author: HAUL, J.

text:
    HILL & JAHNS v. LOFTON.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.
    Rehearing Denied March 21, 1914.)
    1. Evidence (§ 366) — Deeds—Copies—Preliminary Evidence.
    Under Sayles’ Ann. Civ. St. 1897, art. 2312, requiring an affidavit as a predicate to the introduction of a certified copy of a recorded instrument to be filed with the papers of the case, evidence of a witness on a stand as to inability to produce the original deed was equivalent to such affidavit, and authorized the introduction of a certified copy.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. § 366.]
    2. Evidence (§ 383) — Documentary Evidence — Effect—SURVIVORSHIP.
    A verified petition for probate, setting out the fact of the death of the husband of testatrix prior to her decease, and the will itself, reciting that she was the widow of one R. S., together with a prior deed to her reciting that she was then the wife of R. S., was sufficient to show that her husband had predeceased, her, so that she inherited his half interest in the community property.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.]
    3. Property (§ 9) — Presumptions—Continuance of Fact.
    When a state of facts such as seisin of land is shown to exist, the presumption is that it continues to exist until the contrary is shown.
    [Ed. Note. — For other cases, see Property, Dec. Dig. § 9.*]
    4. Evidence (§ 353) — Pedigree and Relationship-Statement in Deed.
    A statement in a deed such as that the grantor was a married woman was admissible for the purpose of identification, and to establish relationship, pedigree, etc.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1404-1428, 1430, 1431; Dec. Dig. § 353.]
    5. Names (§ 18) — Identity of Name — Identity of Person.
    In the absence of evidence casting suspicion upon the identity of a party to a conveyance in a chain of title, a similar deed or identity of name is prima facie evidence of identity of per-*ons.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 17; Dec. Dig. § 18.]
    6. Judgment (§§ 486, 501) — Collateral Attack.
    A judgment of a court of competent jurisdiction, though erroneous, must be given full effect until reversed, set aside, reformed, or otherwise annulled by proper proceedings, but, if a judgment is'void, it may be collaterally attacked at any time and in any proceeding where it is urged in support of any right.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 919, 920-923, 941; Dec. Dig. §§ 486, 501.]
    7. Judgment •(§ 489) — Collateral Attack-Grounds — Want of Jurisdiction.
    A judgment rendered by a court without legal organization or without jurisdiction of the subject-matter or jurisdiction of the person, or which has lost such jurisdiction, is absolutely void, even as to a bona fide purchaser for value, and may be collaterally attacked.
    ■ [Ed. Note. — For other cases, see Judgment, Cefit. Dig. §§ 924, 925; Dec. Dig. § 489.]
    8. Judgment (§ 495) — Collateral Attack-Presumption in Favor of Validity.
    A presumption in favor of the judgment of a court of general jurisdiction acting within the ordinary scope of its powers and upon a subject-matter within its jurisdiction arises only in respect to jurisdictional facts, as to which the record is silent, and its regularity will not be presumed against a record disclosing the fact that the court exceeded its jurisdiction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 549%, 933, 934; Dec. Dig. § 495.]
    9. Taxation (§ 639) — Tax Sale — Validity-Jurisdiction.
    Under the statute providing that suit for sale for taxes shall be filed in the name of the state in the district court of the county where the land is situated, a sale of land lying in a different county from that in which the suit was brought and to which the taxes were alleged to be due was void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1302; Dec. Dig. § 639.]
    10. Taxation (§ 668) — Tax Sale — Amount-Statutes.
    Under Rev. St. 1911, art. 7691, allowing the county attorney a fee of $3, the district clerk a fee of $1.50, and the county clerk a fee of $1 in a tax sale foreclosure, a sale under a judgment, including an excess of $14.71 for those items, was void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1351; Dec. Dig. § 668.]
    11. Taxation (§ 734) — Tax Sale — Delinquency.
    Under the statutes governing sale of land for delinquent taxes, expressly excluding jurisdiction as to land already assessed and the taxes thereon paid in a county other than the one in which it is located, an execution sale, in S. county of land on which part of the taxes had been paid in H. county was a sale, in part, for an amount not delinquent, and void.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470-1473; Dec. Dig. § 734.]
    12. Courts (§ 33) — Tax Sale — Jurisdiction to be Shown by Record — Special Nature of Proceeding.
    Proceedings in a district court to collect taxes by foreclosure sale depend solely upon the statute; its jurisdiction is limited and special, and nothing is taken by jntendment in favor of court’s action, but it must appear from the records that facts existed which authorized it to act, and that it kept within the limits of its jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 135, 136, 138; Dec. Dig. § 33.]
    13. Taxation (§ 632) — Tax Sale — Unknown Owner.
    That the tax records of S. county showed taxes to have been paid for certain years by a certain person was sufficient to notify the county of the ownership thereof, and to bar an action against an unknown owner.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1289, 1290; Dec. Dig. § 632.].
    Error to District Court, Sherman County; D. B. Hill, Judge.
    Action to quiet title by J. T. Lofton against George D. Jahns, E. L. Sharp, E. S. Hill, and. others, in which defendants Hill, Sharp, and another impleaded defendant Jahns and another as warrantors of their title. Judgment for plaintiff against the defendants, for Hill and another against Jahns and another, and for defendant Sharp against defendant Jahns, and Hill and Jahns bring error.
    Affirmed.
    Goree & Turner, of Pt. Worth, and O. P. Rudolph, of Stratford, for plaintiffs in error. Wm. J. Berne, of Pt. Worth, for defendant in error.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HAUL, J.

The following statement of the nature and result of the suit is taken substantially from the brief of plaintiffs in error: This suit was brought by the defendant in error, J. T. Lofton, against plaintiffs in error, George D. Jahns, J. R. Middlebrook, E. L. Sharp, U. S. Jahns, E. S. Hill, G. P. Rudolph, B. P. Loomis, and Dr. E. Snow, in the form of an action of trespass to try title to 540 acres of land in Sherman county, Tex., described as “section 25, block 2, G. PI. & H. Ry. Go., patented by the state of Texas to Pred P. James in 1875, by virtue of land script No. 32/403, issued to G. H. & H. Railway Company, and transferred to said Pred P. James.”

The plaintiff’s original petition was filed in the district court of Sherman county, Tex., on March 27, 1909, and was in the usual form of trespass to try title, and to recover rents; the action for rents being subsequently dismissed.

Defendants, except Dr. E. Snow, in due time filed pleas of not guilty. The defendants Loomis and Rudolph subsequently disclaimed any interest in the land. Defendants E. L. Sharp, U. S. Jahns, and E. S. Hill, by proper pleading, sought to recover damages against their codefendants George D. Jahns and J. R. Middlebrook, as warrantors of their title, in the event plaintiff should recover title and possession of said land.

Por title plaintiff relied upon the following instruments; the admission of most of them being objected to by defendants as shown by errors hereinafter assigned:

(1) Certified copy of patent, dated March 16, 1875, from the state of Texas to Pred P. James.

(2) Certified copy of special warranty deed, dated March 19, 1879, from Pred P. James and wife, Julia L. James, to Helen Schell, recorded in Sherman county, Tex., on August 2, 1884.

(3) Certified copy of will of Helen Schell, admitted to probate by the surrogates’ court of the county of New York, N. Y., on April 19, 1890; recorded in Sherman county, Tex., on February 21, 1908.

(4) Original copy of deed from Josephine Y. Lincoln and husband, James M. Lincoln, to J. T. Lofton, dated January 8, 1908, recorded in Sherman county, Tex., February 3, 1908.

(5) Original deed of correction from Josephine V. Lincoln and husband, James M. Lincoln, to J. T. Lofton, dated February 14, 1908, and recorded in Sherman county, Tex., on February 20, 1908.

Por title defendants relied upon the following:

(1) Certified copy of patent, dated March 16, 1875, from tie state of Texas to Pred P. James.

(2) Certified copy of judgment of the district court of Sherman county, Tex., rendered on November 9, 1904, in cause No. 64, entitled, “The State of Texas v. Heirs of P. P. James and Unknown Owners,” decreeing a foreclosure of the plaintiff’s lien on the tract of land in suit, and ordering the same sold to satisfy delinquent state and county taxes.

(3) Proof of order of sale issued in said cause No. 64.

(4) Sheriff’s deed by virtue of said judgment and order of sale dated January 3, 1905, recorded in Sherman county, Tex., on January 23, 1905, conveying said property to J. L. Fuqua.

(5) Certified copy of quitclaim deed from J. L. Fuqua to N. Celsor, dated October 16, 1905, recorded in Sherman county, Tex., on January 13, 1906.

(6) Certified copy of special warranty deed from N. Celsor to George D. Jahns, dated December 19, 1905, recorded in Sherman county, Tex., on January 13, 1906.

(7) Certified copy of general warranty deed from George D. Jahns and wife, Nettie V. Jahns, dated June 11, 1906, recorded in Sherman county, Tex., on June 12,1906.

(8) Certified copy of release of vendor’s lien by which George D. Jahns releases all the purchase-money notes executed to him by J. R. Middlebrook, in payment for land in suit, dated March 21, 1908, recorded in Sherman county, Tex., on March 23, 1908.

(9) Certified copy, as well as original, of a general warranty deed from J. R. Middle-brook and wife, Laura Middlebrook, to U. S. Jahns and E. S. Hill, dated August 14, 1907, conveying an undivided one-half interest in the land in suit.

(10) Certified copy of a warranty deed from J. R. Middlebrook to E. L. Sharp, dated April 9, 1907, recorded in Sherman county, Tex., on February 22, 1908, conveying an undivided one-half interest in the land in suit.

