author: MOURSUND, J.

text:
    GULF NAT. BANK v. SHELTON et al.
    (No. 5657.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.)
    1. Garnishment <&wkey;Gl — Obligations Subject to Garnishment.
    One who would garnish assets derived from or through an executor or administrator must show that the original title by which the executor or administrator holds the property has changed, and that he now holds the property in some capacity other than as a representative of the decedent.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. § 119; Dec. Dig. &wkey;361J
    2. Garnishment <&wkey;61 — Moneys Subject to Garnishment — Statutes.
    Rev. St. 1911, art. 3447, provides that, when the court has passed upon a claim against the estate of a decedent, its action shall be entered upon the claim docket and indorsed on the claim, together with the classification, while article 3452 declares that such action shall have the force of a final judgment. Articles 3458, 3459, define the classes of claims, and provide that, when there is a deficiency of assets to pay all claims of one class, they shall be prorated, while articles 3464, 3466, require the executor or administrator to file after 12 months an exhibit setting forth a list of all claims presented, specifying those rejected and allowed, and provide that upon the return of the exhibit, if it shall appear that the estate is solvent, taking into consideration all claims presented on which suit has been or yet can be instituted, it shall be the duty of the county judge to order immediate payment. Articles 3467, 3470, declare that, if the funds on hand are not sufficient for the payment of all claims, the court shall order payment of claims having a preference, and that in all cases where an order shall be made by any county judge for an executor or administrator to pay over money such executor or administrator shall for failure be liable on his official bond for damages at the rate of 5 per cent. p month. An order was made allowing and classifying a claim in favor of a judgment debtor as a claim of the second class. Held, that as, in view of article 3466, payment by the executor need not be made for 12 months, funds in the hands of the executor are not during that time subject to garnishment, though it be averred that the estate is solvent.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. § 119; Dec. Dig. <&wkey;>61.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by the Gulf National Bank against T. H. Bass and others, in which H. H. Shelton and others were garnished. Prom a judgment for garnishees, plaintiff appeals.
    Affirmed.
    Terrell, Walthall & Terrell, of San Antonio, for appellant. James Routledge, of San Antonio, for appellees.
   MOURSUND, J.

On March 27, 1913, in cause No. 88 in the district court of Jefferson county, styled Gulf National Bank v. T..H. Bass, O. L. Bass, and Mally Eastham, the plaintiff recovered a judgment against all of the defendants for $3,468.33, with interest thereon at the rate of 8 per cent, and for foreclosure of lien on 25 shares of stock in the Union Trust Company. On November 22, 1914, plaintiff filed its affidavit for a writ of garnishment against H. H. Shelton, Dwight E. Potter, and Luisa Wilhelmi, as executrix of the estate of Dolores G. Wil-helmi. The writ of garnishment was issued and served. Luisa Wilhelmi answered on December 24, 1914, by certain exceptions to tlie affidavit and writ of garnishment, and prayed that the application be quashed. On December 24, 1914, she answered that she was not, and had not been at the time the writ was served upon her, indebted to O. L. Bass, and that she had no effects belonging to him, etc. On December 31, 1914, the Gulf National Bank filed an affidavit controverting Luisa Wilhelmi’s answer, in which it was alleged that defendant O. L. Bass had performed legal services for the estate of Dolores Wilhelmi, deceased, of which Luisa Wil-helmi is executrix, which estate is pending in Bexar county, Tex., and for which services 1-Ion. J. R. Davis, judge of said court, has approved and allowed a fee to said O. L. Bass amounting to $7,500, and duly entered an order of which a copy was attached to the controverting affidavit. It was further alleged that the approximate value of the estate is $60,000; that plaintiff is informed and believes that all first-class claims against the estate have been paid and satisfied, and that in due course of time the claim of said Bass, being a second-class claim, will be paid; that the total sum of all second-class claims against said estate outside of the sum due Bass does not exceed $5,000;' that ijo part of said fee has been paid by said executrix, but that she, as executrix of said estate, is still indebted to the defendant Bass in the said sum of $7,500. The order by the probate court, after reciting the finding that the amount of $7,500 was the reasonable value of the services of Bass, provides as follows:

“Wherefore it is considered, ordered, adjudged, and decreed that O. L. Bass do have and recover the sum of $7,500, together with 6 per cent, interest per year from date hereof, from the estate of Dolores Gonzales Wilhelmi, and that same classed as a second-class claim as defined under article 3458 of Revised Civil Statutes of the state of Texas, and that said sum. shall be paid to said Bass by Luisa Wilhelmi, as executrix of the will of Dolores Gonzales Wilhelmi, or by any successor of said executor, out of any funds, available and that may become available for such purpose.”

The cause was transferred to the district court of Bexar county, fifty-seventh district. C. L. Bass filed his amended petition of intervention, and Luisa Wilhelmi her answer to the controverting affidavit. The court sustained the general demurrers urged by Bass and Mrs. Wilhelmi to the garnishment proceedings and the controverting affidavit, and the plaintiff having failed to amend, and announced that it would not do so, judgment was entered that plaintiff take nothing against the garnishee Luisa Wilhelmi, as executrix of the estate of Dolores G. Wilhelmi. The proceedings were dismissed as to Shelton and Potter.

The only question to be decided is whether, under the allegations of the controverting affidavit, the claim of Bass evidenced by the order of the county court can be subjected to the payment of appellant’s judgment by means of garnishment proceedings instituted against Luisa Wilhelmi, executrix.

The rule formerly was that executors and administrators were not subject to garnishment at all unless the right was given by statute. But, as this rule was based upon the proposition that one court could not be permitted to interfere with or encroach upon the jurisdiction of another, and not upon the theory that persons justly indebted to others should have assets exempted from the payment of their just debts because they collected them through an officer of the probate court, it was found by many courts that some modification of the original rule was called for. It'was therefore held that, when a decree of distribution has been made whereby each share is finally and definitely determined, such share may be reached by garnishment on the theory that a cause of action exists in favor of the distributee in his individual capacity. Boyer v. Hawkins, 86 Iowa, 40, 52 N. W. 659; Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Harrington v. La Rocque, 13 Or. 344, 10 Pac. 498; Re Nerac, 35 Cal. 392, 95 Am. Dec. 111. Mr. Woerner, in his work on the American Law of Administration, vol. 1, § 177, says:

“And, since the ownership is in the first place always that of executor or administrator, it is incumbent upon any one who would attach a right to the assets derived from or through the executor or administrator personally to show that the original title has been changed, and that he holds the property in some other capacity, which may be done by proving a sale, conversion, or merger in any of the methods by which a personal representative may divest the title of his testator or intestate. Hence, since an order of distribution, or to pay debts or legacies, operates to change the representative’s official to a fixed personal liability, it follows that he may thereafter, and before payment, be summoned as garnishee by an attaching or execution creditor of the beneficiary to whom the executor or administrator is ordered to pay. Conversely it is generally held that, while holding in his representative character, he is not subject to garnishment process, unless he is made so by express statutory provision, as is the case in a large and increasing number of the states.”

In section 411 the author describes the order to pay debts meant by him in the above quotation. Briefly stated, it is an order made after the time for proving debts has expired, or the time for proving the preferred class has expired, and the administrator or executor has made a complete statement of the condition of the estate. The author says:

“The court will thereupon decree the payment of the debts which have been proved, in the order of the classes to which they were assigned, each class to be paid in full before the next inferior class receives anything; and when the assets are sufficient to pay a part, but not the whole, of the debts of any one class, the creditors of that class will be payable pro rata. The order or decree of payment so made corresponds in some measure to the judgment de bonis pro-priis at common law, because, having ascertained the amount of assets in the administrator’s hands available for the payment of debts, and also the amount to which each creditor is entitled, the court, by its order or decree, renders judgment against the administrator, making him liable personally to the creditor for the specified amount, which is enforceable by execution against him, and by suit on the bond of his sureties, and subjecting him thereafter, in most states, to garnishment by a creditor of the creditor whom he is ordered to pay.”

