Stayton, Associate Justice.—
The appointment of the surveyor Schley, in vacation, pending the appointment of thé surveyor Hard-[101]*101man, was an irregularity, which, however, most probably did not affect the merits of the case, for both surveyors made surveys and testified in the case, and it is not likely that, under such circumstances, either party was prejudiced by the action of the court.
The third, fourth and fifth assignments of error raise the material questions in the case.
The appellants claimed title to the land in controversy through a deed made by Duke, the original grantee of the land, to Sheppard, executed on the 12th of July, 1842, and the appellee claims under a deed made by the heirs of Duke to him for the unsold portion of the grant, made December 24, 1880, and the controversy is as to the true southern boundary of the land conveyed by Duke to Sheppard.
The description of the land, in so far as this question is concerned in that deed, is as follows: “ Commencing-on the bank of said lake
[Austin] or creek, at the northwest corner of said league, etc., thence running down the border of said lake or creek, with the meanders thereof, to a place where stands a mesquite tree or bush, on the bank of said lake or creek where the water comes up to the bluff about one hundred yards, more or less, below the lower end of the rush or rush flat or marsh which borders said lake around and under the bluff, said mesquite tree or bush being the lower mesquite tree or bush below said lower end of said rush or marsh.” Thence running eastwardly parallel, etc. And the deed purported to convey “ two thousand acres, more or less.”
There was much evidence tending to show that the mesquite tree, bluff and open waters between the margin of the lake and the rush flat or marsh was at the place claimed by the appellants to be the point on the lake described in the conveyance from Duke- to Sheppard as the southern boundary of the land conveyed to Sheppard, and the parties all admitted that the mesquite tree named in the deed had ceased to exist.
The appellee having bought only the unsold portion of the Duke grant, the proper determination of the ease depended upon fixing the true locality of the mesquite tree.
The defendants being in possession, the burden of establishing that fact rested upon the plaintiff. Preston’s Heirs v. Bowman et al., 2 Bibb, 497; 6 Wheaton, 582.
After properly instructing the jury as to the rights of the respective parties, if the southern line of the land sold by Duke to Sheppard was established, the court instructed the jury as follows: If
the objects of said second call have not. been by the evidence reason[102]*102ably identified, you will so say; and in that event, you will find for defendants two thousand acres of land, beginning at the northwest corner of the Duke league on the lake, and following the call in the Duke deed so as to make two thousand acres; and for ¡Nye, all the land south of .said two thousand acres on Canoe, bayou.”
The defendants asked the following charge, among others: “It is for you to determine, from the evidence, whether the place where the two thousand acre line as surveyed strikes the lake was the place described in the deed from Duke to Sheppard, of date 21st July, 1842, or whether the second call in said deed was located at the bluff below, or at what point on said lake said corner in said deed was located.” This charge was refused.
The verdict was: “We, the jury, with the evidence brought before ns, have not been able to identify the objects of the second call in the deed from Duke to Sheppard. We find for the defendants two thousand acres of. land, beginning at the northwest corner of the Duke league on the lake, and following the calls in the Duke deed so as to make two thousand acres, and for the plaintiff all the remainder of the .land south of. the two thousand acres on Canoe bayou, making seven hundred and ninety-one acres.”
Judgment was rendered in accordance with the verdict. ■
It was not contended that the mesquite tree called for as the southwest corner of the land conveyed by Duke to Sheppard did not exist at the time the deed was made, and the true inquiry to be made was as to its true locality at the time the deed was made; for from that point a line run eastward, parallel with the upper line of the grant, constituted the southern line of the land which the defendants owned, through the deed made to Sheppard.
¡North of that line, wherever it was, the plaintiff could recover nothing; and as before said, the burden of establishing that line rested upon him, and in the absence of such evidence as would enable the jury to determine its true locality, taking into consideration the rules applicable to the proof necessary to entitle a party to a verdict in civil causes, he was not entitled to recover.