(11) Certified copy of partition deed between E. L. Sharp and E.'S. Hill and U. S. Jahns, recorded in Sherman county, Tex., on June 22, 1908.

(12) Certified copy of a judgment of the district court of Hansford county, Tex., rendered on the 18th day of June, 1901, in cause No. 17, entitled, “State of Texas v. Unknown Owners,” foreclosing á tax lien on the land in suit, and ordering same sold to satisfy' delinquent taxes.

(13) Order of sale issued in said cause No. 17, ordering said land sold to satisfy said taxes.

(14) Tax deed by virtue of judgment and order of sale in cause No. 17, executed by Bert O. Cator, sheriff of Hansford county, Tex., on September 10, 1901, to N. Celsor, and recorded in Sherman county, Tex., on September 11, 1901.

The cause was tried to a jury, and, after all the evidence was introduced, the court instructed the jury to return a verdict for plaintiff against each of the defendants for the recovery of title and possession of the’ land, and for costs of suit; and to return a verdict in favor of E. S. Hill and TJ. S. Jahns against their codefendants George D. Jahns and J. R. Middlebrook, for breach of warranty in the sum of $2,288, and for taxes in the sum of $32.85, aggregating a total sum of $2,320.85, and interest thereon from the date of the judgment at 6 per cent, per an-num, and for costs, and in favor of defendant E. L. Sharp against George D. Jahns for a like amount, which was accordingly done, and judgment rendered in accordance therewith on July 10, 1912.

By their first assignment, plaintiffs in error insist that the court erred in admitting in evidence the certified copy of the deed from James and wife to Helen Schell, over the objection made by the defendants that plaintiff had not filed the affidavit or oath, as required by law, of his inability to produce and file with the papers of said cause the original of said instrument. It is asserted under this assignment that a certified copy of a recorded deed is inadmissible in evidence, in the absence of an affidavit by the party desiring to introduce it, filed among the papers of the cause in which it is to be offered as evidence, stating that the original of such recorded instrument has been lost, or that he cannot procure it, and it is urged that the language of article 2312, Sayles’ Ann. Giv. St., would indicate that the affidavit required as a predicate to the introduction of a certified copy of a recorded instrument must be in writing, because the statute in express terms says that it shall be filed among the papers of the case. The reverse of this proposition has been held several times in this state, and it seems to be now well settled that the evidence of a witness on the stand as to inability to produce the original deed is equivalent to the statutory affidavit, and is sufficient to authorize the introduction of a certified copy. Trimble v. Edwards, 81 Tex. 497, 19 S. W. 772; Parks v. Caudle, 58 Tex. 216; Dohoney v. Womack, 1 Tex. Civ. App. 354, 19 S. W. 883, 20 S. W. 950; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064; Smith v. Cavitt, 20 Tex. Civ. App. 558, 50 S. W. 167.

The question of the sufficiency of the oral evidence introduced in this case as a predicate for the introduction of the certified copy is not a question under this assignment, and will not be considered.

By the second assignment of error it is insisted that the court erred in admitting a certified copy of the will and probate thereof Helen Schell from the surrogate’s court of the county of New York, over the objections of the defendants that there was no predicate for the introduction of said instrument, in this: That the preceding link in plaintiff’s chain of title, to wit, a deed from Fred P. James and wife to Helen Schell, showed that at the time of said conveyance Helen Schell was a married woman, and there was nothing in said deed, nor in any of the evidence offered by plaintiff, to show that said property was the separate property of said Helen Schell, qor that she died seised of the same, and therefore no right was shown in her to dispose of it by will. The propositions following said assignment are, in substance, that a recital in a deed that the grantee is the wife of a certain named person is prima facie evidence against one claiming under said deed that, at the time of its execution, the grantee was a married woman, and puts the title to the property prima facie in the community estate, throwing the burden of-showing facts which give the premises the character of separate property of the devisor upon the party claiming under the will; and, further, that a married woman can only dispose of one-half interest in community property by will. The trouble with this assignment is that it does not faithfully reflect the facts of the record.

The petition to probate the will, verified by J. M. Lincoln, one of the executors, sets out the fact of the death of the husband of Helen Schell prior to her decease. The will itself shows that J. M. Lincoln was the nephew by marriage of Helen Schell, and recites that she was the widow of Richard Schell. The deed from James to Helen S.chell recites that she was then the wife of Richard Schell. This testimony was all introduced without objection, and was sufficient to show that the husband of Helen Schell was dead at the time of her decease, and therefore she inherited his half interest in the community property.

Plaintiff in error’s third assignment is based upon the ground that plaintiff in the court below failed to show a regular chain of title from the state to himself in. this: That the only link in plaintiff’s chain of title, taking the title to the property out of Helen Schell and vesting it in Josephine Lincoln, was the will of Helen Schell, and that there is no evidence that the Josephine Lincoln mentioned in said will was the same Josephine Lincoln who conveyed the property to plaintiff by deed which constitutes one link in plaintiff’s chain of title.

It is insisted, among other things, under this assignment, that there is no evidence that Helen Schell died seised of the land in question. When a state of facts is shown to exist, the presumption is that it continues to exist until it is shown by evidence to the contrary. Holt v. Abby, 141 S. W. 173; Harle v. Richards, 78 Tex. 80, 14 S. W. 257; 1 Wig. Ev. § 382; 16 Cyc. 1054, note 33; 22 A. & E. Enc. of Law (2d Ed.) 1242.

It is further insisted under this assignment that there is no evidence that the Josephine V. Lincoln, legatee in the will, was the identical person who conveyed to Lofton. The will shows Josephine V. Lincoln to be the wife of James Minor Lincoln, and the deeds to Lofton are executed by Josephine V. Lincoln, joined by her husband, James M. Lincoln. The application to probate the will and both of her deeds to Lof-ton show her residence to be the same. Her second deed to Lofton recites her relationship to be the same as the statement thereof in Helen Schell’s will and in the application to probate the will. The statement in the deed is admissible for the purpose of identification, and to establish relationship, pedigree, etc. Auerbach v. Wylie, 84 Tex. 615, 19 S. W. 856, 20 S. W. 776.

In Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300, the court said: “In the case of Chamblee v. Tarbox, 27 Tex. 144 [84 Am. Dec. 614], this court said that similarity of name alone ‘is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance.’ In the absence of evidence casting doubt upon the identity of a party to a conveyance of land, we think it ought to be held sufficient in every case, and the jury, if instructed upon the subject at all, ought to be told so.” In the instant case, no evidence was introduced casting suspicion upon the identity of Josephine V. Lincoln. “In tracing titles, identity of names is prima facie evidence of identity of persons.” Smith v. Gillum, 80 Tex. 120, 15 S. W. 794; Rupert v. Penner, 35 Neb. 587, 53 N. W. 598, 17 L. R. A. 824; Stebbins v. Duncan, 108 U. S. 32, 2 Sup. Ct. 313, 27 L. Ed. 641. The plaintiff, Lofton, testified in this case that Josephine Y. Lincoln, his grantor, was the adopted daughter of Helen Schell, and this evidence is uncontroverted.

As links in their chain of title, plaintiffs in error offered in evidence two judgments foreclosing lien for taxes upon the land in question, one rendered in Hansford county for taxes due for 1892, 1893, 1894, and 1896, and one rendered in Sherman county for $247.91 for taxes on the section of •land in question and 11 other sections belonging to other parties. The validity of both of these judgments is attacked by defendant in error upon numerous grounds. According to Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, the objections made by defendant in error to these judgments is a collateral attack upon them. The general rule is that, although the judgment of a court of competent jurisdiction may be erroneous, it must be given full force and effect until it has been reversed, set aside, reformed, or otherwise annulled by proper proceedings instituted for that purpose; yet, if a judgment be void, it is a nullity, without binding force either in the court which rendered it or in any other jurisdiction where it may be questioned, and it may be collaterally attacked at any time and in any proceeding where it is urged in support of any right. Heath v. Layne, 62 Tex. 686; Moore v. Perry, 56 S. W. 120; Ferguson v. Templeton, 32 S. W. 148; Lutcher v. Allen, 43 Tex. Civ. App. 102, 95 S. W. 572.

In order to make a judgment subject to collateral attack: (1) It must have been rendered by a court without legal organization; or (2) by a court without jurisdiction of the subject-matter; or (3) jurisdiction over the person against whom it was rendered ; or (4) one or more of these matters must have been lost after they once existed. If either of these defects can be shown the judgment, all rights conferred thereby are absolutely void, even in the hands of a bona fide purchaser for value. Newman v. Mackey, 37 Tex. Civ. App. 85, 83 S. W. 31.

It is further said that, although every presumption, when not contradicted by the recitals in the record itself, will be indulged in favor of the judgment of a court of general jurisdiction, when acting within the ordinary scope of its powers and proceedings over a subject-matter within its jurisdiction, yet this presumption arises only in respect to jurisdictional facts of which the record is silent. The regularity of the judgment of courts will not be presumed against the record; that is, if the record discloses the fact that the court, in the exercise of its jurisdiction over the subject-matter, has transcended the limits prescribed then the presumption is rebelled. McMaster v. Childress, 10 Tex. Civ. App. 92, 30 S. W. 843; Treadway v. Eastburn, 57 Tex. 209; McNally v. Haynes, 59 Tex. 583.