Mr. Freeman, in his work on Executions, in section 131, says:

“When the share of a creditor, heir, legatee, ward, or other person entitled to moneys in the hands of an administrator, executor, or guardian has been settled by the court and ordered to be paid, it is no longer regarded as in custody of the law. The right to it has became fixed, absolute, and capable of enforcement by action at law. It may therefore be garnished.”

This statement of the rule is a brief statement of the same rule announced by Mr. Woerner, as is shown by the construction placed thereon by Mr. Justice Bonner, in Pace v. Smith, 57 Tex. 561.

Mr. Shinn, in his work on Attachments, apparently limits the exceptions to the old rule to cases in which a change has been made by statute, and makes the following succinct statement of the rule to be applied in determining when garnishment will lie, which is a substantial repetition of the rule announced by Mr. Woerner and Mr. Freeman, viz.:

“In states permitting an executor or administrator to be made a garnishee, he may be held as such whenever the person to whom he is to pay the legacy or distributive share may maintain an action at law against such executor or administrator. After a court has decreed a distribution of the proceeds in the hands of the administrator, such administrator may be held as garnishee.”

It has never been held that the rule announced by these authors, and in the cited cases, was the law in this state, and in fact there are expressions in some of the opinions indicating an intention to adhere strictly to the old rule. However, our Supreme Court has recently held, in the case of Turner v. Gibson, 105 Tex. 488, 151 S. W. 793, that a balance in the hands of a sheriff, after satisfying an execution, was subject to garnishment; that it was held in a private, and not an official, capacity, and the opinion of the court shows that said court does not favor a rule to the effect that all funds which come into the hands of an officer of the court remain in the custody of the law as long as in his hands, but one which limits the custody of the court to such time as is necessary to protect its jurisdiction from invasion by another tribunal or officer. In the opinion of the Court of Civil Appeals, approved by the Supreme Court, reported in 152 S. W. 840, the case was distinguished from the cases of Pace v. Smith, 57 Tex. 555, and Loftus v. Williams, 24 Tex. Civ. App. 393, 59 S. W. 291, on the ground that the sheriff held it under a statute, and not subject to the order of any court, and- there was no order of any court directing its payment. We will not pause to inquire whether this distinction is well founded; for the statute relating to the duty of the clerk in such matters and the rules applicable differ from the statutes relating to estates of decedents and the construction of such statutes by our courts.

We conclude that the rule stated by Mr. Woerner, and followed in the cases first cited herein, correctly states the test to be applied in determining when the custody of the court ceases in the administration of estates of decedents, and, there being no case in our state in which the contrary has been directly held, it will be applied by us in this case.

In this connection we find that our statutes relating to the estates of decedents contain nothing inconsistent with such rule. We will state the substance of the articles deemed material, and then discuss the question whether the order approving Bass’ claim was such a one as made the executrix liable to garnishment. Article 3435 requires claims to be presented within 12 months, or payment thereof will be postponed until after those presented within that time. Article 3436 requires claims for funeral expenses and those of the last sickness to be presented within 60 days, or else property set apart as exempt or for allowances made the widow and minor children will not be liable for the payment thereof. Article 3446 provides that all claims allowed by the executor or administrator shall be acted upon by the court at a regular term, and either approved in whole or in part or rejected, and shall at the same time be classified. Article 3447 provides that, when the court has passed upon a claim, its action shall be entered upon the claim docket and indorsed on the claim, together with the classification.. Article 3452 provides that such action of the court shall have the force and effect of a final judgment, from which an appeal may be taken. Article 3458 defines the classes of claims. The first class comprises claims for funeral expenses and those of the last illness, while the second class comprises expenses of administration and those incurred in the preservation, safe-keeping, and management of the estate. The other classes need not be mentioned. Article 3459 provides that, when there is a deficiency of assets to pay all claims of the same class, they shall be paid pro rata; and no executor or administrator shall be allowed to pay any claims, whether the estate is solvent or insolvent, except with their pro rata amount of the funds that have come to hand. Article 3460 provides that executors and administrators, whenever they have funds in their hands, shall pay: (1) The first-class claims presented within 60 days; (2) allowances made to the widow and children or either; and (3) second-class claims above- defined. Article 3462 provides that, whenever the executor or administrator has funds sufficient to pay a claim or any part thereof, and fails to make payment when required to do so by the owner of the claim, such owner may obtain an order directing such payment to be made, upon proof that there are funds which should be paid thereon. Article 3464 requires the executor or administrator, after 12 months to file an exhibit setting forth a list of all claims presented within 12 months, specifying those allowed by him and those rejected, and the date of their rejection, also those sued upon, and shall state the condition of the suit, also setting forth fully the condition of the estate. Article 3466 reads as follows:

“Upon the return of such exhibit, if it shall appear therefrom, or from any other evidence, that the estate is solvent, taking into consideration as well the claims presented before the expiration of twelve months from said granting of letters testamentary or of administration on which suit has been, or can yet be, instituted, as those so presented, allowed and approved, or established by judgment, and that the executor or administrator has in his hands sufficient funds for the payment of all the aforesaid claims, it shall be the duty of the county judge to order immediate payment to be made of all claims allowed and approved or established by judgment.”

Article 3467 provides that, if the funds on hand are not sufficient for the payment of all the claims, or if the estate be insolvent, the court shall order the funds to be applied to the payment of all claims having a preference, in the order of their priority, if they or any of them be still unpaid, and then pro rata to the payment of the other claims. Article 3470 provides that in all cases where an order shall be made by any county judge, under the provisions of title 52, for an executor or administrator to pay over money to any person, and such payment is not made when demanded, such executor or administrator shall be liable on his official bond for damages at the rate of 5 per cent, a month for every month he shall neglect payment.

It appears from the articles of the statutes referred to that claims of the first class presented within 60 days may be paid at the end of that time, and should be paid then if there are sufficient funds on hand; that claims of the first class presented after 60 days fall into a class subordinate to allowances to the widow and minor children, but still having preference over claims of inferior grade, if filed within 12 months; that all other claims must be filed within 12 months in order to be entitled to payment according to classification. There is no provision made for payment under order of court until after 12 months, although it is contemplated that the executor or administrator will pay the first-class claims filed within 60 days as soon as he has sufficient funds on hand without an order of court directing such payment. The court is required to make an order allowing or rejecting each claim, and classifying those allowed, This order is noted on the claim docket and on the claim, but it is not contemplated that it shall be entered in the minutes. After the 12 months have expired and the exhibit has been filed the court makes an order directing the payment of claims, which order is entered on the minutes. This order is made in contemplation of the funds on hand, and when it is made the claimants are entitled to their money, and, if not paid, can sue on the bond for a penalty, and the money due them.

