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another partition, and each of us had to loose some land to make up the interest of this other heir, and they ignored my deed from Shapard entirely. In this second partition the court set apart to me the part of the Edwards league of land conveyed to me by Mr. Shapard. The land sold to me by Shapard is the same land that Dr. Brown is now suing for." Notwithstanding the statement of the witness that the deed from Shapard was ignored entirely, it is very clear that the defendants were holding the land in controversy at least as tenants in common under the Shapard deed, and that the identical land was set apart to them in the partition, which was proper, if it could be done with due regard to the rights of others. We think, therefore, that the contention in the motion for rehearing that there was a want of title in the Taylors sufficient to support the plea of five-years limitation is not sustained by the evidence. There is a privity of title between the Shapard deed and the partition. The motion for rehearing will be overruled.

REED v. LISTON.

(Court of Civil Appeals of Texas. Sept. 20, 1894.)

TRESPASS TO TRY TITLE-FINAL JUDGMENTORDER OF EVIDENCE.

1. A judgment in an action of trespass to try title, which does not dispose of all the defendants, nor of all the subject-matter of the controversy, is merely interlocutory, and the court has jurisdiction to render the final judgment at the succeeding term.

2. Where a case is tried without a jury, and, before the conclusion of the argument, it is adjourned for two weeks, other court business intervening, it is not error to permit a witness to be recalled, if an opportunity is given to rebut his testimony.

Appeal from district court, Panola county; W. J. Graham, Judge.

Action by J. F. Reed against Perry Liston for an injunction. There was a judgment for defendant, from which plaintiff appeals. Affirmed.

Drury Field, for appellant. J. G. Hazelwood and E. A. Huli, for appellee.

GARRETT, C. J. J. F. Reed, the appellant, brought this suit to enjoin the execution of a judgment obtained against him by the appellee, Perry Liston, in the district court of Panola county, in an action of trespass to try title, upon the warranty of Reed to Liston of title to land recovered of Liston in said suit. Plaintiff alleged that the judgment sought to be enjoined was obtained as a result of a fraudulent combination between the plaintiffs and defendants in said suit, and misrepresentations made to counsel for plaintiff herein, by which he was caused to be absent from the court at the term at which the judgment was taken. He also alleged v.27s.w.no.17-58

that the judgment was void, because the suit had already been determined at the preceding term of court by a final judgment therein, and the court had no further jurisdiction of the cause. A preliminary injunction was granted, but, upon trial, the injunction was dissolved, and judgment was rendered in favor of the defendant. Upon examination by us of the grounds of error in the judgment of the court below assigned by the appellant, and relied on for a reversal of the judgment, we are of the opinion that it ought to be affirmed.

Conclusions of Fact.

So far as pertinent to the disposition of the case, the following facts were shown on the trial: (1) On the 23d day of October, 1891, a judgment was entered in the district court of Panola county in cause No. 2,753, "Mary C. Smith et al., Plaintiffs, v. H. Cadenhead et al., Defendants," which appellant contends was a final judgment. Said judgment set 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 separately filed answer, and disclaimed as to the land sued for, except certain tracts therein described. A proviso was made in the agreement, which was a part of the judgment, that the settlement should in no wise affect the right of plaintiffs to recover against Liston the 50 acres of land conveyed to him by J. F. Reed. It may be inferred that, as to Liston and Briggs, plaintiffs were to recover the balance of the land. The judgment then proceeds to award judgment against the plaintiffs in favor of Briggs and Liston, separately, for the tracts described in the agree ment, and closes as follows: "The said Dan Briggs and Perry Liston having disclaimed as to all of the land sued for by plaintiffs save and except the three tracts above described, it is considered, ordered, and adjudged that they go hence without day, and recover of the plaintiffs their costs in this behalf expended, and that the defendants Liston and Briggs be forever quieted in their title and possession of the lands herein adjudged to them." There are no pleadings belonging to said suit in evidence. (2) At the next succeeding term of court, on April 11, 1892, another judgment was entered in said cause, which finally awarded judgment in favor of plaintiffs for the land against all of the defendants, except as against Liston, Briggs, and H. Cadenhead; but, as to the 50 acres, it appears that plaintiff recovered and Liston recovered over against Reed upon his warranty. This judgment recites that it is a correction of a judgment previously entered upon the same day, which also appears in the record. (3) The three judgment entries above mentioned are all set out in full in the statement of facts, and are adopted as a part of these conclusions for reference, if deemed necessary.

Conclusions of Law.

1. The judgment entered on the 23d October, 1891, in cause No. 2,753, did not dispose of all of the defendants, nor of all the subject-matter of the controversy, and was not a final judgment, but only an interlocutory judgment; hence the court was not without jurisdiction to render a final judgment in said cause at the next term of the court.