The first objection made to the judgment rendered in Hansford county is that no taxes were due Hansford county for the years 1892, 1893, 1894, and 1896, for which' taxes said judgment was rendered, and under which judgment the land was sold. The petition alleged the cause of actibn to be a. failure to pay the taxes due the state of Texas and county of Hansford for said years, and judgment was rendered for such taxes. It appears from the record that in January, 1898, Twichell, a surveyor duly authorized to run the line between Hansford and Sherman counties, filed in the general land office his report and field notes, which were examined and approved by the land commissioner July 21, 1898, and which demonstrated that section 25, the land in question, was wholly in Sherman county. There is other testimony in the record which shows that a correct location of the county line between Sherman and Hansford counties places section 25 within the former county. It is provided by the act under which the judgment under discussion was rendered that: “Suit shall be filed in the name of the state of Tesas in the district court of the county wliere the land is situated.” There was therefore no law under which a suit for tas-es due upon land lying wholly in one county could be instituted in another. Another objection is urged upon the grounds that the land was sold to pay court costs in an amount greater than was authorized by the special act. The bill of costs attached to the order of sale shows that the following items of costs were included: “Issuing orders of sale and return, $1.50; attorney’s fees, $12.-15; sheriff’s fees, $5.50; clerk’s fees, $2.50.” ■The sheriff’s deed recites that he sold the land for the amount of the judgment and the sum of $5.14 interest thereon at the rate of 6 per cent, per annum from the date of the judgment, and the further sum of $20.21 costs. According to article 7601, R. S. 1911, the county attorney was entitled to recover a fee of only $3 and the district clerk a fee of $1.50, and the county clerk a fee of $1. It seems to be well settled in this state that a sale of land under tax foreclosure for a greater amount than the law allows and for costs exceeding the legal fees is void. Eustis v. City of Henrietta, 91 Tex. 325, 43 S. W. 259. In this case the excess in costs amounted to $2.21. Lufkin v. City of Galveston, 73 . Tex. 340, 11 S. W. 340. In this case the excess was only 70 cents. In May v. Jackson, 73 S. W. 988, the excess item was $2.50, and in each of these cases the judgment was declared to be void.

It is further urged that the sale of Sherman county land under the Hansford county judgment was void, because the same was made in Hansford county. This fact appears from the order of sale, which is a part of the record, and has the effect of avoiding the sale. Casseday v. Norris, 49 Tex. 613; Moody’s Heirs v. Moeller, 72 Tex. 635, 10 S. W. 727, 13 Am. St. Rep. 839.

The Sherman county judgment is attacked, first, because 12 sections of land were involved in that suit, and these sections did not belong to the same person; yet the judgment decreed that the entire number be sold to pay a lump sum and finally only a part of the lands were sold. It appears that the proceeds of the sale of a part of the sections paid the taxes on all of the lands, resulting in the sale of section 25, the land in question, to pay taxes upon lands belonging to other parties. In order to consider this objection, it would be necessary for us to consider matters de hors the record, as the question of the ownership of the land does not appear from the record pertaining to Sherman county judgment.

It is further urged that no title passed by the execution sale in Sherman county, because the judgment was rendered and the sale made to pay the 1901 and 1902 state and county taxes, and the taxes for these years had been paid by Celsor in Hansford county. In Mote v. Thompson, 156 S. W. 1105 (writ of error denied by the Supreme Court), we held that the right to file suit for the collection of delinquent taxes and to foreclose a lien upon the property subject to the taxes, which exist solely by reason of this special statute, confers jurisdiction upon the district court, and without the statute the district court would have no such jurisdiction. By express provisions there is removed from the jurisdiction of the court: “(1) All real estate which may have been rendered for taxes and paid under erroneous description given in assessment rolls; (2) lands that may have been doubly assessed and taxes paid on one assessment; (3) lands which may have been assessed and taxes paid thereon in a county other than the one in which they are located.” The purpose of this statute being to collect delinquent taxes, the court clearly had no authority to render a judgment for taxes already paid. This property had been rendered in 1901 and in 1902 by M. Celsor, and evidence was introduced showing the payment of the taxes in Hansford county for said years. The judgment was therefore rendered in part for an amount not delinquent. Mangum v. Kenley, 145 S. W. 316.

We think the Sherman county judgment is further avoided because, in addition to the taxes due Sherman county, the jridgment was for more than could have been legally collected. It is said in Lufkin v. City of Galveston, supra: “The principle is well established that, if a portion of the taxes for which the property is sold is illegal, the sale will be a nullity. The proceedings of a district court to collect delinquent taxes depends solely upon the statute and its jurisdiction in this particular is limited and special.” Cordray v. Neuhaus, 25 Tex. Civ. App. 247, 61 S. W. 415, writ of error denied 94 Tex. 690, 61 S. W. 415 ; Mote v. Thompson, supra ; Hollywood v. Wellhausen,. 28 Tex. Civ. App. 541, 68 S. W. 329; Unknown Owner v. State, 55 Tex. Civ. App. 300, 118 S. W. 803. In the last-named case it is said: “The objections urged to the citation in the first assignment are not maintainable. This was a special proceeding under the delinquent tax law of 1897, which prescribed the form of citation to be issued in cases of this character, and the citation in the record substantially conforms therewith.”

In State v. Unknown Owner, 47 Tex. Civ. App. 188, 103 S. W. 1116, it is held that the special law, rather than the general law, controls in this proceeding. This record shows that the sale under the Sherman county judgment was made to pay excessive fees charged for the benefit of the county attorney, as well as excessive fees for the clerk and sheriff.

In Cordray v. Neuhaus, supra, Garrett, J., said: “If the district court, in the exercise of its general jurisdiction, can entertain a suit for tlie recovery of taxes, and tlie foreclosure of a lien therefor, its judgment is conclusive of the regularity of the legal requirements in the levy and assessment of the tax; and a foreclosure sale for the satisfaction of the judgment should be made in the usual manner of such sales generally, and not be held invalid for irregularities in collateral attack such as has been made in this case. Unless the district court of Galveston county could only exercise a special jurisdiction when it foreclosed the tax lien in cause No. 8903, and had the property of Kate Oordray sold, it seems that the sale under the judgment in that case was valid, and that the title was vested in the city by its purchase' thereat. * * * The title of the purchaser of land at a sheriff’s sale does not depend upon the deed. It rests upon a valid judgment, levy, and execution sale, and the payment of the money. * * * But a special and limited jurisdiction may be prescribed for a court of general jurisdiction in the sale of land for taxes, and, when this has been done, nothing is taken by intendment in favor of the action of the court. It must appear by the recitals of the record itself that the facts existed which authorized the court to act, and that, in acting, the court has kept within the limits of its lawful authority. Cooley, Tax’n, 525, 526. By the Constitution of 1868 (article 12, §§ 20, 21) the annual assessment of taxes on land were, made a lien thereon, but no landed property could be sold for the taxes due thereon, except under a decree of some court of competent jurisdiction. In pursuance of these provisions of the Constitution, the twelfth Legislature, in granting a charter to the city of Galveston by special law approved May 16, 1871, provided that all taxes should be a lien upon the property upon which they were assessed, and for a proceeding in the district court of Galveston county for the sale of real estate.” In this case it clearly appears that the district court of Hansford county had no jurisdiction, since the land was in Sherman county; that the district court of Sherman county rendered a judgment for taxes which had been paid in Hansford county upon land lying in Sherman county; and it further appears that both judgments were rendered for amounts in excess of sums legally due. These matters, not being contrary to the records, take the judgments out of the operation of the general rule. As was said by Neill, J., in Young v. Jackson, 50 Tex. Civ. App. 851, 110 S. W. 74: “A suit to foreclose a lien for delinquent taxes on property of an unknown owner is a proceeding in rem, not strictly judicial, but only a step in administration proceedings, and the judicial department is resorted to only on account of the dereliction of the owner. Hence, the jurisdiction so invoked being special and limited by the act of the legislative department, nothing is taken by intendment in favor of the court’s action, but it must appear from the record itself that the facts existed which authorized the court to act, and that it kept within the limits of its lawful authority in so doing.”

In Stoneman v. Bilby, 43 Tex. Civ. App. 293, 96 S. W. 50, Speer, J., said: “We are not unmindful of the rule laid down in the Texas cases above cited, to the effect that on collateral attack the presumption is that a sufficient affidavit was filed to authorize the issuance of the citation by publication, but we understand the rule to be that this is a rebuttable presumption, unless rebutting it involves in some way the contradiction of the record. As before shown, the judgment does not recite the filing of affidavit or service upon the defendant in the action, but, on the contrary, * * * does affirmatively show an insufficient affidavit * * * and in such a case the inference is that the service was had upon the defective affidavit, the only one in the record, and the presumption above referred to is therefore overcome. This we understand to be the application of the exact rule announced by us in the eases of Earnest v. Glaser 132 Tex. Civ. App. 378], 74 S. W. 605, and Babcock v. Wolffarth [35 Tex. Civ. App. 512], 80 S. W. 642, in each of which cases a writ of error was refused.”

We think, under the rule announced in Mote v. Thompson, supra, the fact that the tax records of Sherman county showed the taxes to have been paid for 1901 and 1902 by Celsor was sufficient to notify the county of the ownership thereof, and the suit, in the face of the tax records, could not properly have been maintained against an unknown owner. Scales v. Wren, 103 Tex. 304, 127 S. W. 164. We quoted in Mote v. Thompson: “The fact of the assessment must have been known to the assessor, when the suit was brought, and' the affidavit made that the land belonged to some unknown owner, the court found that the assessor and county knew that it was the homestead of the appellants. Knowing these facts, the suit was filed, process was obtained for unknown owners by the affidavit of the county attorney, and the homestead of appellant sold for taxes which they did not owe. They had done all required of them by law in rendering their property for taxation, and then paid the taxes,” Hollywood v. Wellhausen, supra. It is further said in that case: “It follows, therefore, that, unless the facts in this case brought the tax suit clearly within the purview of the statute, the proceeding was null and void, and the judgment was open to attack in any judicial proceeding.”

