants claim should have been rendered in bond as stipulated damages. The sum this case the minor would have been de named in the bond was a penalty, and was prived of his land without the supervision of not agreed on as ascertained damages. If it the probate court, provided for that purpose, were, and it is true that the undertaking of that fact was a good reason for denying the Doughty was illegal, no recovery could be judgment. Guardians should not be allowed had by Cottraux for its breach. But, as in this indirect way to pass away the title before stated, the contract, in substance, into the property of their wards. The fact dicates that the $7,000 was the price of the that the guardian was a party to the suit whole of the property, and that all of it was was not, therefore, an answer to the de not to be paid unless all of it should be fenses. The title was still in the minor, and obtained. The deduction to which defendnot in the defendants; and if it be true that ants are entitled is one-fourteenth of the it was within the power of the court to pass purchase price, or $500. The judgment will it indirectly to defendants by a judgment be reversed, and here rendered for plaintiff's which would estop the minor from after for the amount of the notes, with 10 per cent. wards asserting it (which we need not de attorney's fees, less that sum to be deducted, cide), it was entirely proper for the court to as of the date of the sale, and for a foredecline to render that judgment.

closure of the lien on thirteen-fourteenths of The exclusion of the evidence as to the the land. Reversed and rendered. reasons why Doughty, during his life, and the guardian, after his death, had not carried out the undertaking of the former in obtaining the title of the minor, was not

KNIPPA et al. v. UMLANG. error. In the first place, no such facts were pleaded, and could not, therefore, have been

(Court of Civil Appeals of Texas. Sept. 26, properly considered by the court if admitted.

1894.) Secondly, the plaintiffs were seeking a judg. DISPUTED BOUNDARY-Lost CORNERS-RELOCAment for the purchase money of all of the

TION. land, without having complied with the con 1. On an issue as to the boundary between tract. The reasons why they had not done

two surveys, none of whose original corners can

be found, where but one corner of an adjacent So were immaterial to the issue, when they

survey on the north and one corner of a survey still were not in a position to perform, and on the south are found, and the distance between were not offering to do so, but were at the

such corners is in excess of that called for by

the field notes, the boundary in question should same time demanding complete performance

be determined by apportic ning such excess to on the part of the defendants. Thirdly, we the two surveys whose corners are found, and are strongly inclined to the view that measuring the distance called for in the field Doughty's undertaking was illegal, as against

notes from the line thus ascertained on the

north. public policy, and could not lawfully have 2. A case tried by the court will not be re- . been carried out. It bound him, the father versed for admission of improper testimony, but of the minor, and the person first entitled to

such error will be remedied on appeal by dis

regarding such testimony. the guardianship, to carry through some

3. The location of original corners by a court a proceeding which should result in subsequent survey is not conclusive where such transferring to Cottraux the title to the location is not based on an actual discovery of minor's property. It was, of course, to the

then existing corners. interest of both Cottraux and Doughty that Appeal from district court, Uvalde county; the property, when thus sold, should not | W. W. Martin, Special Judge. yield a greater price than that which Cot- Action between George Knippa and others traux agreed to pay Doughty. The law | and Edward Umlang to determine a disputed

bonndary. From a judgment locating such that surreyor's work for the survey 655 or surboundary, George Knippa and others appeal. vey No. 666. Then spaces were utilized in Affirmed.

1856 by another surveyor, F. Giraud, who lo

cated the Delgado and Douthet certificates 0. Ellis and Tarleton & Altgelt, for appel

thereon. The cause was tried by the court lants. Clark & Fuller, for appellee.

without a jury, and the main facts found by

the judge are that no original corners are JAMES, C. J. In January, 1847, William identified in reference to these surveys exLindsey, surveyor, located a number of con- cept the northwest corner of the Delgado tiguous surveys on the Frio river, embodying and the southwest corner of the Mullins surhis work in a sketch, a copy of which, certi. vey 671; that there is nothing found in the fied from the general land office, so far as it ground to define the lines of any of the suraffects the boundary in question, is attached veys; and that the actual distance between to this opinion. All of the surveys shown said known corners is 1,113 varas in excess

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on the plat (except surveys 666 and 670, which were certified to have been surveyed in December, 1816) were surveyed between January 6 and January 12, 1847. The matter in dispute is the location of the division line between the Bridges survey No. 657, and the Roberts survey 639, appellee claiming part of the Bridges and appellants the Roberts.

The petition was not subject to demurrer, as claimed by the first assignment. It is necessary to explain here that no field notes were returned to the land office in connection with

of the distance called for in the field notes of the intervening surveys. The boundary in question was arrived at by apportioning to the Delgado and Bridges surveys their ratable part of this excess, and placing the line in question at such distance from the Delgado north line.