2. There is no merit in the third assignment of error, with respect to the action of the court in reopening the case after it had been under advisement for two weeks, and hearing material evidence, over the objection of plaintiff. The case was tried without a jury, and it appears from the bill of exception that, before argument was concluded, the time for taking up the criminal docket arrived, and the case was postponed for two weeks, when defendant was permitted to recall a witness. In response to plaintiff's objection, the court offered to entertain a motion for a postponement, to enable plaintiff to procure rebutting testimony; but counsel stated that it would do no good, as his client knew nothing about the matter, and could offer nothing in rebuttal.

3. The remaining assignments are too general to require consideration. Affirmed.

DOUGHTY et al. v. COTTRAUX et al. (Court of Civil Appeals of Texas. Sept. 20, 1894.)

SALE OF LANDS ACTION FOR PURCHASE PRICESET-OFF EVIDENCE.

1. Plaintiff sold defendant certain lands, giving a warranty deed therefor, and including therein an undivided interest of a minor child. Contemporaneously he executed a bond conditioned to institute a suit for partition to acquire the minor's interest. The minor's interest was never acquired. Held that, in an action for the purchase money, defendant could offset the value of such undivided interest.

2. The fact that the guardian of the minor was a party plaintiff, and that the minor might be estopped by a judgment in his favor for the price of his interest from thereafter claiming the land, was immaterial.

3. In an action for the price of land sold, the reason why the grantor did not acquire an outstanding interest as agreed is immaterial.

Appeal from district court, Aransas county; S. F. Grimes, Judge.

Action by J. Doughty and others against Joe Cottraux and others. There was judgment for plaintiffs for part of the amount claimed, from which they appealed. Reversed.

W. H. Baldwin and McFarland, Elgin & McFarland, for appellants. M. J. Hathaway and E. A. Stevens, for appellees.

WILLIAMS, J. Suit by appellants, as heirs of J. M. Doughty, deceased, upon notes given by defendant Cottraux for part of the purchase money of land bought by him from Doughty, and subsequently conveyed by Cot

traux to the other defendants, they indorsing the notes, and becoming liable for the debt The defendants pleaded that J. M. Doughty, Sr., had sold to Cottraux, in addition to his own interest in the land, an undivided onefourteenth, which belonged to his minor son, J. M. Doughty, Jr., and had undertaken to institute at the next ensuing term of the court, or as soon as practicable, a suit for partition, having for its object the sale and acquisition of the minor's interest, and that. in order to secure the performance of this obligation, Doughty had executed to Cottraux his obligation in the sum of $1,000, conditioned upon the performance of the undertaking; that the purchase money of the land, including the minor's part, was $7,000, onethird of which was paid in cash, and for the remaining two-thirds of which the notes sued on were given. Breach of the bond of Doughty was charged, and there was a prayer for the rescission of the contract, and, in the alternative, in case rescission be not allowed, for the amount of the bond. At the trial, after the plaintiffs had introduced in evidence the notes sued on and the deed from Doughty to Cottraux, the bond of Doughty to Cottraux, substantially as pleaded, was read in evidence. No direct evidence of a breach of the bond was offered, but it ap pears that plaintiffs offered evidence to show reasons why Doughty, and his heirs after his death, had not complied with the undertaking; there being no contention, either in the pleadings or evidence, that either he or his heirs had performed the obligation assumed by the bond. The court rendered judgment for the amount of the notes, including attorney's fees, for which they stipulated in the event of suit, less the sum of $1,000, the amount of the bond, which was allowed defendants as a credit.

The record does not show that any ruling upon the exceptions to the answer was made, and the first and second assignments of error cannot be considered.

The proposition of appellants' counsel to the effect that a purchaser of land, who has bought under a warranty deed, with notice of defects in the title, cannot defend against the notes given for purchase money before eviction, but must pay them, and rely upon the warranty, has no application to the case. The defense here is based upon the express agreement of the vendor, by which he agreed, in a certain way, and as soon as practicable. to obtain for the vendee the outstanding title. No question as to the legality of this agreement has been made; and, whether it could be upheld in its entirety or not, we think it evidences the intention of the parties that Cottraux was not to pay for the whole of the land, unless he should obtain the minor's interest. The instruments are to be read together, and form the contract It being virtually conceded in the pleadings of the plaintiffs and in the conduct of the trial that neither Doughty, before his death,