Prom what has been said, we conclude that both judgments were absolutely void and could not be held to be a link in the chain of title. The remaining assignments of error urged, by plaintiffs in error have either been disposed of by what we have heretofore said in this opinion, or are without merit.

We think the court did not err in giving the peremptory instruction, and the judgment is affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    GEORGETOWN MERCANTILE CO. v. FIRST NAT. BANK OF GEORGETOWN.
    (Court of Civil Appeals of Texas. Austin.
    March 4, 1914.)
    1. Action (§ 25) — Conformity to Pleadings —Nature and Form of Remedy.
    In Texas there is no distinction in the administration of judicial redress between law and equity, and the courts in the same suit will administer whatever remedy a litigant is entitled to, whether legal or equitable.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 124-145, 147-149, 153, 156-159, 313; Dec. Dig. § 25.]
    2. SUBROGATION (§ 23) — CORPORATIONS — Right op Oppicers Making Advances.
    Where the president and vice president of a corporation, which was in need of money, but had borrowed all that its bank was willing to lend, gave their personal note, bearing interest at 8 per cent, and providing for attorney^ fees to the bank, and placed- the proceeds to the credit of the corporation, -which used them in paying its debts, it was bound to reimburse them for the amount of a judgment recovered on the note, including interest at the stipulated rate and attorney’s fees.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§' 60-66; Dee. Dig. § 23.]
    3. Judgment (§ 251) — Conformity to Pleadings.
    Where, in an action on a note given by the president and vicq president of a corporation for borrowed money which they placed to the credit of the corporation, and which was used by it in the payment of its debts, they filed a special plea setting up such facts, a judgment in their favor against the corporation would not be denied on the ground that it was liable, if at all, on an implied obligation, since the plea did not, as claimed, found their right to recover on the note.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    4. Corporations (§ 308) — Compensation op Oppicers — Extra Services.
    Where the president of a corporation filled the position of general manager, and rendered the services formerly rendered by the manager, worked as a salesman, being usually the first man to reach the store and the last to leave it, and even helped with the sweeping, he was entitled to compensation for such services, though the by-laws required officers’ salaries to be fixed by the board of directors, and no salary for the president was fixed.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334H349; Dec. Dig. § 308.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    Action by the First National Bank of Georgetown against the Georgetown Mercantile Company and others. From a judgment against it, the defendant named appeals.
    Affirmed.
    Fisher & Fisher, of Georgetown, for appellant. W. M. Allison, of Georgetown, for appellee bank. Nunn & Love, of Georgetown, for appellee Edwards.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

The First National Bank of Georgetown brought this suit against W. W. Edwards and John R. Allen as makers of the second note hereinafter referred to, and against the Georgetown Mercantile Company as indorser thereon. The latter answered by a special demurrer, general denial, and a special answer, alleging that the indorsement upon the note was not made for its benefit, but for the benefit of the defendant Edwards, without .any authority from it. That defendant also set up a cross-action against the defendant Edwards for $814.30 upon an account for merchandise sold to him. The defendant Edwards answered the plaintiff’s petition by a general demurrer and general denial. He also filed a special plea,' setting out a full history of the transactions, which resulted in the execution of the note sued on, and prayed in the alternative for a judgment against the mercantile company for whatever sum the plaintiff might recover against him. Edwards also filed an answer t.o the cross-action asserted against him by the mercantile company, in which he claimed that he was entitled to certain credits upon his account with that company, including a credit of $800 for services rendered, and which credits left him indebted to the mercantile company in the sum of $14.28, and no more, which sum he tendered in court and deposited with the clerk. Defendant Allen filed an answer which, among other things, adopted the answer of his code-fendant, Edwards, as to the right to recover judgment over against the mercantile company for such amount as the plaintiff might recover against him. On the 21st day of August, 1912, the Georgetown Mercantile Company, a trading corporation, was in need of money, which it was unable to obtain without assistance, as it had borrowed from its bank all that the bank was willing to lend it. Thereupon its president, W. W. Edwards, and its vice president, John R. Allen, made an arrangement with the bank, as a result of which they executed a note to the bank for $2,500, with 8 per cent, interest, and a stipulation for 10 per cent, attorney’s fees. When the note was executed, and as part of the same transaction, the bank drew a check for $2,500 in favor of John R. Allen, which was then and there by him deposited in the bank to his credit, and he thereupon drew a check for the same amount in favor of the Georgetown Mercantile Company, which was delivered to the bank and placed by it to the credit of the Georgetown Mercantile Company, and was used by that company in the payment of its debts. The note referred to fell due October 21, 1912, whereupon Edwards and Allen executed another note, similar in all respects to the first one, and some one made the following indorsement upon the bach thereof: “Georgetown Mer. Co. Int. paid to Jan. 3/1913.” It was shown by undisputed testimony that the Georgetown Mercantile Company paid the interest on the latter note to January 3, 1913. The plaintiff sued the mercantile company as indorser of the note, and the mercantile company did not deny under oath that the Indorsement was made by it or by its authority. The only testimony as to how and by whom the in-dorsement was placed on the note was given by the defendants, Edwards and Allen. Edwards first testified that his codefendant, Allen, made the indorsement, but afterwards stated that he, Allen, and Carothers, the president of the bank, were all present, and he did not know which placed the indorsement on the note, but thought it was done by Allen. The defendant Allen testified that he knew nothing about the indorsement on the note; that he was not then president of the mercantile company, and had nothing to do with such, matters. There was a nonjury trial, which resulted in a judgment for the bank against Edwards and Allen for the full amount of the note, interest, and attorney’s fees, and judgment over in favor of Edwards and Allen against the Georgetown Mercantile Company for the same amount of the bank’s judgment against them. Judgment was also rendered in favor of the mercantile company against Edwards for $114.-30, to be credited upon any amount that Edwards might have to pay to the plaintiff upon its judgment against him. The Georgetown Mercantile Company alone has appealed.

Opinion.

As against the judgment over in favor of appellees, Edwards and Allen, for the amount of the judgment recovered by the bank against them, counsel for appellant contend : (1) That the court erred in rendering that judgment because the mercantile company was not primarily a party to the contract between Edwards and Allen and the bank; (2) that if the mercantile company was liable to Edwards and Allen at all, such liability was not founded upon the note, but upon an implied obligation, constituting an assumpsit, and that the pleadings did not authorize the relief granted; and (3) that in no event was the mercantile company liable to Edwards and Allen for more than $2,500, with 6 per cent, interest per annum, and that so much of the judgment as allowed S per cent, interest and 10 per cent, attorney’s fees, was erroneous. We overrule all of these contentions. In determining the rights of the litigants in this ease, it should be borne in mind that in this state there is no distinction in the administration of judicial redress between law and equity, and that our courts in the same suit administer whatever remedy a litigant may be entitled to, whether such remedy be legal or equitable. It requires no argument to show that in the forum of conscience the Georgetown Mercantile Gompany ought to reimburse Edwards and Allen for whatever sum of money they are required to pay, by reason of the fact that they executed the note upon which the bank recovered judgment against them. They were the two highest officers of the company, and their only object in incurring the original liability which resulted in the execution of the note sued on was for the accommodation and benefit of the company. As a result of their incurring that liability, the company received $2,500, and they derived no benefit whatever from the transaction. It is manifest that they acted in good faith and for the sole purpose of promoting the welfare of the company, and the testimony does not indicate that the company could have obtained the money needed from any other source or upon less onerous terms; and, according to the plain rules of right and justice, which rules it is the province of a court of equity to en-' force, the company should be compelled to hold them harmless, and this is all that the judgment complained of has undertaken to accomplish.

In this respect this case is quite similar to Gaston & Ayres v. Campbell Co., 104 Tex. 576, 140 S. W. 770, 141 S. W. 515, where the Supreme Court, speaking through-Mr. Justice Ramsey, said: “Again, it seems to us that when analyzed, in the light of the uncontro-verted evidence, the whole case comes to this : The transaction in question was in fact by the company and for the company. Now, if the company had executed the note in its proper name, and same had been indorsed or guaranteed by I. E. Campbell, it would not be questioned that the company would be liable at the suit of any purchaser for value, without notice. Can the fact that, as a matter of convenience, in a transaction in which the company was the real actor, and in which it only was to be benefited, the note was in form made the obligation of I. L. Campbell, and at the same time guaranteed by the company, change the rights of a bona fide holder thereof? Suppose I. L. Campbell had been compelled to have paid this note; earn, it be doubted that he would have the right to reimbursement from the company, if the company had received the entire consideration? Now, no one will question the statement that the rights of Gaston & Ayres cannot be made to depend on the disposition made of the proceeds of the note by Clark. We come, therefore, to the question, Shall the rights of the parties and the right and justice of the ease be made to depend on the mere form the transaction toolc or the apparel in tohich it ivas clothed? We cannot think so. The law ever pays but scant respect to mere appearance, but should and does give its first attention to the realities and very truth of every transaction. Holding these views, it results that, having the right to borrow money, and having obtained on its note the money of these plaintiffs in error who were in the transaction without blame or fault, the company must, under the law, and should as a matter of right, repay them. We agree with the trial court and the Court of Civil Appeals that there was no legal evidence raising the issue that the sum paid T. W. House was, or that the sum should be, treated as the funds of I. L. Campbell. The transaction in its inception, and until the note was given and guaranteed, was the act and business for the benefit of the company, and must be treated as such.” The italics are ours, and indicate that portion deemed applicable to this case. The term “law” as used in the quotation was no doubt intended, as it is often used in this state, to include the principles and rules of equity, as well as those of law; and it embodies a clear and forceful statement of one of the fundamental rules of equity, and which rule has application to and controls this case.