The order made in favor of O. I». Bass was entered on the minutes, but it is evident it was merely an order allowing and classifying a daim, and that it did not require the immediate payment of the amount; for it provides that it is to be paid out of any funds available and that may become available for the purpose. Instead of indorsing on the claim docket and on the claim the action of the court, it was entered as an order or judgment, but it is clear that it was not such an order as would subject the executrix to suit on her bond for failure to pay at once. The provision that the sum is to be paid out of any funds available or that may become available has no place in an order allowing a claim, and may be treated as surplusage; for the statutes provide the course to be pursued and the rights of the parties whose claims are allowed." It cannot be contended that the order constitutes a judgment directing the payment of money under article 3466 as well as an order allowing and classifying a claim; for it fails to disclose any intention to enter an order of such character as to require the immediate payment of the money under the penalty of paying 5 per cent, per month as damages. The court did not make a single statement which indicates that it had examined into the condition of the estate and determined that there was sufficient money on hand to pay the claim, and that under the law such money was required to be applied to the payment thereof. We do not think the order could be aided by proof of th.e circumstances under which it was made, but, if it could, the allegations in the controverting affidavit fail to show that 12 months had expired from the date of granting letters testamentary, and that an exhibit had been filed showing that the court was warranted in ordering the money paid at once. On the contrary, the allegations only show that the value of the estate is some $60,000, that plaintiff is informed and believes that all first-class claims have been paid, and that in due course Bass’ claim will be paid, and that the total amount of second-class claims, besides that of Bass, does not exceed $5,000.

As the order was not one which had the effect of making the executrix liable to a suit against her individually for failure to pay at once, the rule approved by us does not apply, and the judgment must be affirmed, unless it is the law that, when a claim has been allowed by- the executrix and approved by the court it can be reached by garnishment, provided it is alleged and proven that the condition of the estate is such that it is certain the claim will eventually be paid. Such a rule would mean that whether the claim was subject to garnishment depends upon the decision of a question of fact in each case. We are sure that this cannot be permitted; for representatives of estates of decedents would be subjected to suits in their representative capacity to determine whether ultimately they would become liable individually, and much expense would be incurred not properly taxable against the administrator individually, nor against the estate. Besides, a claim not at once payable is not such a claim as our garnishment statutes contemplate may be reached.

The trial court was correct in sustaining the demurrers.

The judgment is affirmed.
      (g^jFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes 182 S.W. — 22


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    GOODRICH et al. v. WEST LUMBER CO. et al.
    (No. 13.)

    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 21, 1915.
    On Rehearing, Jan. 6, 1916.)
    1. Boundaries <&wkey;37 — Location oe Line and Corner oe Survey — Sufficiency of Evidence.
    In trespass to try title, evidence held to show the location of the northwest corner of a certain survey, and that a boundary line should run north 43 degrees east from such corner to the northeast corner of the survey, unless arrested.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 181 — 194; Dec. Dig. <&wkey;>37.]
    2. Evidence &wkey;>460 — Description of Land-Call of Survey — Control by Parol Evidence.
    Where a call in the field notes of a survey makes no reference to objects upon the ground indicating the footsteps of the surveyor, such call cannot be controlled by parol evidence of the existence of such objects, except in actions to correct mistake; but the rule does not apply when the evidence of facts and surrounding circumstances, extraneous to the call, is simply in aid of a call found in the field notes, to remove an ambiguity, and determine which of two or more conflicting calls shall prevail.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. <&wkey;>460.]
    3. Evidence <&wkey;83 — Description of Land-Presumption of Marking of Corner.
    It will be presumed that a surveyor marked a corner which his notes state he established on a tree locating it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dee. Dig. <@=^83.]
    4. Boundaries <&wkey;33 — Description of Land —Evidence—Existence of Bearing Trees —Presumption.
    In trespass to try title, where nothing was shown to arrest the established northwest line of a survey over lands which had been cleared of timber, the presumption was that the bearing trees at the points .called for by the field notes were there once, and, even in their absence, the boundaries of the survey would be fixed in accordance with the no,tes.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dee. Dig. &wkey;33.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Trespass to try title by Cornelia G. Goodrich and others against the West Lumbei Company and others. From a judgment for defendants, plaintiffs appeal.
    Reversed, and judgment rendered for plaintiffs.
    Crook, Lord, Lawhon & Ney, W. D. Gordon, and Thos. J. Baten, all of Beaumont, and Campbell & Campbell, of Houston, for appellants. Hill & Hill and S. H. German, all of Livingston, and Baker, Botts, Parker & Garwood, of Houston, for appellees.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is a suit in trespass to try title, filed on December 29, 1913, by Cornelia G. Goodrich, Mary W. Montgomery, Margaret M. Montgomery, .Edward L. Montgomery, Jr., Helen M. Krasicka, and Jeam Krasicka, as plaintiffs, against the West Lumber Company, P. R. Roe, J. W. Cochran & Co., J. W. Cochran, Alice Cochran, W. B. Cochran, and Arthur L. Blessing, as defendants. The suit was for the recovery of four leagues of land in Polk county, granted to Augustine Yiesca by the government of Coa-huila and Texas in 1833, and for the value of timber cut by defendants on a portion of said four leagues of land alleged to contain 2,027 acres, more or less. The land sued for is described as follows:

Situated in the county of Polk and said state of Texas, on the east bank of Trinity river, beginning on said bank of said river above the old Coashatta Indian village at pecan 14 inches in diameter, and it stands on a line 200 varas from the bank of the river Trinity, and is to the north 23 degrees east 3 varas from another pecan 18 inches in diameter, and to the north 62 degrees west 4y2 varas from a hackberry 24 inches diameter, and to the south 71 degrees west 1 vara from another hackberry 9 inches diameter, and also marked an elm 12 inches diameter, and it stands to the north 68 degrees west 100 varas from the above described corner, being the first landmark; thence north 43 degrees east 15,833 varas to a white oak 15 inches diameter, and it stands to the north 16 degrees west 4 varas from another white oak, and to the north 5 degrees east 3 varas from an ash 12 inches in diameter, and to the south 76 degrees east 9 varas from a white oak 15 inches diameter, being the second landmark; thence south 47 degrees east 7,500 varas to an oak 4 inches in diameter, being to the north 84 degrees east 11 varas from another oak 12 inches in diameter, and to the north 84 degrees west 10 varas from another oak 9 inches in diameter, being the third landmark; thence south 43 degrees west 10,830 varas to an ash 4 inches in diameter on the east margin of the aforesaid river, and it extends to the north 63 degrees west 7% varas from a sycamore 36 inches in diameter, and to the north 20 degrees 31 minutes west 16 varas distant from a sugar tree 14 inches in diameter, and to the north 21 degrees 30 minutes west at 24 varas distance from an elm 24 inches in diameter, and also stands to the north 68 degrees east 13 varas from a sycamore 24 inches in diameter, being the north and last landmark of this survey; and thence following the meanders of the aforesaid river up to the beginning point, containing four leagues of land, or an area of 100,000,-000 square varas, and being part and parcel of eleven leagues of land granted to Augustine Viesca by the government of Ooahuila and Texas.