The charge of the court authorized the jury, if there was not that amount of evidence which would enable them to say where the true line was,- to establish a line'without evidence, and to adopt one arbitrarily upon a matter of description in the deed from Duke ■to Sheppard, as to quantity of land intended to be conveyed ■thereby, when the parties to that deed had not undertaken to make ■the quantity of land thereby conveyed a matter descriptive of the -land conveyed; for they, had estimated it, not at two thousand [103]*103acres, but at two thousand acres more or less, thus evidencing that neither of the parties to that deed were willing to make area matter descriptive. If they could not do so, the court surely was not authorized, as matter of law, to inform the jury that, in the absence of sufficient proof to enable them to determine where the true line was, they might establish a line without reference to where the parities themselves had established it, and this upon language in the deed which the parties had not made matter of description certain in any respect. If quantity had been stated with certainty in the deed,' that would have been a fact which, among the other matters of description in the deed, the more certain not having been found, the jury might have looked to for the purpose of enabling them to determine where the true boundary was: but even in such case the court could not have instructed the jury to find the line át the point where the quantity would be given.
The charge, in effect, said to the jury, if you cannot, from the evidence, tell where the true corner is, then your duty is performed, and it is only left to you to incorporate my judgment into your verdict as to where the line shall be; and I tell you that it is at that point at which a line, run parallel to the upper line of the league, will embrace between such line and the upper line of the league two thousand acres of land.
The verdict of the jury bears evidence that it is not the deliberate result of their judgment upon the evidence, influenced, as in civil cases it ought to be, by the preponderance of evidence.
In addition to this the charge seems to contemplate that it was necessary for the jury to be satisfied as to the locality of all the objects made descriptive of the second corner.
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Stayton, Associate Justice.—
The appointment of the surveyor Schley, in vacation, pending the appointment of thé surveyor Hard-[101]*101man, was an irregularity, which, however, most probably did not affect the merits of the case, for both surveyors made surveys and testified in the case, and it is not likely that, under such circumstances, either party was prejudiced by the action of the court.
The third, fourth and fifth assignments of error raise the material questions in the case.
The appellants claimed title to the land in controversy through a deed made by Duke, the original grantee of the land, to Sheppard, executed on the 12th of July, 1842, and the appellee claims under a deed made by the heirs of Duke to him for the unsold portion of the grant, made December 24, 1880, and the controversy is as to the true southern boundary of the land conveyed by Duke to Sheppard.
The description of the land, in so far as this question is concerned in that deed, is as follows: “ Commencing-on the bank of said lake
[Austin] or creek, at the northwest corner of said league, etc., thence running down the border of said lake or creek, with the meanders thereof, to a place where stands a mesquite tree or bush, on the bank of said lake or creek where the water comes up to the bluff about one hundred yards, more or less, below the lower end of the rush or rush flat or marsh which borders said lake around and under the bluff, said mesquite tree or bush being the lower mesquite tree or bush below said lower end of said rush or marsh.” Thence running eastwardly parallel, etc. And the deed purported to convey “ two thousand acres, more or less.”
There was much evidence tending to show that the mesquite tree, bluff and open waters between the margin of the lake and the rush flat or marsh was at the place claimed by the appellants to be the point on the lake described in the conveyance from Duke- to Sheppard as the southern boundary of the land conveyed to Sheppard, and the parties all admitted that the mesquite tree named in the deed had ceased to exist.
The appellee having bought only the unsold portion of the Duke grant, the proper determination of the ease depended upon fixing the true locality of the mesquite tree.
The defendants being in possession, the burden of establishing that fact rested upon the plaintiff. Preston’s Heirs v. Bowman et al., 2 Bibb, 497; 6 Wheaton, 582.
After properly instructing the jury as to the rights of the respective parties, if the southern line of the land sold by Duke to Sheppard was established, the court instructed the jury as follows: If
the objects of said second call have not. been by the evidence reason[102]*102ably identified, you will so say; and in that event, you will find for defendants two thousand acres of land, beginning at the northwest corner of the Duke league on the lake, and following the call in the Duke deed so as to make two thousand acres; and for ¡Nye, all the land south of .said two thousand acres on Canoe, bayou.”
The defendants asked the following charge, among others: “It is for you to determine, from the evidence, whether the place where the two thousand acre line as surveyed strikes the lake was the place described in the deed from Duke to Sheppard, of date 21st July, 1842, or whether the second call in said deed was located at the bluff below, or at what point on said lake said corner in said deed was located.” This charge was refused.