We do not agree with appellant in the contention that appellees, Edwards and Allen, founded their right to recover against appellant upon the note which formed the foundation of the bank's suit. The plea of Edwards, which was adopted by his codefendant, Allen, embodied a full statement of the transaction, and did not seek to recover upon the note, but sought to recover against appellant because of the fact that they had adopted the only available means by which money could he secured, not for them, hut for appellant; and therefore, in equity and good conscience, appellant ought to hold them harmless. We think the pleading referred to was sufficient to entitle them to the relief sought and obtained.

The trial court held that appellee Edwards was entitled to a credit of $700 upon his account with appellant, the mercantile company, the reasonable value of services rendered by him for the company. The court made a finding, embodied in the judgment, that the services referred to were worth $100 per month, and that the time of service was seven months, making an aggregate of $700. Appellant presents the contention that, inasmuch as appellee Edwards was president of the mercantile company, and as the by-laws required all salaries of officers to be fixed by the board of directors, and as no salary for the president was fixed, therefore the court erred in allowing him the credit of $700 on his account as compensation for his services. In his pleading Edwards alleged the necessary facts, and sought to recover upon a quantum meruit for the value of certain services rendered by him. He testified that up to the 1st of March, 1912, the corporation had a Mr. Banner employed as manager, and that after that time and up to November he acted as general manager, filling the position and rendering the services formerly rendered by Mr. Banner; that the corporation paid Mr. Banner $125 a month. He also testified that from the 1st of March’ to the 1st of November he managed the business and worked as a salesman, worked all the time; that he was generally the first man to reach the store and the last to leave it; that he even helped to do the sweeping. There was other testimony corroborating Edwards in that respect, and tending to show that the services rendered by him, apart from those which he was required to perform as president of the corporation, were worth at least the amount awarded to him. Upon this state of facts we uphold the action of the trial court, and ‘Overrule appellant’s contention, as to Edwards’ right to compensation for extra services and the further contention that there was no proof of the value thereof.

No error has been shown and the judgment is affirmed.

Affirmed.


author: LEVY, J.

text:
    MARSHALL v. BEASON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 22, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Specific Performance (§ 87) — Right to.
    Where the deed to land, which they had contracted to purchase, was rejected on account of alleged defects in the title, the purchasers cannot thereafter claim specific performance of the contract.
    [Ed. Note.- — Eor other cases, see Specific Performance, Cent. Dig. §§ 225, 238-241; Dec. Dig. § 87.]
    2. Specific Performance (§ 31) — Incomplete Contract — What Constitutes.
    Where defendants offered to purchase plaintiff’s land, if the deed could be made so that they could pay $50 a year for five years, and then $500, and plaintiff in reply offered to lease the land for five years at $50 a year, with the understanding that at the expiration of five years it should be purchased for $500, and required two years’ rent in advance, there was no enforceable contract; plaintiff’s reply not being such an unqualified acceptance of defendants’ offer as to create a contract, and her counter offer not having been accepted.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 86-88; Dec. Dig. § •31.]
    3. Specific Performance (§ 31) — Incomplete Contract — Offer—Acceptance.
    Where a landowner offered to sell his land at slightly different terms from those offered by the purchaser, the purchaser’s mere mental intention to accept, without notice thereof to the vendor, cannot create a binding contract entitling him to specific performance.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 86-88; Dec. Dig. § 31.]
    4. Taxation (§ 531) — Payment of Taxes— Recovery.
    Where defendants paid taxes on plaintiff’s land without the authority of plaintiff, and without any contract for the purchase of the land, the defendants were mere volunteers, and cannot recover the payments made.
    [Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 986, 987; Dec. Dig. § 531.]
    5. Appeal and Eerob (§ 1176*) — Determination.
    Where the evidence is practically without conflict, and all of the material facts are before the Court of' Civil Appeals, that court will itself enter the judgment which should have been rendered below.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4573^4587; Dec. Dig. § 1175.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Trespass to try title by Ella Marshall against C. L. and Dan Beason, who counterclaimed. Prom a judgment for defendants on their counterclaim, plaintiff appeals.
    Reversed and rendered.
    Claiming to be the owner in fee simple, and under the ten-year statute of limitation, of 100 acres of the D. Blankenship survey in Panola county, the appellant brought an action in trespass to try title, and as well to remove cloud from the title against appellees. Appellees answered by denial and not guilty, and by cross-action pleaded a contract of lease and purchase of the land from appellant of date January 22, 1912, and asked specific performance of the same. Appellant answered the cross-action by denial and plea of mutual rescission of a former trade. It was agreed that appellant had title to the land, and the contest was over the allegations of the cross-action. The verdict of the jury was. in favor of appellees, and a decree of specific performance of the contract of sale was entered.
    It appears that in the month of November, 1911, the brother of appellant, purporting to act for appellant, contracted a sale of the land to appellees for $500 cash, “to be paid on presentation of substantial warranty deed.” In accordance with the contract so made by her brother, the appellant, in November, 1911, forwarded a deed to the land by mail to the bank, with instructions to deliver it to appellees upon their paying the $500. Appellees, in consequence of legal advice against the title to the land, did not take the deed from the possession of the. bank. Appellees admit in their evidence that the want of a good title ended the original trade of purchase. O. L. Beason, on January 3, 1912, in reply to a letter from her, wrote appellant expressing his intention to give up the original trade, but at the same time making the further offer to appellant in respect to the land that, “if the deed can be so made that I could pay you say $50.00 or $40.00 a year for five years, and then pay the $500.00, I would risk the title; but as it stands, with no bond for title, I would risk no cash, except as it might be made on the place.” To this letter appellant, on January 22, 1912, replied as follows: “Please excuse my seeming negligence in waiting so long to reply to your letter. I have now decided to rent you the land for the five years at fifty dollars per year, with understanding at expiration of the five years you' pay me five hundred cash for it. Yet, Mr. Beason, land, no doubt, would be worth more. But, now-I do this, I want you to do me a favor. I went to big expense to send my brother there with understanding I would not sell for less than, six hundred. ITe promised it to you for five hundred. Anyway, my collections have been slow on account of low price cotton, etc., and I need some money real bad right now in my millinery business, and it be great accommodation if you will pay me two years of the rents in advance, which then would be help to me, and you be in possession, and I assure you I not trouble you any more until my rents come round after expiration of the two years. I hope you can and will do this, at least, for, after I had made up my mind to sell, I wanted to sell, and I need money, and I hope you will now send me check right away for one hundred; will be help to me as now I need it.” Appellees did not, they say, make any reply to this letter. And on February 10, 1912, appellant again wrote appellee C. B. Beason stating that she had been anxiously awaiting a reply to her letter of the 22d, and “I was surprised, and so was Brother, when you failed to come up to promise. It was only through Brother that I ever agreed to send deeds or sell place for five hundred dollars. I-Ie said he promised you, so I consider I am under no obligation to sell it for that now, unless you will, as I ask you to, pay me two years’ rent in advance; then I will agree, as I said, to rent you place for five years, and sell it to you at expiration of five years for five hundred; otherwise I can’t promise to sell it at that price now, but, as I have gone so far as to promise to rent you the land for five years, with two years’ rent in advance, I will be as good as my word, and can’t see why you have not replied to my letter. So please write or let me hear by 15th or 16th of this month what you are going to do.” On March 25, 1912, appellee Beason replied to the letter, as far as is here material, as follows: “In reply to your recent letter, permit me to say that, if the proposition I made is not acceptable to you, you may refund the payment made, the taxes for last year, and pay me a very reasonable sum for my own time spent about the place, and I will give up possession to you. Be glad to, as the place would not cash $300 to-day. * * * When you refund me money I’ve been out, I’ll give up possession of place. * * * Please let me hear from you by return mail.” Appellant did not reply to this letter, but instructed her agent on the ground to secure a tenant for the place, which the agent, ás he says, did. Appellees were not notified by the appellant’s agent, as they say, of appellant’s refusal to further negotiate any trade until June, 1912. Appellees assumed to rent out the place in January. It further appears that on September 21, 1912, appellees forwarded exchange for $50; but same was at once refused and returned by appellant to appellees. Appellees made no other payment on the land to appellant except the tender in September, but on March 16, 1912, voluntarily paid the taxes for 1911 on the land. The evidence does not show that appellant authorized the payment of the taxes. This is the evidence in the record relied upon to show the alleged contract.
    H. N. Nelson, of Carthage, for appellant. Brooke & Woolworth, of Carthage, for appel-lees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NÜMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the fact as above).