Upon the trial the plaintiffs in open court dismissed their suit as to the defendant Arthur L. Blessing. There was also filed the following agreement:

“It is agreed that this is a boundary case, involving the true location of the fines of what is known as the A. Viesca four-league grant, situated in Polk county, Tex. The plaintiffs assert no claim to any part of this grant lying west or southwest of the line described as follows: Beginning at the southeast corner of J. S. Garner league, in Polk county, Tex., the same being also the southeast corner of a 38-acre tract of land owned by the defendant West Lumber Company out of said Garner league; thence north 49 degrees west with the east fine of said Garner league 2,400 varas to the most northern corner of said Garner league; thence south 41 degrees west with the said Garner upper fine 385 varas to the southeast corner of a 100-aere survey owned by the defendant West Lumber Company, known as the G. D. Martin survey; thence north 47 degrees west, at 1,128 varas across the Livingston and Patrick Ferry road, 1,979 varas Tempe creek, 2,300 varas Tempe creek, about 5,093 varas in all, to a stake in which a red oak bears south 10 degrees west 3 varas, a pine stump 36 inches in diameter bears south 81 degrees east 4.3 varas marked X; thence south 43 degrees west 765 varas to the north corner of a 75-acre survey, made for Mrs. Sarah M. Smith, a stake from which a 16-inch sweet gum bears south 60 degrees west 9 varas, a pine 8 inches in diameter bears north 86 degrees east 10 varas; thence north 47 degrees west to the upper fine of said Viesca four-league grant, wherever the same may be located.
“The plaintiffs own all of said Viesca four-league grant, if any, lying east and north and northeast of the line above described. The defendants own all of said Viesca survey lying west or southwest of the above-described line. The defendants, in addition, own the following surveys, all of which is junior in point of location to the A. Viesca four-league grant, and defendants’ title to said surveys is junior to any part of said land found to be within the boundaries of A. Viesca four-league grant; said surveys of land being as follows: Geo. W. Miles, one-third of a league; D. W. Smith, one-third of a league; Wm. White, one-third of a league; W. G. Hicks survey of 640 acres, which survey contains 522% acres, patented to L. O. McMicken, assignee of Buffalo Bayou, Brazos & Colorado Railway Company; I. F. Haynes 160-acre survey, 316%. acres patented to L. S. McMicken, assignee of Buffalo Bayou, Brazos & Colorado Railway Company; survey of 68.43 acres patented to P. R. Rowe.
“This agreement is made without prejudice to the questions of limitation pleaded by the defendants, or any questions of warranty that may be involved in this ease.”

During the progress of the trial the following agreement was entered of record:

“It is agreed by and between the plaintiffs and defendants J. W. Cochran & Co., J. W. Cochran, W. B. Cochran, Alice Cochran, and P. R. Roe that judgment shall be entered in the above entitled and numbered cause that these defendants have judgment for the lands described in their respective answers, except the 50 acres in the most eastern corner of the Buffalo Bayou, Brazos & Colorado Railway Company survey of 316% acres, which 50 acres was conveyed by the defendants J. W. Cochran & Co., J. W. Cochran, W. B. Cochran, and Alice Cochran to Mrs. Emmeline D. Taylor and M. M. French by deed dated October 10, 1903, and which is of record in Volume 21, pages 522 to 524, of the Deed Records of Polk county, Tex., and it is further agreed that these defendants recover of plaintiffs all costs incurred by reason of their being made parties herein. This December 16, 1914.”

There was some controversy, real or apparent, as to the beginning corner of the four-league grant, and also apparent dispute as to the location of the first line called for in the grant, which was the north line, or northwest line, running from the river out to what is referred to in this record as the “holly comer.” All of the corner trees and bearing trees have disappeared. It was the contention of the plaintiffs that such corner trees and bearing trees should be presumed to have been located at the distances called for in the grant. The field notes of the original grant called for the north line running north 43 degrees east 15,833 varas from the pecan, which is a line and hearing tree at beginning corner, to a white oak 15 inches in diameter standing to the north 16 degrees west 4 varas from another white oak, and to the north 5 degrees east 3 varas from an ash 12 inches in diameter, and from a white oak to the south 76 degrees east 9 varas 15 inches in diameter, the second landmark. But the defendants contend that said corner was not in fact located at 15,833 varas from said bearing tree, but at 14,670 varas from the place of beginning, and at a place called in this record the “holly corner.” The defendants introduced evidence of an old marked line running off from the point referred to in the record as the “holly corner,” and running south 47 degrees east from said place, and they relied upon this, among other things, to arrest the call for distance as given in the original grant, and assert that the old line referred to was the east line of the original grant. The plaintiffs contend that the four leagues should be located according to course and distance called for in the original grant. If the four-league grant should be located by course and distance called for in the original field notes, the plaintiffs would be entitled to recover against the defendant West Lumber Company all of the junior survey, Buffalo Bayou, Brazos & Colorado Railway Company, comprising 522% acres; also all of the Isaac F. Haynes, Jr., survey, comprising 160 acres; also the G. W. Smith, Jr., survey of 170 acres; also the Wm. White survey of 163.8 acres, and the W. C. Hicks, Jr., survey of 105 acres, and the G. W. Miles survey of 34 acres.

The following sketch shows the location of the land and the extent and amount of each junior survey in conflict with the Viesca four-league grant, when located according to course and distance called for:

The case was submitted to the jury by general charge of the court, special issues not having been requested, and the jury returned a verdict for the defendant West Lumber Company, and judgment was entered thereon that the West Lumber Company recover against the plaintiffs all of the land in controversy and that the plaintiffs recover nothing by their suit. Plaintiffs duly excepted to the charge of the court in many particulars, presented their special charges, and timely filed their motion for new trial, pointing out errors which they say were committed upon the trial of the case, and which said motion for new trial was by the court overruled. Plaintiffs duly excepted to said action of the court, perfected their appeal, and the case is now before us for disposition.

Our first inquiry will be whether it is shown there is a real dispute with reference to the location of the beginning corner, and with reference also to the north or northwest line of this league. There are no bearing trees to be found now standing where the appellants claim the beginning comer of this grant to be. Appellants say that the beginning corner should be and is on the bank of the river and in what is known as the Scarborough field, which said field is cleared and cultivated, and continues along the line of what appellants claim is the north line of this grant, for a distance of about 2,000 varas, and in all of that distance it being (as said) through cleared and cultivated land, and there are no objects on the ground to identify the place where appellants claim said north line to be. Appellants say that they have established the beginning corner 'of this grant and the northwest line of same by the uncontroverted evidence submitted on the trial, and by the admissions of appellees in their pleadings in court below, and cite us to the following testimony produced upon the trial of this case in support of their contention:

They say that appellees in their second amended original answer and cross-bill used the following language:

“The Minter northwest line, as shown by the Minter plat, is the northwest line of the A. Yiesca four-league grant, and well marked on the ground.”

They say, further, that the Minter plat introduced by appellees fixes the beginning corner on the Trinity river, and the northwest line of the Yiesca grant precisely as claimed by the appellants in this suit; the only difference being that Minter stopped at what is designated the “holly corner.” It is claimed that the West Lumber Company, appellee herein, holds directly under Wm. Carlisle & Co., and that Wm. Carlisle & Co. hold directly under the appellants in this suit by their deed a large portion of this Viesca grant, and that in this deed, under which the West Lumber Company, appellee, claims title, the same boundary lines are called for as contended by appellants; that in said field notes the northwest boundary line of said Viesca grant is called for, and that the next call starts south 43 degrees west with the said Viesca line 521 varas to the corner made for I. Jackson. The appellants also contend that in the West Lumber Company’s answer it is alleged as follows:

“Defendant further alleges that the lands owned by defendant West Lumber Company are described by reference, first, as all the lands described in the deed of Cornelia G. Goodrich and others, and that by the allegations then made this deed was intended to and did convey to Wm. Carlisle & Co. all of the lands at that time owned by the grantor on the Viesca four-league grant, whether expressed in said deed or not, and that all of the lands on the Viesca four-league grant owned by the plaintiffs in this suit, or by any other through whom they claim, as shown by the plat made by Civil Engineer Minter for Wm. M. Goodrich, deceased, for plaintiffs in this suit, or those under whom they claim.”