nor his heirs, after his death, had caused the title of the one-fourteenth part which belonged to the minor to be vested in Cottraux, he was entitled to a proper deduction from the purchase money. The fact that the guardian of the minor was a party plaintiff to this suit, seeking judgment upon the notes for the purchase money of the interest of his ward in the land, should not, we think, be allowed to defeat the defense. The proposition that a judgment rendered in favor of the guardian for the benefit of the minor for the purchase money would have estopped the latter from afterwards claiming the land may be conceded for the purposes of the argument. It does not follow that a court ought to render such a judgment. The law provides the methods by which minors may be divested of title to their property. If it be true that by such a judgment as appellants claim should have been rendered in this case the minor would have been deprived of his land without the supervision of the probate court, provided for that purpose, that fact was a good reason for denying the judgment. Guardians should not be allowed in this indirect way to pass away the title to the property of their wards. The fact that the guardian was a party to the suit was not, therefore, an answer to the defenses. The title was still in the minor, and not in the defendants; and if it be true that it was within the power of the court to pass it indirectly to defendants by a judgment which would estop the minor from afterwards asserting it (which we need not decide), it was entirely proper for the court to decline to render that judgment.

The exclusion of the evidence as to the 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 error. In the first place, no such facts were pleaded, and could not, therefore, have been properly considered by the court if admitted. Secondly, the plaintiffs were seeking a judg ment for the purchase money of all of the land, without having complied with the contract. The reasons why they had not done so were immaterial to the issue, when they still were not in a position to perform, and were not offering to do so, but were at the same time demanding complete performance on the part of the defendants. Thirdly, we are strongly inclined to the view that Doughty's undertaking was illegal, as against public policy, and could not lawfully have been carried out. It bound him, the father of the minor, and the person first entitled to the guardianship, to carry through some court a proceeding which should result in transferring to Cottraux the title to the minor's property. It was, of course, to the interest of both Cottraux and Doughty that the property, when thus sold, should not yield a greater price than that which Cottraux agreed to pay Doughty. The law

contemplates that sales of the property of minors shall not be made except when necessary for specified purposes, through proceedings carefully devised for their protection; and that, when sold, it shall be made to bring the largest price that can be obtained. To uphold such contracts as that in question would tend to the defeat of the objects of the law and to the detriment of the minors' estates. Specht v. Collins, 81 Tex. 213, 16 S. W. 934. If this be true, it was evidently beyond the power of the plaintiffs ever to convey to Cottraux or his venIdees the title to the minor's property. Besides, three terms of the court elapsed before Doughty's death, and more than two years elapsed after the contract was made before this suit was brought.

But we think there was error in allowing the defendants the whole amount of the bond as stipulated damages. The sum named in the bond was a penalty, and was not agreed on as ascertained damages. If it were, and it is true that the undertaking of Doughty was illegal, no recovery could be had by Cottraux for its breach. But, as before stated, the contract, in substance, indicates that the $7,000 was the price of the whole of the property, and that all of it was not to be paid unless all of it should be obtained. The deduction to which defendants are entitled is one-fourteenth of the purchase price, or $500. The judgment will be reversed, and here rendered for plaintiffs for the amount of the notes, with 10 per cent. attorney's fees, less that sum to be deducted, as of the date of the sale, and for a foreclosure of the lien on thirteen-fourteenths of the land. Reversed and rendered.

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1. On an issue as to the boundary between two surveys, none of whose original corners can be found, where but one corner of an adjacent survey on the north and one corner of a survey on the south are found, and the distance between such corners is in excess of that called for by the field notes, the boundary in question should be determined by apportic ning such excess to the two surveys whose corners are found, and measuring the distance called for in the field notes from the line thus ascertained on the north. 2. A case tried by the court will not be reversed for admission of improper testimony, but such error will be remedied on appeal by disregarding such testimony.

3. The location of original corners by a subsequent survey is not conclusive where such location is not based on an actual discovery of then existing corners.

Appeal from district court, Uvalde county; W. W. Martin, Special Judge.

Action between George Knippa and others and Edward Umlang to determine a disputed

boundary. From a judgment locating such boundary, George Knippa and others appeal. Affirmed.

O. Ellis and Tarleton & Altgelt, for appellants. Clark & Fuller, for appellee.

JAMES, C. J. In January, 1847, William Lindsey, surveyor, located a number of contiguous surveys on the Frio river, embodying his work in a sketch, a copy of which, certified from the general land office, so far as it affects the boundary in question, is attached to this opinion. All of the surveys shown

that surveyor's work for the survey 655 or survey No. 666. Then spaces were utilized in 1856 by another surveyor, F. Giraud, who located the Delgado and Douthet certificates thereon. The cause was tried by the court without a jury, and the main facts found by the judge are that no original corners are identified in reference to these surveys except the northwest corner of the Delgado and the southwest corner of the Mullins survey 671; that there is nothing found in the ground to define the lines of any of the surveys; and that the actual distance between 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, 1846) were surveyed between January 6 and January 12, 1817. The matter in dispute is the location of the division line between the Bridges survey No. 657, and the Roberts survey 659, 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 excess should be so distributed is unquestionably sound. Welder v. Carroll, 29 Tex.