The verdict was: “We, the jury, with the evidence brought before ns, have not been able to identify the objects of the second call in the deed from Duke to Sheppard. We find for the defendants two thousand acres of. land, beginning at the northwest corner of the Duke league on the lake, and following the calls in the Duke deed so as to make two thousand acres, and for the plaintiff all the remainder of the .land south of. the two thousand acres on Canoe bayou, making seven hundred and ninety-one acres.”
Judgment was rendered in accordance with the verdict. ■
It was not contended that the mesquite tree called for as the southwest corner of the land conveyed by Duke to Sheppard did not exist at the time the deed was made, and the true inquiry to be made was as to its true locality at the time the deed was made; for from that point a line run eastward, parallel with the upper line of the grant, constituted the southern line of the land which the defendants owned, through the deed made to Sheppard.
¡North of that line, wherever it was, the plaintiff could recover nothing; and as before said, the burden of establishing that line rested upon him, and in the absence of such evidence as would enable the jury to determine its true locality, taking into consideration the rules applicable to the proof necessary to entitle a party to a verdict in civil causes, he was not entitled to recover.
The charge of the court authorized the jury, if there was not that amount of evidence which would enable them to say where the true line was,- to establish a line'without evidence, and to adopt one arbitrarily upon a matter of description in the deed from Duke ■to Sheppard, as to quantity of land intended to be conveyed ■thereby, when the parties to that deed had not undertaken to make ■the quantity of land thereby conveyed a matter descriptive of the -land conveyed; for they, had estimated it, not at two thousand [103]*103acres, but at two thousand acres more or less, thus evidencing that neither of the parties to that deed were willing to make area matter descriptive. If they could not do so, the court surely was not authorized, as matter of law, to inform the jury that, in the absence of sufficient proof to enable them to determine where the true line was, they might establish a line without reference to where the parities themselves had established it, and this upon language in the deed which the parties had not made matter of description certain in any respect. If quantity had been stated with certainty in the deed,' that would have been a fact which, among the other matters of description in the deed, the more certain not having been found, the jury might have looked to for the purpose of enabling them to determine where the true boundary was: but even in such case the court could not have instructed the jury to find the line át the point where the quantity would be given.
The charge, in effect, said to the jury, if you cannot, from the evidence, tell where the true corner is, then your duty is performed, and it is only left to you to incorporate my judgment into your verdict as to where the line shall be; and I tell you that it is at that point at which a line, run parallel to the upper line of the league, will embrace between such line and the upper line of the league two thousand acres of land.
The verdict of the jury bears evidence that it is not the deliberate result of their judgment upon the evidence, influenced, as in civil cases it ought to be, by the preponderance of evidence.
In addition to this the charge seems to contemplate that it was necessary for the jury to be satisfied as to the locality of all the objects made descriptive of the second corner. The tree was made the corner by the deed, and the other objects called for were only intended to describe the place at which the true corner would be found; and whether any of those objects could be found after a lapse of about forty years was unimportant, if otherwise the true corner could be identified.
The charge, in other respects, seems to have been carefully drawn, but the giving of the charge considered will require the reversal of the judgment. The charge asked and refused would have presented the true issue to the jury. The bill of exceptions taken to the exclusion of a part of the testimony of the witness Tom, does not show the ground of the objection to it, and hence cannot be considered.
It is not perceived that a charge upon the statute of limitation of three years could have been of any advantage to the defendants, [104]*104for if the deed from Duke to Sheppard did not cover the land in controversy they had no such title as would support it; and if that deed did cover the land their title was good through the deed.
The same is true of the defenses of limitation of five and ten years, in so far as the parties relied upon the Sheppard deed to support limitation for either period. If, however, they relied upon these defenses under the deeds from Sheppard to Herbert and Hawkins, and from Herbert to Hawkins, then the court did not err in refusing to give the law applicable to five years’ limitation, which was the only one asked upon either of these defenses, for the record does not show that such proof was made as would be necessary to support that defense.
The judgment, for the reasons indicated, is reversed and the cause is remanded.
Beversed and remanded.
[Opinion delivered March 9, 1883.]