And it was also alleged by the appellees that these identical lands described by metes and bounds in the Goodrich deed to Carlisle had by deed been conveyed by the Goodrich heirs, and that the defendant in this suit was the owner of said land. Thus appellants contend that the' West Lumber Company affirmatively pleaded the boundary lines of the Viesca grant, and its location precisely as claimed by the appellants, the only difference being as to whether the Goodrich heirs did convey all of their land in the Viesca grant, and that if the line running out from the river north 43 degrees east is required to be stopped at what is known as the “holly corner,” instead of going to its full limit, then the 'plaintiffs had conveyed their land to the defendant through the deed to Carlisle & Co. The appellants claimed further that the contention resolved itself into a question, not where the Viesca grant lay, and not where its northwest boundary line actually was, and not where its beginning corner on the river was, for they claimed that these were admitted in the pleadings, and were undisputed by any litigant in the case; but they say that the question raised and the issue litigated was whether that line from the Trinity river north 43 degrees east should run out its complement or stop at what is known as the “holly corner,” and they refer to the agreement which has been heretofore set out in support of their contention.

Appellants further say: That, in addition to the allegations of the West Lumber Company’s answer to the suit above set out, there were a number of exhibits describing by metes and bounds certain surveys of land upon and adjacent to the Viesca grant, and calling for its boundary lines. That the West Lumber Company alleged that it claimed under the boundary specified in these exhibits. That Exhibit C, in describing the Beasley land, and the Garner conflicting survey with the Viesca, expressly says:

“The aboyo two tracts of land set aside to F. A. Gamer and others by decree of the United States Circuit Court at Galveston in cause 1003, Wm, M. Goodrich, Deceased, Revived in the Name of Cornelia G. Goodrich, Executrix, v. F. A. Garner and Others.”

And Exhibit J reads:

“Part of the four-league grant of Augustine Yiesca eleven-league grant”

—then describing the beginning corner to be on the east bank of the Trinity river, between the Goodrich and Garner surveys. And they claim that said Exhibit J expressly calls for and identifies the northwest boundary line of the said Viesca grant, and that the beginning corner on the river is in Scarborough’s field, that Scarborough got his deed from a man named Poitevent in 1892, and that the first descriptive call is:

“Also one other tract from off the A. Viesca tract, situated in Polk county, Texas, beginning at the northwest corner of said grant, on the east bank of the Trinity river, thence north 43 degrees east with the northwest line of said grant,” etc.

—and that Poitevent got this land from Goodrich in 1870, and the first call is:

“Beginning at the northwest corner of the four-league section of the said Viesca eleven-league grant,” etc.

We confess that the contention of appellants seems to he borne out by the record, and in addition thereto the testimony of J. W. Cochran, one of the appellants’ witnesses, only a part of the same being set out, is as follows:

“I own a part of the A. Viesca four-league grant. I own a part of the Scarborough, Jennings tract, George Davis tract, as I call it, ,and a part of the Garner. Mr. Scarborough is' the man who bought it about 40 years ago from Mr. Poitevent, and he lived on this land until he died, 3 or 4 years ago. He stayed there somewhere about 35 to 40 years. Mr. Scarborough bought that land from June Poitevent. This north line of the Viesca is supposed to run through the Scarborough field some place, and that north line crosses Mill Lake bayou somewhere northeast of my farm. Mill Lake bayou is about 2,000 varas, possibly more, northeast of the river there. It is 2,000 varas from the river to where the north line of this land crosses Mill Lake bayou, and that north line has the old. bearing trees on it. As to whether that old line I am talking about comes right through there: Well, the Ene I told you had the blazes on it comes through the field, or near the field. As to whether it comes down and corners on the river: Well, I don’t know where it comes to; if it come down to the bend, and strikes the river about Geneva bend, it would. If it didn’t change its course, it would strike the river at or near Geneva bend. It would go through the Scarborough field. I guess it will cross Mill Lake bayou about 2,000 varas, or possibly more, from the river. I have followed this line out as far as my land goes, and it goes to Mill Lake.”

L. F. Sloan’s testimony was as follows: That he and one of defendants’. witnesses named Garvey went on the land to locate the lines, and they found the northwest line of the Viesca, and ran it according to course and distance called for in the field notes back from what is called the “holly corner” to the river. And Sloan says he found the usual marks that are marked in the woods on old land lines, and they were old marks. Continuing he said:

_ “I continued that course until I arrived at the river. After crossing Mill Lake bayou we went to Mr. Scarborough’s field, and, of course, there was no line there, as that was all cleared land. Mr. Scarborough was living there — that is, just outside the four-league grant — and the line went through his field, and he was cultivating both sides of this line.”

Continuing he says:

“I went right through the Scarborough field, which was cultivated land, and wound up at the bank of the river. My recollection is there was a tree we found there at that time with an X on it; I think it was a pecan tree. It was, as I recall, just over the edge of the bank, about stood say 5 or 6 feet lower — that is, the ground at the tree 5 or 6 feet lower — from the top of the bank. I should say it was about 25 or 30 feet from the water’s edge. Of course, now, we did not make any measurements, or anything of that sort. Mr. Scarborough was living there —that is, just outside of the four-league grant— and the line went through his field, and he was cultivating both sides of that line. I don’t recollect whether he claimed to be the owner of the land, but it was known as the Scarborough field.”

Continuing he says:

“At that time, when I was there with Mr. Garvey [one of the defendants’ witnesses], and with Mr. Scarborough, and showed Mr. Scarborough where this line, the point where the line, strikes the bank of the river, Mr. Scarborough said that when he came to that place, which as I remember had been some 20 years ago, the tree called for in the field notes — is the way he put it, and the way we understood it— stood there on the bank of the river, at that point; but the tree that was this tree he referred to had fallen down, was gone, but I think there was a mark there of some sort, as I remember.”

The testimony of Mr. Sloan and Mr. Garvey shows that from this point they traced out the Viesca line according to calls and distance, finding on the said course the old marks of the line. Mir. Garvey, appellees’ witness, recounted the work done by him when he located these lines in 1900 for Wm. Carlisle & Co., who were then trading for the Goodrich land, and Mr. Garvey uses the following language:

“In 1900 I followed this line that I took to be, and that I now swear is, the original line of the Viesca grant on the northwest, and I traced that line out from the river 14,400 and some odd varas.”

Dave Green, another witness for appellees, testified that he was with Garvey in 1900 when he ran the line from the river out to what is called the “holly corner.” He said:

“I followed the line north 43 degrees east from down about Elbert Smith’s place up to the holly corner. We followed the line from the bank of the river up to that tree.”

Mr. Cochran, one of appellees’ witnesses, testified that he had known the Scarborough place ever since he could recollect, and that he could safely say for 40 years; that there had been no appreciable change as: to the river at the Scarborough house, but below the house there has been a considerable change.

“There is a high bend there, and there has been no change for the 35 or 40 years since I have known it. Where this Viesca line strikes the river, there has been no great change since I have known it.”