In challenging the verdict of the jury and the decree of specific performance based thereon, the point made by the assignment is that there is failure of any proof, as a matter of law, of a completed and existing contract of lease and sale of the land in suit between the appellant and the appellees. If this point should be sustained, as we think it must be, it necessarily follows that appellant should have judgment for the title and possession of the land, for it was admitted that appellant had title and should recover, unless appellees established a right to specific performance. Refusing, as appellees did, to accept the deed to the land forwarded by appellant in November, 1911, and to perform the contract as made through the appellant’s brother to pay $500 cash for the land, because of the adverse legal advice as to the character of title contracted for, such contract lost its legal force of enforcement by appellees, and they could not predicate a right of specific performance upon such original contract. And, further, appellees in their pleading do not rely upon the contract so made through the brother of appellant. While, however, it admittedly appears that appellees refused to perform and rejected the contract of sale of the land for cash made in behalf of appellant by her brother in November, 1911, it nevertheless further appears, and must be taken as a fact, that thereafter, on January 3, 1912, ap-pellee O. L. Beason, by letter of that date, made a new and distinct offer to appellant in respect to the land. In the letter appellee plainly proposed to appellant to take the land and “risk the title” upon the terms that appellant would have “the deed” to the land “so made that I could pay you say $50.00 or $40.00 a year for five years, and then pay the $500.00.” This proposal of appellee to appellant has through words used the elements of an offer to purchase the land outright at once on the terms of payment in the amount and at the time mentioned, and there is no room in the words used for a different construction of the nature and terms of such offer. To this proposal of appellee, of purchase of the land on the terms stated, the appellant replied in her letter of January 22, 1912, in the words, “I have now decided to rent you the land for the five years at fifty dollars per year, with the understanding at. the expiration of the five years you pay me five hundred cash for it.” The language of the reply so plainly expresses the intention and purpose of the appellant in respect to appellee’s proposal in the letter of January 3d as to admit of no reasonable doubt to appellee that it was really a rejection of his proposal of purchase outright of the land, and was a counter proposal of lease and sale of the land. And appellant’s letter of February 10th emphasizes her purpose and intention of rejection of the appellee’s proposal as made. While it is true that the amounts and time for the payment of the same proposed by appellee were accepted and used by appellant in her counter proposal, yet the same, it is evident, was merely the basis acceptable to her for a counter proposal for a lease first, and then a sale of the land to appellees after the expiration of the five-year lease. If the appellees construed the letter of appellant to O. L. Beason as accepting his very offer of January 3d, they clearly misapprehended the letter and its legal effect. Since the proposal of appellee was of purchase outright, and did not contain an offer to rent the land, and then purchase in five years afterwards, and the reply of appellant to the proposal expressly contained and insisted upon the terms of rental for five years first, and then' sale for $500 cash after the expiration of the five years, it is manifest that the reply of appellant did not correspond to the terms proposed by appellee. The term for rental of the land became and was a material term of the counter proposal of appellant, and formed a new and variant term from the terms proposed by appellee. It is quite elementary that, unless the acceptance corresponds to the offer, there is a lack of mutuality in agreement between the parties. And it appears, as an admitted fact by appellees, that no reply was made by them to appellant’s counter proposal of her letter of January 22d. It is an elementary principle of law that, unless an agreement is reached by some form of offer on one side, and accepted on the other, it is not a contract resulting in obligation and enforceable at law. It is not doubted that, had appellees replied in acceptance of the appellant’s counter proposal, the case would present a very different aspect, for appellant’s proposal was so complete that upon acceptance by appellees an agreement would have been formed which contained all the terms necessary to determine a contract. And if the counter proposal of appellant should be construed as intended merely to open negotiations which would ultimately result in a contract, such proposal of appellant called for an acceptance by appellees before they could legally assert a contract to have been formed between them and appellant. And until acceptance the counter proposal of appellant is not an agreement, and no rights either in the property or against appellant can come into existence. A mere mental intention to accept, not followed by notice to appellant, which was the situation in this record, does not have the legal effect of converting the counter proposal of appellant into a contract. And it is made conclusive by the letter of March 25th, written by appellee O. L. Beason in reply to appellant’s letter of February 22d, that appellee rejected and would not accept the counter proposal of appellant, if force be given, as it must be, to the statement in the letter that, "if the proposition I made you is not acceptable to you, you may refund the payment made, the taxes for last year, and pay me a very reasonable sum for my own time spent about the place, and X will give up possession to you.” It is conclusive that appellant accepted this letter as final and ending the negotiations, for she instructed her agent, Mr. Knight, to find a tenant and rent the land out. And appellees admit that they knew her intentions in the matter in June following. It does not appear that ap-pellees had made any payment to appellant for her to refund as indicated in the letter.

There appears the evidence that appellees, in September, and after notice that appellant had acted on O. L. Beason’s letter of March 25th, tendered appellant $50 in exchange, which was immediately refused and returned by appellant to appellees. It does appear that on March 16th appellees paid the taxes for the year 1911 on the land. But the payment of the taxes was not made by any authority of appellant, and while the appellees had no legal claim or contract in respect to the land. Therefore the appellees in respect to the payment of the taxes stood in the position of a mere volunteer, and as a consequence cannot legally predicate a right of recovery against appellant for the taxes.

The facts failing to establish the contract alleged by appellees, the judgment is reversed, and, as the material facts are without dispute, and present a question of law, no reason exists for remanding the cause; and judgment is therefore here rendered for appellant for the title and possession of the land, and for costs of the district court and of this appeal.


author: HIGGINS, J.

text:
    GOVERNMENT HILL CO. v. MUNDY et al.
    (Court of Civil Appeals of Texas. El Paso.
    March 19, 1914.)
    1.Teespass to Try Title (§ 47) — 'Verdict— Sufficiency.
    In trespass to try title, where the description in the petition failed to locate the corner which was the beginning point of the description with reference to any monument, and the defendant disclaimed title to the land embraced in plaintiff’s survey, but definitely fixed the corner by reference to known monuments, a verdict finding for the plaintiff for the land sued for was insufficient to form the basis of a judgment.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. | 47.]
    2. Trespass to Try Title (§ 47) — Judgment —Conformity to Verdict.
    In such a case the trial court could not by its judgment fix the disputed corner, after referring to the evidence, since that would be to-determine the fact in issue, and which should have been determined by the jury.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    3. Trespass to Try Title (§ 47) — Judgment —Conformity to Verdict.
    Nor could the court fix the corner by referring to the description contained in the answer, since the verdict was for what the plaintiff sued for, without reference to the claim of the defendant.
    [Ed. Note. — For other cases, see Trespass tO' Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.]
    Appeal from District Court, Ei Paso County ; A. M. Walthall, Judge.
    Action by the Government Hill Company against J. J. Mundy and others. From an amended judgment entered by the court upon a verdict for the plaintiff, the plaintiff appeals.
    Reversed and remanded.
    Patterson, Buckler & Woodson and Pey-ton F. Edwards, all of El Paso, for appellant. T. A. Falvey and Goldstein & Miller,, all of El-Paso, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

'Appellant brought this suit in trespass to try title to recover certain premises in El Paso county described as follows: “Beginning at a point in the west line of survey No. 274 (patented to Valentine and Johnathan H. Winters, as assignees of Peter U. Pridham, by patent No. 589, vol. 8, dated June 1, 1875, recorded in Book F, at page 2SB), 2,003 varas southerly from the northwest corner of said survey No. 274; thence southerly 50 varas to the northwest corner of survey No. 6; thence east with the north line of said survey No. 6 672 varas to the northeast corner of the same; thence north with the west line of survey No. 7 (for E. R. Tally, certificate No. 23) 269 varas to the northwest corner of said survey No. 7; thence east 672 varas with the north line of said survey No. 7 to the northeast corner of said survey No. 7 on the west line of survey No. 8; thence north with the west line of survey No. 8 245 varas to the northwest corner of said survey No. 8; thence east 672 varas with the north line of said survey No. 8 to the northeast corner of the same: thence north 50 varas; thence west at right angles 712 varas; thence south at right angles 245 varas; thence west at right angles 672 varas; thence south at right angles 269 varas; thence west at right angles 632 varas to the place of beginning.”

Defendants filed disclaimer and answer as follows: “Defendants say that there is, as applied on the ground, an irreconcilable conflict between the parts and elements of description, in said original petition, of the land sued for, but that, as to all land, if any, in said petition described, other than that to which these defendants hereinafter plead not guilty, said defendants disclaim and deny having claimed or held at any time possession or right thereto or title, or laid or laying claim adverse to title and right of plaintiff, or having interrupted the possession of plaintiff as to that part of the lands described in original petition, which part is described as follows, to wit: Beginning at the N. W. corner of city cemetery of the city of El Paso and of the fence around same, and running W. therefrom, a perpendicular of four feet on and to the E. boundary line of the J. W. Cummings survey No. 2 in El Paso county, Tex., and thence N. with said E. boundary line 153 feet to a mound of stone set in cement, the point of beginning of boundary of said part of tract sued for, said mound being the true northwest corner of Edmund Talley survey No. 6, El Paso county, Tex.; thence E. 672 varas to pine post 12" diam., 1 ft. above 3 ft. in ground, in W. line of R. Tally survey No. 7 in said county, which post is the monument of N. E. corner of said survey No. 6; thence N. 269 vrs. to rock and mortar mound in said W. boundary line, the true N. W. corner of said survey No. 7; thence E. 672 varas to rock and mortar mound in W. line of boundary of E. Neve survey No. 8 in said county, marking the true N. E. corner of said survey No. 7; thence N. with said last IV. line 245 varas to rock and mortar mound, the true N. W. corner of said survey, E. Neve No. 8; thence E. 672 varas to E. boundary line of said last survey and of Peter U. Prid-ham survey No. 274, a rock and mortar mound monument, marking N. E. corner of E. Neve survey No. 8 (defendants resisting the claim of plaintiff to all land described in petition south and east of said above lines); thence S. to eastern end of most eastern south boundary line of tract sued for; thence W. 672 varas at right angles; thence S. at right angles 245 varas; thence W. at right angles 672 varas; thence S. at right angles to place of beginning. As to said part as aforesaid defendants say they are not guilty, and defend the wrongs and trespasses charged by plaintiff, and as to said part defendants deny all and singular the allegations of plaintiff’s petition, resisting and denying the claim of plaintiff south of true northern boundaries of said surveys Nos. 6, 7, and 8.”

Plaintiff had title to the Peter Pridham survey No. 274, lying immediately to the north of and adjoining E. R. Talley surveys 6 and 7, and E. Neve survey No. 8, owned by defendants.

The question involved was one of boundary ; the issue being whether the premises in controversy were situate in the Pridham survey or in the Talley-Neve surveys 6, 7, and 8.