If the proper effect to be given the testimony is in accord with the above conclusions, the conclusion of law that the ercess should be so distributed is unquestionably sound. Welder v. Carroll 29 Ter.

318. Before examining the testimony for west corner is not found, and no person tes. the purpose of testing the correctness of tifies to having seen it at the place designated the conclusions of fact, we may remark by Giraud. We are asked to receive what that the admission of improper testimony Giraud certifies in his field notes as to the will not operate to reverse the judgment, existence of the bearing trees at his souththe cause having been tried by the judge, west corner of the Delgado as evidence of and, if improper, we may remedy the er- that fact. In the first place, the bearing ror by not considering it. It is urged by trees are not identical with those called for appellants that, the northwest corner of the by Lindsey, as they appear in this record. Delgado being found, this survey and the In the second place, it does not appear that Bridges are properly established, and all Giraud had been in a position to know the their calls satisfied, by surveying out their corner made by Lindsey; and his act, seven distance to the south from that corner, and years later, as to the identity of the corner, where this would place the south line of the was doubtless his opinion merely, and, if not Bridges is where appellants claim it should wholly incompetent, is certainly not entitled be. If the court correctly found the facts, to controlling effect, standing alone. In the this rule would result in the tier of surveys third place, it appears that Giraud, about the being so constructed as to leave a vacancy same time,-in 1851,-placed a survey known of 1,113 varas between survey 669 and the as the “B. Thomas Survey No. 1,101" at the Mullins survey No. 671, or in giving the Mul- southeast corner of the Bridges survey, and lins the benefit of the entire excess, either of calling for such corner. This Thomas survey which would be clearly wrong. If the two is well defined on the ground. The surveyor corners mentioned by the court are the only was evidently in error concerning the posicorners found, it may with as much reason tion of the southeast corner of the Bridges, be claimed that the south line of the Bridges for by running the south line of the Bridges should be arrived at by surveying from the from that point the southwest corner of the Mullins corner, which would result in said Bridges would be placed several hundred line being placed much further south from varas south of where the court, after adding the Delgado corner than the judgment bas to the Bridges its share of the excess, fixed placed it. Both parties seem to question the the south line. This is not a result that finding that the said two corners afford the would seem to be correct, or even reasonable. only means of arriving at the position of in- It does, however, induce the conclusion that termediate lines of the surveys. Appellants Giraud's work was not based on actual disclaim that there is in the R. B. Durst survey covery of then existing corners made by No. 664, which was made by Lindsey, in- Lindsey, and we think the court very properdubitable evidence of its north and south ly declined to be governed by what Giraud's lines, on account of the proximity of the fork field notes indicate in reference to the origof the Main Frio and West Frio, the south inal corners, where they were not otherwise line from the field notes showing to be 400 verified. Appellee contends that the northvaras and the north line to be 1,300 varas east corner of the Douthet survey was found from creek to creek, and that by this means and clearly identified by the evidence, and, the south line of the Rodermal survey, op- as the evidence shows that from the point so posite, can be fixed with certainty, and con- identified to the southwest corner of the Mulsequently no excess should be considered ex- lins there is a surplus in distance of not more cept that between the south line of the Rod- than 8 varas, the entire surplus, less 8 varas, ermal and north line of the Bridges. This should be apportioned only among the tracts would be correct if it were not for evidence lying north of such Douthet corner, which going to show that the junction of these would throw the south line of the Bridges creeks had changed, and that formerly it was further south than where the judgment considerably further south than where now places it about 37 varas. While witnesses found. Nor is the evidence satisfactory con- testify to recognizing the original northeast cerning the corners of the Durst. Appel- corner of the Douthet, their evidence does not lants insist that no part of an excess should necessarily relate to any corner made by be added to the C. Delgado survey, because Lindsey. The surveyor of the Douthet was its southwest corner was identified. They Giraud in 1854, and he does not call for any say that “the original lower corner of said corner that appears to be identical with any survey as the upper corner of the Bridges made by Lindsey. These witnesses, theresurvey was still standing when Giraud made fore, doubtless had reference to Giraud's corhis survey, and it was 2,635 varas from the ners, and the court did not err in refusing to upper original corner." Giraud made the give the evidence touching the northeast Delgado survey about seven years after Lind- corner of the Douthet the weight attached to sey had been there. We can know that it by appellee. We cannot say there was Giraud was at and made no mistake as to error in the conclusions of fact, and, the the southwest corner of the west survey (the court having applied the proper rule of law north west corner of Delgado), as Lindsey's to the facts found, we will affirm the judg. corner is there to verify it. But the south- ment.

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