A great many maps have been submitted to the court from the land office, and these maps show the location of the Viesca grant, and its relative position with reference to the river from the year 1841 down to the present time, and they locate the northwest line as being at the place contended for by the appellants; that is, these maps all show the location of said northwest line up to what is known as the “holly corner,” and many of them show a continuation of the line from the holly corner. Mr. Omohundro, a civil engineer, after having testified that he went to all four corners, and went to the four places in doing his work down there and seeking to run the lines of the Viesca survey, testified that at none of those four points did he find a single tree that is called for in the grant. He says he did not find a single object on the ground — that is, at the place where these corners were called to be — by which this grant could be identified. The only thing that is called for in the grant, with reference to said corners, was the Trinity river. He then further testified that two of these corners were in an old field, one on the river at the northwest comer (the beginning point), and the other on the south line in the southeast corner. Both of . these were in an old field. He further said that the timber had been cut all through 'that country and around where he would expect to find the northeast corner. He further testified that in that section of East Texas, in dealing with surveys in reference to Mexican grants made in the ’30’s, only a very few of the original bearing trees from his experience could be found. He further testified that he ran the line out from the corner on the river north 43 degrees east and—

“I found old Mexican ground marks fore and aft. Well, I found one, or two, or three, perhaps, that I judged to be the old lines, the oldest that I saw anywhere else in this country.”

Summarizing, appellants claim that they have established the northwest corner of the Viesca grant and the northwest line of the same by the admissions of the appellee in its pleadings, by the calls for the line in repeated conveyances, by the oath of Mr. Garvey, appellees’ witness, who positively swore that it is the line of the Viesca grant, by the original marks on the line found by Garvey, by Green, and by Cochran, witnesses for ap-pellees, and by Sloan and Omohundro, by the records of the general land office from the earliest time to the present time, and by the identification of the spot where Scarborough said the original pecan tree stood when he first acquired the land.

We have burdened this record with copious extracts from the testimony of the various witnesses, and used and adopted the argument in appellants’ brief, for the purpose of demonstrating whether or not there is a real dispute between the plaintiffs and defendants as to the point of beginning and of the northwest line of this grant, up to what is known as the “holly corner.” There is no testimony in the record which discloses any fact which would lead us to believe that the beginning corner of said league and the location of the north or northwest boundary line of the league was and is not now at the place where the appellants contend same to be; that is to say, that the north or northwest line runs up to what is known as the “holly corner,” and in our judgment all of the testimony which is available does show, or tend to show, that the line began at a point on the river, the pecan being on the line, at a point 200 varas from the Trinity river, and that said tree was within the field of Mr. Scarborough, who is now dead, and said pecan tree was standing at the place called for in the grant, but has since fallen down, and is not now to be found. Therefore we conclude that this record discloses testimony which shows conclusively to our mind that said northwest corner of the Viesca league should begin at the point in Scarborough’s field on the bank of the Trinity river, and that a pecan tree formerly stood in the line which was called for in the field notes of the original surveyor, and that said line should be run north 43 degrees east; as is found upon the ground by old marks upon trees after you pass iMill’s Lake and out of the clearing of Scarborough, continuing to the northeast corner of said survey its complement of varas, if not arrested.

The settlement of this question removes many difficulties in the further adjudication of this case, for after we have a definite beginning point, and have a definite north or northwest line running in a definite direction, it only remains to be decided whether or not this line should run to its complement of varas, or whether it was arrested before it reached 15,833 varas.

It is earnestly contended by the appellees, and with apparent force, that if the beginning point be fixed as above decided, and if the northwest line be fixed as above, there was sufficient testimony upon the trial of this case to arrest the call for distance in said grant, and they say that said northwest line, when it reached what is known as the “holly corner,” intersected an old marked line running south 47 degrees east, and they claim that this line is the east boundary line of the Viesca grant, and they, in support of their contention, introduced a great mass of testimony with reference to what they refer to as the “holly corner,” and the old line running south 47 degrees east approximately 5,200 varas. In this connection it is not disputed that the original field notes do not at the northeast corner of the grant call either for a holly or for any of the trees near what is known as tlie “tolly corner,” with one apparent exception — that is, as to their distance and kind, and variation — but that all the marked trees at what is known as the “holly corner” are absent from the calls of the original field notes, as set out for the said northeast corner.

There is, without question, an old marked line running from what is known as the “holly corner,” and designated on the map as “A,” and that this line is identified with reasonable certainty to have been made many years ago, probably nearly as old, some of the marks showing as much as 50 years ago; that is to say, there are a few marks on this old line, shown to have been marked on the trees, showing that the same were made many years ago, but this old line only runs from what is called the “holly corner” 5,190 varas to a place known to be and called the Beasley southeast corner, and south of what is known as the Beasley corner there is no mark or evidence of any old line to show that any line was ever traced thereto. The calls in the original field notes from the northeast corner of the grant call to run south 47 degrees east 7,500 varas. Therefore, if this old line, as contended for by appellees, is the east line of the Viesca survey, it is 2,-310 varas short. Also it may be remarked in this connection that what is known as the Beasley corner does not correspond in any way with the southeast corner called for in the original field notes of the Viesca grant, either as to trees, or marks, or anything that would so identify it. What is known as the “holly corner,” and this old line running south 47 degrees east, are relied upon by ap-pellees to arrest the calls for distance of the northwest line of this survey. There is found upon said holly the name “A. Viesca,” but the testimony shows that this mark or name was and is of comparatively recent date. The marks on the holly tree do not correspond with anything called for as identifying the northeast corner of the league. It is believed that the holly corner was made by a surveyor, Minter, in platting a portion of a block of land surveyed by him. The Mary Smith survey was originally located on the ground where the two Buffalo Bayou, Brazos & Colorado and I. E. Haynes are situated on the map. The Smith location was floated, and the Barco afterwards placed on it, and that was also floated and the locations as shown on the map were then made. It may be said that the Mary Smith was located in 1838, and its field notes call for the Beasley southeast corner. We append to and make a part of this record the map made by Minter of his survey, perhaps made in the year 1873.

This brings us to the question as to what are the rules of law that should be applied to the facts of this case in determining the issue of boundary, It seems by the decisions of our courts that lines and boundaries cannot be construed with reference to objects that may be found upon the ground, as indicating the footsteps of the surveyor when there are no calls in the grant for such objects. A brief review of the decisions will therefore be made.

In the case of Railway Co. v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781, the court says:

“The descriptive matter offered in evidence by the appellant, and which is relied upon to control the express description stated in the deed, is not, by the terms of the right of way deed, called for as a matter of description, or as a part of the field notes tending to identify the land. The contention is that the footsteps of the surveyor who located the right of way could be found at places other than that called for in the descriptive matter contained in the deed, and to go to this point would extend the right of way some distance further north than 25 feet from the center of the track. The difficulty that lies in the way of supporting this contention is that the objects sought to he established by the appellant as found upon the ground, as indicating the boundaries of the right of way according to its theory, are not called for in the field notes of the deed under which it holds; and m cases of this character the rule seems_ to be well established that lines and boundaries cannot be construed with reference to objects that may be found upon the ground as indicating the footsteps of the surveyor, when there are no calls in the grant for such objects. Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S.W. 1094; Anderson v. Stamps, 19 Tex. 460; Ratliff v. Burleson, 7 Tex. Civ. App. 624, 25 S. W. 983, 26 S. W. 1004, and cases there cited.”