The Pridham survey is described in patent as: “Beginning at a large rock, the northwest corner of survey No. 6 for E. R. Talley, H. R. certificate No. 23; thence east with the north line of said survey 672 varas to the northeast corner of same; thence north with west line of survey No. 7 for E. R. -Talley certificate No. 23 at 269 varas northwest corner of said survey No. 7, a stake; thence east 672 varas with the north line of said survey No. 7 to a stake at the northeast corner of said survey No. 7 on the west line of survey No. 8; thence north with the west line of survey No. 8 (for F. Neve) 245 varas to the northwest corner of said survey No. 8, a stake; thence east 672 varas with the north line of survey No. 8 a stake for the northeast corner of same; thence north I,539' varas to a stake for the northeast corner of this survey, No. 274; thence west 2,016 varas to a stake for the northwest corner of this survey on the east line of survey No. 2; thence south 2,053 varas with the east boundary line of the J. W. Cummings (No. 2), to the place of beginning.”

Talley survey No. 6 is described as beginning at southeast corner of survey No. 1 on bank of river; “thence north 2,688 varas to' a rock mound; thence east 672 varas to a rock mound; thence south,” etc.

No. 7 begins at southeast corner of 6; “thence north 2,957 varas to rock mound ,- thence east 672 varas to rock mound; thence south,” etc.

No. 8 begins at southeast corner of No. 7; “thence north 2,662 varas to rock mound; thence west 672 varas to rock mound; thence south.” etc.

From the statement made it is seen that the Pridham south line is coincident with the north line of surveys, 6, 7, and 8, and that the location of this dividing line is the point at issue between the parties. It is further readily apparent that the location of the dividing line is dependent upon the location of the northwest corner of No. ‘6. Finding this corner solves the whole controversy. Upon trial before a jury, a general verdict was rendered in favor of plaintiff “for the land sued for.”

Judgment was entered in the cause in favor of plaintiff; the same description being given of the land as was contained in plaintiff’s pleadings, with the interpolation that the northwest corner of survey No. 6 was “the southwest corner of said Pridham survey No. 274, and being, as alleged in defendants’ answer, 4 feet west from the northwest corner of the city cemetery.” This interpolation was made at end of the call “thence southerly 50 varas to the northwest corner of survey No. 6,” and manifestly was made for the purpose of definitely locating the northwest corner of survey 6 with reference to the northwest corner of the cemetery.

Defendants filed motion for new trial, setting up that: “(a) The verdict was unsupported by and against the overwhelming weight of the evidence; (b) the court erred in its charge to the jury; and (c) that the judgment, as rendered in this cause, is not supported by, and in accordance with, the verdict of the jury entered herein for this; said verdict being as follows: ‘We, the jury, in the case numbered 6052, find for the plaintiff for the land sued for.’ And these defendants show to the court that the land sued for embraced a strip of land only fifty (50) varas wide; beginning at a point on the west boundary of the Pridham survey, 2,003 varas south from the northwest corner of said Prid-ham survey, which beginning point these defendants show the court was conclusively shown by the evidence to be fifty (50) varas plus seventy-three (73) from the northwest corner of the cemetery, and hence the strip of land sued lacked eighty feet (80) reaching to the northwest corner of the cemetery, and, under plaintiff’s own pleading, they were not entitled to any land lying south of said point eighty (80) - north of the northwest corner of the cemetery; but they show to the court that the judgment entered herein decrees to plaintiff all land lying south of said point, located as above stated, eighty (80) - north of the northwest corner of the cemetery, thus embracing a strip of land eighty feet (80) wide not sued for, and to that extent the judgment of the court is contrary to the verdict entered in this cause, and unsupported by the pleadings, and for which reasons they pray the court that the judgment entered on the verdict of the jury be set aside.”

The motion was overruled, but the original judgment entered was reformed and amended, so as to give plaintiff judgment for the following premises: “Beginning at a point on the west line of survey No. 274 (patented to Valentine and Johnathan H. Winters, as assignees of Peter U. Pridham, patent No. 589, vol. 8, dated June 1, 1875, recorded in Book F, p. 283) 2,003 varas southerly from the northwest corner of said survey No. 274, which beginning point is north 23 varas from a rock and mortar monument, claimed by the defendants in their pleadings as the northwest corner of survey No. 6, and which said monument is 153 feet northerly from the northwest corner of the fence around the city cemetery of the city of El Paso, El Paso county, Tex.; thence from the point so established as the beginning point of the land sued for, southerly 50 varas to the northwest corner of survey No. 6; thence east with the north line of said survey No. 6,” etc., (following the description given in the petition back to the beginning). This reformation doubtless was based upon paragraph of motion for new trial, quoted above.

Plaintiff thereupon filed motion to set aside the amended judgment, which being overruled, it prosecutes this appeal.

The verdict rendered in this case settled nothing, and was wholly insufficient as the basis of a judgment which would settle the boundary issue. Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Reed v. Cavett, 1 Tex. Civ. App. 154, 20 S. W. 837; Edwards v. Smith, 71 Tex. 156, 9 S. W. 77; Merrell v. Kenney, 45 S. W. 423; Bank v. Webb, 128 S. W. 426; Wilhelm v. Baumann, 133 S. W. 292; Johnson v. Gary, 157 S. W. 237; Best v. Splawn, 33 S. W. 1005; Bailey v. Baker, 42 S. W. 124.

It is a general one in plaintiff’s favor “for the land sued for,” and, upon reference to the plaintiff’s pleadings to ascertain what was found in its favor, we find a description that refers to no known and fixed object by which the premises can be located with accuracy. The description in plaintiff’s petition fixed the beginning point of the land sued for 2,003 varas southerly from the northwest corner of the Pridham survey No. 274, without naming any definite object which would identify said- corner, and then followed with the call “thence southerly 50 varas to the northwest corner of survey No. 6,” without naming -any object by which such corner could be identified. The calls for the lines and corners of 7 and 8 do not aid the insufficiency in any way, and there is no definite, fixed object named in the petition by which the land sued for can be accurately and certainly located upon the ground. It is necessary only to refer to the authorities noted above to show its insufficiency. Further discussion of the subject would be without profit.

The trial court, doubtless realizing the state of affairs, undertook to remedy the situation in its judgment, by locating the northwest corner of 6 with reference to objects upon the ground, viz., rock and mortar monument, and corner of city cemetery fence. The location of this corner was the very point in issue. It is the province of the jury to find the facts, and of the court to render judgment upon their findings. The verdict alone must constitute the basis of the judgment and the court is wholly without authority to go beyond the verdict and look to the evidence to determine what judgment to render, and it matters not how conclusive the evidence may be upon any particular issue. The verdict of the jury having failed to locate the disputed comer and line, or furnish data by which it might be made certain, the court was without authority to resort to the evidence to supply the defect. Bennett v. Seabright, 32 S. W. 1048; Brient v. Bruce, 5 Tex. Civ. App. 580, 24 S. W. 85; McCurdy v. Bullock, 2 Tex. Civ. App. 223, 20 S. W. 1110; Smith v. Tucker, 25 Tex. 594; Claiborne v. Tanner, 18 Tex. 69; Akin v. Jefferson, 65 Tex. 137; Curlee v. Kogan, 136 S. W. 1126; Williams v. Smith, 98 S. W. 916; Mays v. Lewis, 4 Tex. 38; Clendenning v. Matthews, 1 White & W. Civ. Cas. Ct. App. §§ 904, 907; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; Thompson v. Albright, 14 S. W. 1020. For reason indicated the cause must be reversed.

Appellant asks that it be rendered in its favor upon the jury’s verdict, and that the northwest corner of survey 6 be fixed at the point, “as alleged in defendants’ answer, 4 feet west from northwest corner of the city cemetery,” upon the theory that the insufficiency of the description contained in the petition might be aided by that contained in the answer, which, it is contended, fixes such corner at the point indicated. We do not so understand the description of the answer; it fixes the corner at a mound of stone set in cement 153 feet north of the point 4 feet west of the northwest corner of cemetery. Furthermore, the jury’s finding is with reference to what plaintiff sued for, and not according to any claim of the defendants.

By cross-assignment appellees submit that, under the pleadings of plaintiff and defendants and the evidence, the verdict of the jury and judgment of the court should have been for the defendants for the land described in the answer of said defendants, and ask judgment for the land claimed in their answer, and, in the alternative, that the cause be affirmed. What has been said above with regard to the authority of the court to go beyond the verdict and look to the evidence for the proper judgment to render likewise disposes of the cross-assignment, since it is predicated upon the theory that the court has such a right.

Reversed and remanded.


author: MOURSUND, J.

text:
    MOORE v. LEHMANN.
    (Court of Civil Appeals of Texas. San Antonio.
    March 18, 1914.)
    1. Boundaries (§ 46) — Establishment — Agreements between the Parties.
    Where the line in controversy was that of five surveys out of a group consisting of a number of surveys, all constituting one tier, calling for each other, and all surveyed by the same surveyor, an agreement as to the line of one of the surveys, separated from the nearest survey in controversy by three other surveys, is not binding as to the lines in controversy.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec: Dig. ' 46.]
    2. Trial (§ 237) — Requested Charges — Further Instructions — Burden oe Proof.
    Where the court had charged that the burden was upon the plaintiff to establish his case by a preponderance of the evidence, it was proper to refuse a requested charge that, if the evidence left the jury in doubt, they should return a verdict for the defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 542, 548-551; Dec. Dig. § 237.]
    3.. Boundaries (§ 37) — Establishment-Sufficiency of Evidence.
    In trespass to try title, evidence held sufficient to warrant the jury in finding that the corner of one of the surveys in controversy was that located by a surveyor who testified for the plaintiff, and not that located by one who testified for the defendant.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. § 37.]
    4. New Trial (§ 102) — Grounds—Newly Discovered Evidence — Materiality.
    Evidence, discovered after the trial of an action of trespass to try title which consisted of the testimony of a surveyor, who testified for the plaintiff that he had discovered the bearing trees for a certain corner not in controversy, but belonging to the same group of surveys, to be as claimed by the defendant, but that he still contended that his location of another corner, which was in controversy, and concerning which he testified at the trial, was correct, did not require the granting of a new trial to the defendant, where it appeared from the original testimony that he did not dispute the location of the former corner, and his failure to give the testimony as to the finding of the trees was due to the failure of defendant to ask him concerning them.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    Appeal from District Court, Maverick County; W. C. Douglas, Judge.
    Trespass to try title by F. Lehmann against Elizabeth Moore, individually and as guardian of G. Bedell Moore, a minor. Judgment for the plaintiff, and defendant ap peals.
    Affirmed.
    McFarland & Lewright, of San Antonio, and Ben Y. King, of Eagle Pass, for appellant. J. R. Sanford, of Eagle Pass, and T. T. Vanderlloeven, of San Antonio, for appellee:

      For other cases see same topic and section NUMBER in Dec. Dig. '& Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

This suit was instituted by appellee against appellant in the form of trespass to try title. By agreement the issue was confined to the determination of the correct boundaries, as made and established by the original surveyor, between the abutting surveys owned by the respective parties. The trial resulted in a verdict and judgment awarding the plaintiff, Lehmann, the land in dispute.