318.

Before examining the testimony for the purpose of testing the correctness of the conclusions of fact, we may remark that the admission of improper testimony will not operate to reverse the judgment, the cause having been tried by the judge, and, if improper, we may remedy the error by not considering it. It is urged by appellants that, the northwest corner of the Delgado being found, this survey and the Bridges are properly established, and all their calls satisfied, by surveying out their distance to the south from that corner, and where this would place the south line of the Bridges is where appellants claim it should be. If the court correctly found the facts, this rule would result in the tier of surveys being so constructed as to leave a vacancy of 1,113 varas between survey 669 and the Mullins survey No. 671, or in giving the Mullins the benefit of the entire excess, either of which would be clearly wrong. If the two corners mentioned by the court are the only corners found, it may with as much reason be claimed that the south line of the Bridges should be arrived at by surveying from the Mullins corner, which would result in said line being placed much further south from the Delgado corner than the judgment has placed it. Both parties seem to question the finding that the said two corners afford the only means of arriving at the position of intermediate lines of the surveys. Appellants claim that there is in the R. B. Durst survey No. 664, which was made by Lindsey, indubitable evidence of its north and south lines, on account of the proximity of the fork of the Main Frio and West Frio, the south line from the field notes showing to be 400 varas and the north line to be 1,300 varas from creek to creek, and that by this means the south line of the Rodermal survey, opposite, can be fixed with certainty, and consequently no excess should be considered except that between the south line of the Rodermal and north line of the Bridges. This would be correct if it were not for evidence going to show that the junction of these creeks had changed, and that formerly it was considerably further south than where now found. Nor is the evidence satisfactory concerning the corners of the Durst. Appellants insist that no part of an excess should be added to the C. Delgado survey, because its southwest corner was identified. They say that "the original lower corner of said survey as the upper corner of the Bridges survey was still standing when Giraud made his survey, and it was 2,635 varas from the upper original corner." Giraud made the Delgado survey about seven years after Lindsey had been there. We can know that Giraud was at and made no mistake as to the southwest corner of the west survey (the northwest corner of Delgado), as Lindsey's corner is there to verify it. But the south

west corner is not found, and no person testifies to having seen it at the place designated by Giraud. We are asked to receive what Giraud certifies in his field notes as to the existence of the bearing trees at his southwest corner of the Delgado as evidence of that fact. In the first place, the bearing trees are not identical with those called for by Lindsey, as they appear in this record. In the second place, it does not appear that Giraud had been in a position to know the corner made by Lindsey; and his act, seven years later, as to the identity of the corner, was doubtless his opinion merely, and, if not wholly incompetent, is certainly not entitled to controlling effect, standing alone. In the third place, it appears that Giraud, about the same time,-in 1854,-placed a survey known as the "B. Thomas Survey No. 1,101" at the southeast corner of the Bridges survey, and calling for such corner. This Thomas survey is well defined on the ground. The surveyor was evidently in error concerning the position of the southeast corner of the Bridges, for by running the south line of the Bridges from that point the southwest corner of the Bridges would be placed several hundred varas south of where the court, after adding to the Bridges its share of the excess, fixed the south line. This is not a result that would seem to be correct, or even reasonable. It does, however, induce the conclusion that Giraud's work was not based on actual discovery of then existing corners made by Lindsey, and we think the court very properly declined to be governed by what Giraud's field notes indicate in reference to the original corners, where they were not otherwise verified. Appellee contends that the northeast corner of the Douthet survey was found and clearly identified by the evidence, and, as the evidence shows that from the point so identified to the southwest corner of the Mullins there is a surplus in distance of not more than 8 varas, the entire surplus, less 8 varas, should be apportioned only among the tracts lying north of such Douthet corner, which would throw the south line of the Bridges further south than where the judgment places it about 37 varas. While witnesses testify to recognizing the original northeast corner of the Douthet, their evidence does not necessarily relate to any corner made by Lindsey. The surveyor of the Douthet was Giraud in 1854, and he does not call for any corner that appears to be identical with any made by Lindsey. These witnesses, therefore, doubtless had reference to Giraud's corners, and the court did not err in refusing to give the evidence touching the northeast corner of the Douthet the weight attached to it by appellee. We cannot say there was error in the conclusions of fact, and, the court having applied the proper rule of law to the facts found, we will affirm the judgment.

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