In Sloan v. King, 33 Tex. Civ. App. 537, 77 S. W. 48, it was said:

“Anderson v. Stamps, supra, Rest v. Donald, 19 S. W. 795, and Coleman County v. Stewart, 65 S. W. 385, and like cases, announce the correct doctrine that the call in the field notes of a survey cannot be controlled by parol evidence of the existence of objects which are not called for, that the boundaries are to -be determined and extended from some of the calls of the grant, and that parol evidence, except in actions to correct mistake, is not admissible to correct a call. But this rule does not apply when the evidence of extraneous facts and surrounding circumstances is simply in aid of a call found in the field notes, when the purpose is by such evidence to remove an ambiguity, and to determine which of two or more conflicting calls shall prevail. This is made apparent in the case of Booth v. Upshur, 26 Tex. 71, and Duren v. Presberry, 25 Tex. 517, where, in each case, Anderson v. Stamps is explained. The uncertainty or ambiguity in the calls of the deed from Thaxton to King and from Thaxton to Hoover did not arise upon the face of these instruments, but arises when the effort is made to apply them to the land intended to be conveyed. In applying the calls contained in these deeds, it is found that the call for the northeast corner of survey No. 64 conflicts with the call for course and distance 975 varas north 57 degrees east from the known corner 200 varas from the river. The jury adopted the last call as the correct and controlling one, acting evidently upon the theory that the call for the northeast corner of survey No. 64 was a mistake, and we have no doubt as to the correctness of this conclusion. There is no evidence, as said before, that Thaxton, in locating and surveying the land intended to be surveyed, ever ran the line from the corner 200 varas from the river on the course north 40 degrees east to the northeast corner of survey No. 64, and there established a corner as contended for by appellant; but there is evidence to the effect that from the corner 200 varas from the river he ran a lino and marked the same on the course north 57 degrees east, and established a corner on the east line of survey No. 64, and, such being the ease, we have evidence of his footsteps which is consistent with the call in the grant, and which may be considered as evidence identifying this call, and giving to it a superiority over the call for the northeast corner of survey No. 64. Oliver v. Mahoney, 61 Tex. 612.”

In the case of Johnson v. Archibald, 78 Tex. 102, 14 S. W. 266, 22 Am. St. Rep. 27, the court uses this language:

“If the calls in a grant, when applied to the land, correspond with each other, parol evidence is not admissible to vary them by showing that in point of fact they are not the calls of the survey as actually made. But if, when so applied, they disclose a latent ambiguity — that is to say, if they conflict with each other — then extrinsic evidence may be resorted to in order to determine the conflict and show the land actually intended to be embraced by the calls of the survey. Certain calls, such as for natural objects, marked lines, and corners, being less likely the result of mistake, in the absence of other evidence, prevail over calls for course and distance ; but the survey actually made is in legal contemplation the true survey, and is always competent to show by any legal evidence where the lines were in fact run upon the ground. It follows, therefore, that whenever the evidence is sufficient to induce the belief that the mistake is in the call for natural or artificial objects, and not in the call for course or distance, the latter will prevail, and the former will be disregarded.”

We find this doctrine recognized in Gregg v. Hill, 82 Tex. 405, 17 S. W. 838; Booth v. Upshur, 26 Tex. 65; Boon v. Hunter, 62 Tex. 588; Duff v. Moore, 68 Tex. 270, 4 S. W. 530; Lilly v. Blum, 70 Tex. 710, 6 S. W. 279; Oliver v. Mahoney, 61 Tex. 612; Jones v. Andrews, 62 Tex. 652; Jones v. Burgett, 46 Tex. 291; Shelton v. Bone, 6 S. W. 225; Busk v. Manghum, 14 Tex. Civ. App. 621, 37 S. W. 459; Castleman v. Pouton, 51 Tex. 87; Hubert v. Bartlett’s Heirs, 9 Tex. 103 Bigham v. McDowell, 69 Tex. 106, 7 S. W. 315; Colonization Co. v. Flippen, 29 S. W. 813; Arambula v. Sullivan, 80 Tex. 615, 16 S. W. 436; Green v. Barnes, 9 Tex. Civ. App. 660, 29 S. W. 547.

In the case of Sloan v. King, supra, continuing, the court said:

“In many of the cases cited course and distance was made to prevail over objects found upon the ground, as called for in the field notes. This upon the theory, as so frequently stated in some of the cases, that when the facts and surrounding circumstances indicate that course and distance is the most reliable of the two calls, and that the call for the object was by a mistake, the latter will be made to yield to the former.”

In Hamilton v. Blackburn, 43 Tex. Civ. App. 162, 95 S. W. 1098, it is said:

“There being no evidence of any uncertainty or ambiguity in the calls of -the chalk deed, it was not proper to consider, in establishing the south line of that survey, anything found on the ground that was not called for in the deed, as indicating the actual footsteps of the survey- or. In such a case his work must be tested by the actual calls of the grant, and under the authorities cited, and in View of the rule there stated, we are clearly of the opinion that there is no evidence in this record controlling the call in the Chalk deed for course and distance south of the Polk survey, and that the verdict of the jury to the contrary was not supported by the evidence, and the court should not have submitted that issue to the jury.”

In the case of Brodbent v. Carper, supra,the court says:

“It is held that, where the deed calls for certain well known and established objects, such calls will not be controlled by objects found upon the ground as indicating the footsteps of the surveyor, * * * when not called for in the deed.”

In the case of Guill v. O’Bryan, 121 S. W. 593, which is somewhat like the instant case —that is to say, the suit was brought in ordinary form of trespass to try title, but by agreement of the parties the controversy was made to depend on the true location of a certain boundary line, and the case became one of boundary strictly, as in this case— the Sixth Court of Civil Appeals, speaking through Judge Levy, in the course of the opinion in that case, says:

“It is a settled rule of law, in determining the true dividing line between surveys, as in this case, that if from a definite 'beginning point (italics ours) course and distance alone will with reasonable certainty locate and identify the line, as in this case, that will be held sufficient. Course and distance will control, then, under the surrounding and connecting circumstances. They are the most certain and reliable evidences of the true locality of the grant [citing Robinson v. Doss, 53 Tex. 506]. Where no marked trees are on the ground identified by the evidence as those of the grant, as in this case, the true boundary must be ascertained by course and distance given in the patent [citing Luckett v. Scruggs, 73 Tex. 519, 11 S. W. 529]. Where a survey has been made calling for the southwest corner and northwest corner of a patented survey, as in this case, the west and north lines of the latter survey must be run according to the courses and distances laid down in the original field notes, and cannot be varied in order to reach trees which cannot he clearly identified as the original corner, as in this case (italics ours)”

—citing Williams v. Beckham, 6 Tex. Civ. App. 739, 26 S. W. 652.

Without unduly prolonging the citation of authorities, we will refer to the case of Keystone Mills Company v. Peach River Lumber Company, 96 S. W. 64, in which a boundary question was under consideration. The court says:

“At the southeast comer of the Hinch the trees called for by its surveyor were two pine trees marked H. This witness saw no pine trees there, only gum and oak, and he saw no trees marked H. It is very plain that the testimony of this witness did not identify the southeast comer of the Hinch survey at this place by anything he saw there as conforming with the description given for that corner by the surveyor who made the Hinch corners. His testimony is equally imperfect in identifying the bearing trees called for to witness the southwest corner of the Hinch. He says he saw these original trees standing on the north line of the Beach survey. He says they were also blown down in the storm of 1875, that their remains are still lying there, and that he pointed them out to Luttrell. But he testified that these trees were red oaks, while the surveyor designated them as a black oak and a white oak. The witness also testified they were marked by hacks, such as surveyors give (three hacks, the witness believed), and by hacks only. This falls short of what can be called an identification of the witness trees as described in the field notes. This witness testified to the general reputation of the line he was testifying to as being the north line of the Walker county school land. His testimony was not such as would authorize the Hinch lines to be stopped short of their distance at .the points he described. The testimony of Surveyor Luttrell is no better in this respect than that of Duke. His work in connection with these surveys appears to have been done in preparation for tins trial, and all he knew concerning the identity of the bearing trees spoken of he obtained from Mr. Duke. The testimony of neither of these witnesses was sufficient to locate the Hinch bearing trees; consequently it affords no reason in law or in fact for stopping the Hinch east and west lines short of the distance they called for. * * * The proof was that the call for distance for the south line of the Hinch makes it include the land in controversy, as against the adjoining junior survey. There being in our judgment no evidence that could have had the effect of identifying the said bearing trees called for in the Hinch, there was nothing' to limit the force and effect of the call for distance in fixing its south line. We are therefore led to the conclusion that plaintiff’s roof was insufficient and that judgment should ave been rendered for defendant.”