By the first assignment of error the sufficiency of the evidence to sustain the judgment is questioned; it being contended that plaintiff and defendant agreed that the north line and northeast corner of survey No. 72 was at the point designated by surveyor Whiteaker, and that by the adoption of the line established by surveyor Barker the line so agreed upon was disregarded. No evidence is shown in the statement from which an agreement as to the location of the lines in controversy could be found to have been made. Nor was any such issue submitted to the jury. The controversy was as to the line between surveys 75, 76, 77, 78, and 79 owned by appellant and survey No. 2 owned by appellee. It appears that surveys 72' to 80, inclusive, constitute a tier of surveys calling for each other, and surveyed in 1848 by the same surveyor; also that White-aker’s location of the northwest corner of survey 72 was satisfactory to appellee and agreed to by him as correct, and his home tract was located in accordance therewith. There are seven surveys between No. 72 and No. 75 (fractional numbers being given some of the surveys); and, while the line of Í2 was agreed upon as correct, such agreement could not bind appellee as to the lines in controversy in this suit. The assignment is overruled.

There is no merit in the second assignment. The court instructed the jury that the burden of proof was upon the plaintiff to establish his ease by a preponderance of the evidence, and it was proper to refuse a special charge to the effect that if the testimony left them in doubt as to the true location of the lines, to return a verdict for defendant. Railway v. Reagan, 34 S. W. 798; I. & G. N. Ry. Co. v. Villareal, 36 Tex. Civ. App. 532, 82 S. W. 1063; Railway v. Davis, 84 S. W. 669; Brewer v. Doose, 146 S. W. 323.

The third assignment reads as follows: “The trial court erred in overruling defendant’s motion for a new trial because the verdict of the jury establishing the boundary lines in question as they were located by surveyor Barber is erroneous and contrary to the evidence, in this ? That the undisputed evidence shows that surveyor Whiteaker located the north line of survey 79 and the south line of survey 80 at a point where such line was run by the original surveyor to cross Los Moras creek, at a point where, owing to the rock formation of its bed, its location could not have changed since the making of the original survey, and that he found original bearing trees, at the northeast corner of survey No. 79, that this line, creek, and corner all corresponded with the field notes of the original surveyor who made all of the surveys called for as part of the western boundary of survey 2, and established mathematically correctly the location of all such surveys and of the western boundary lines of survey No. 2 as shown by Whiteaker’s map, wherefore should so much of said judgment as establishes the western boundary of survey No. 2 be by this court set aside.” It does not appear that White-aker found original bearing trees at the place he took to be the northeast corner of survey 79, but did find an original bearing tree at the place located by him as the southeast corner of survey No. 80, which corner, if the field notes be correct, should be 297 varas west of the northeast corner of 79. But Barker identified the southeast corner of 79 at a place from which a line running north would intersect a projection of the south line of No. 80 at a point only 76 varas from the point identified by Whiteaker as the southeast corner of No. 80. Barker testified to finding an old marked tree and a stump corresponding to the location of the bearing trees for the southeast corner of No. 79, and the jury accepted his theory that the place so identified by him was in truth the southeast corner of survey 79. If the corner as located by Barker be correct, then it appears that the surveyor who originally made the surveys made a mistake in the distance with respect to the north line of 79, or else in running north from the southeast corner of said survey he ran approximately 216 varas east of the true north course. Survey 79 calls to begin at the northwest or upper river corner of No. 78; thence east 3,836 varas, a marked corner; thence north 1,020 varas to a marked corner; thence west 3,495 varas to Los Moras creek, and 4,210 varas to river, another marked corner. Survey 80 calls to begin at northwest corner of 79; thence east 805 varas to Lós Moras creek (which ca]J. does not correspond by 90 varas with the same call in the field notes of No. 79), and 3,913 varas to marked corner for southeast corner of No. 80. It appears that surveys 78, 79, and 80 were made on April 16, 1848, and that survey 77 was made on April 27, 1848, while surveys 76 and 75 were made on April 17, 1848. The date given for survey 77 is doubtless a mistake, and should be April 17th. The surveys purport to have been made from down the river, and survey 75 calls for its beginning at the upper corner of 74, while 76 calls for its beginning at the upper corner of 75, and thus each survey is constructed upon the one preceding it in number, but according to the field notes the last three surveys were made before those upon which they are constructed. As survey 79 calls to begin at the upper corner of 78, at the mouth of Los Moras creek, it is.likely that such point was selected for the beginning point of the surveys in making the work upon the ground. The course pursued in making these surveys is not clearly enough defined to establish that no mistake was made in calling the distance between the southeast corner of No. 80 and northeast corner of No. 79 to be 297 varas, nor can it be said that, even if the northeast, corner of 79 was originally located 297 varas east of the southeast corner of No. 80, it would necessarily disprove the correctness of Barker’s contention regarding the location of the southeast corner of 79. Barker testified that, using the marked tree found by him at the place he identifies as the southeast corner of 79, and locating the corner therefrom, he found a burnt stump which would fit the bearing as to course and distance within a foot; that in his 12 years’ experience he had never found bearing trees to fit field notes closer. 1-Ie also testified that, if the southeast corner of 79 was located at the point contended for by Whiteaker, one of the bearing trees would have been on the side of a rock “juajilla” hill, where he saw no indication that any tree had ever grown. Neither surveyor was able to find any trees which he took to he bearing trees for the northeast corner of 79. Whiteaker did not consider the fact that the tree and stump at Barker’s southeast corner of 79 corresponded so closely with the field notes to be important, contending that in a heavily wooded country a person could go anywhere and get two trees to fit a call, and that there was quite a lot of timber at this place. He also considered the fact that a larger tree than the marked one was closer to the place adopted, as the corner tended strongly to show that such marked tree was not a bearing tree.

We have considered all the testimony carefully and conclude that we would not be justified in holding that the evidence in favor of appellant’s contention as to the location of the east line of No. 79 is of such character that we would be justified in setting aside the verdict. There was evidence from which the jury could reasonably find that the southeast corner of No. 79 was at the place identified by Barker, and, there being no means of identifying any place as the northeast corner of No. 79, except by running course and distance from the southeast corner of such survey and the northwest corner thereof, the northeast corner would be located at the intersection of the lines so run. By this assignment of error only the location of the east line of 79 is attacked, no contention being made that the southwest corner of survey 75 as located by Barker was not supported by evidence. The corners ° relied upon by Whiteaker were the southeast corner of No. 80, the northwest corner of 72, and the southwest corner of No. 74%, all of which, while persuasive in showing the location of the intermediate surveys, would be overcome by the actual location of the southwest corner of No. 75 and the southeast corner of No. 79, because from such corners the east lines of surveys 75 to 79 can be more accurately determined. The evidence supports the verdict, and the assignment is overruled.

By the fourth assignment' complaint is made because the court refused to grant a new trial on the ground that after the trial one of appellant’s attorneys learned from witness Barker that said witness did go to the northeast corner of survey 79 and the southeast corner of survey 80, and found the bearing trees described by Whiteaker as having existed at said corners, and found Whiteaker’s survey of said line to be correct. Before taking up the testimony of Barker, when called to testify upon the hearing of the motion for new trial, we wish to again call attention to the fact that Whiteaker did not identify any bearing trees for the northeast corner of No. 79, and Barker testified he did not find any bearing trees for said corner. Barker testified during the trial that he located the northeast corner of No. 79 at "a point 76 varas east of the southeast corner of No. 80, and that his corner was 3,240 varas from Los Moras creek. As Whiteaker testified that the -northeast corner of No. 79 as located by Barker was about 81 varas east of the southeast corner of No. ,80, it will be seen that the jury must have fully understood that Barker admitted the location of the southeast corner of No. 80 to be as claimed by Whiteaker. In testifying upon the hearing of the motion for new trial, he admitted finding the tree by which Whiteaker located the southeast corner of No. 80, and his belief that it was an original bearing tree for said corner, but contended the evidence was more conclusive as to the correctness of his location of the southeast corner of 79 than the evidence of the correctness of White-aker’s location of No. 80. He again testified that he found no bearing trees for the northeast corner of No. 79. It appearing that upon the trial he did not dispute the location of the southeast corner of No. SO, and that his failure to testify to finding the bearing tree was caused solely by the failure of appellant’s counsel to interrogate him upon that point, the court did not err in overruling the motion for new. trial. The assignment is overruled.

The judgment is affirmed.