It is urged by the appellants, and with reason, that this four-league grant was the first survey made in this section of the country, and that the other surveys in that vicinity are junior to it, and that no cause existed for the Mexican surveyor to make the survey short, and that, if the point designated in the record as the “holly corner” should be taken as the true northeast corner of the four leagues, the north line will be shortened 1,363 varas, and an area of land 7,500 varas long.by 1,363 varas wide will be excluded from the field notes as given in the original grant. The Mexican surveyor says that he ran north 43 degrees east 15.833 varas from a line tree, which he says stood' 200 varas from the bank of the Trinity river, and that he established the second landmark on a white oak standing to the north 16 degrees west 4 varas from another white oak, and to the north 5 degrees east 3 varas from an ash, and to the south 76 degrees east 9 varas from another white oak. We believe that it should be presumed that the surveyor marked this corner. Harkrider v. Gaut, 167 S. W. 164; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317.

Without the landmarks and bearing trees called for in the original grant can be found at a different point, we believe that the first line must be extended 16,033 varas from the beginning point at the river, and 15,833 varas from the pecan tree, shown now to have disappeared, which was 200 varas from the Trinity river. To our minds, nothing has been shown of sufficient gravity to arrest the distance. No tree has been found, or bearing tree, called for in the original field notes. The surveyor does not say that any line was marked, but the contention is made that the old line found running south 47 degrees east is the east boundary line of the grant. The objection to this, and we think that same is conclusive, is that to accept this old line does not satisfy the quantity of land, that the length of the line is not satisfied, that no landmark referred to by the original surveyor can be found, and that in addition this old line, claimed to be the eastern boundary line of the grant, is found to extend only about two-thirds of the way across the four-league grant, or to about the Beasley comer, and cannot be found running any further south, although its course, as testified to, runs through virgin timber.

The appellees’ surveyor, Garvey, admits that the holly tree, standing at the point designated as “holly corner,” does not stand at the corner as made at the second landmark by the original surveyor, and he says that the words “A. Viesca” appearing on said tree were put there at a comparatively recent date, at least, not cut in the tree by the original surveyor, and he thinks that the marking was probably done by Surveyor Minter. From what has been said, we deem it unnecessary to quote further from the authorities, but refer to the following in support of our views, and in support of the propositions above announced: Anderson v. Stamps, 19 Tex. 460; Browning v. Atkinson, 37 Tex. 633; Bigham v. McDowell, 69 Tex. 100, 7 S. W. 315; Jones v. Andrews, 72 Tex. 5, 9 S. W. 170; Sanborn v. Gunter, 84 Tex. 273, 17 S. W. 117, 20 S. W. 72; Reast v. Donald, 84 Tex. 653, 19 S. W. 795; Blackwell v. Coleman, 94 Tex. 216, 59 S. W. 530; Fagan v. Stoner, 67 Tex. 286, 3 S. W. 44; Ratliff v. Burleson, 7 Tex. Civ. App. 621, 25 S. W. 983, 26 S. W. 1003; Sloan v. King, 33 Tex. Civ. App. 537, 77 S. W. 48; M., K. & T. Ry. Co. of Texas v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781; Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S. W. 1094; Keystone Mills Co. v. Peach River Lbr. Co., 96 S. W. 64; Brodbent v. Carper, 100 S. W. 183; Guill v. O’Bryan, 121 S. W. 593; Runkle v. Smith, 133 S. W. 745; Hermann v. Thomas, 168 S. W. 1037.

Therefore we are pursuaded to believe, nothing having been shown to arrest or stop the north or northwest line of this grant, shown to definitely begin at the river and continuing by a pecan 200 varas from the bank of the Trinity river, that the line should from said point at the pecan tree have run 15,833 varas to its northeastern corner, and, no bearing trees being found there now, they are presumed to have been there; that the line then runs south 47 degrees east 7,500 varas to the southeastern corner of the grant, and, no bearing trees being found on the ground now corresponding with those of the grant, the same will be presumed to have been at that point; and thence running south 43 degrees west to the bank of the Trinity river, and thence with the river to the beginning point; and thus we fix the boundaries of this grant.

What has been said above disposes of the case, as we see no reason under the facts to return this ease to the trial court for a new trial. In view of the decision and the disposition made of the case, we have not discussed the many propositions raised by appellants with reference to the introduction of testimony, and the action of the trial court in admitting and excluding said matters, as the same is unnecessary.

There seems'to be no dispute about either the amount of the timber cut or the value of the same. Therefore, after fixing the boundaries of the grant as above stated, we here render judgment reversing and rendering this cause in favor of appellants, and awarding judgment against the appellees, in favor of appellants, for 10,313,000 feet of timber, at |3 per thousand feet, making an aggregate of ?30,936.

Judgment is rendered accordingly.

On Rehearing.

A correction is desired to be made in the opinion heretofore handed down in this ease, on page 20 of said opinion (182 S. W. 350). The court was made to say in the opinion as follows:

“In view of the decision and disposition made of the case, we have not discussed the many propositions raised by appellants with reference to the introduction of testimony and the action of the trial court in admitting and excluding said matters.”

It should read:

“The many propositions raised by appellants with reference to special charges and the action of the trial court in admitting and excluding said matters.”

A further correction is made in the description of the land on the first page of the opinion (182 8. W. 341) where it is made to say:

“Beginning on said bank of said river above the old Coashatta Indian village at pecan.”

It should be “a pecan.”

We desire also to reform the opinion originally handed down in this case in this respect: That the judgment in the case should be that the north or northwest line of the grant should begin on the bank of the Trinity river and continue by a pecan 200 varas from the bank of the Trinity river; from thence run north 43 degrees east 15,833 varas to its northeast corner, and that the line shall run thence south 47 degrees east 7,500 varas to the southeastern corner of the grant, and thence running south 43 degrees west to the bank of the Trinity river, and thence with the said Trinity river to the beginning' point, and thus the boundaries of the grant are fixed.

It follows, from the decree as modified, that the east boundary of the Viesca grant is 200 varas further west than fixed in the original judgment. The judgment for damages is accordingly modified, and an inspection of the record shows that there should be deducted the following amounts, to wit: 85.45 acres of the D. W. Smith, Jr., survey, having 6,000 feet to the acre, at a valuation of $3 per thousand; 102.16 acres of the Wm. White, having 10,000 feet to the acre, at $3 per thousand; 28.32 acres of the Wm. Hicks, having 10,000 feet to the acre, at $3 per thousand-aggregating $5,452.50. This amount should be deducted from the original award of $30,936, and the judgment is accordingly reformed for the sum of $25,483.50, with interest at 6 per cent, from December 5, 1911, the date of the filing of the original petition.

At the earnest insistence of appellees, who have filed a very able and exhaustive motion for rehearing, we have again gone over the record, but find nothing that has caused us in any way to change our views, otherwise than as above, as expressed in the opinion heretofore handed down in this case.

The judgment will be reformed, in accordance with the views above expressed, and the motion for rehearing is in all things overruled.
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