STOREY, L. J., Sr. , Special Justice.
Appellee brought this suit in the District Court of Tom Green County against J. A. Hollinsworth, J.. J. Rackley, and John R. Nasworthy, as an. ordinary action of trespass to. try the title to 79.36 acres of land, a part of survey number 815, situated in said county.
Appellants plead general demurrer, general denial, and not guilty.
William Lackey was made a party defendant, but he filed a disclaimer and no further notice was taken of him.
A jury was waived, and the case was tried by the court. The judge filed his conclusions as to the law and facts, and rendered judgment for the plaintiff Fowlkes for the land sued for, except a strip 23 varas wide, found to be a part of survey number 816.
From this judgment the defendants appealed, and assigned a number of errors attacking the conclusions and judgment of the court.
The facts are substantially these: In the forks of Middle Concho River and Spring Creek are situated three surveys, numbers 814, 815, and 816. Number 814 is located immediately in the forks of these streams, number 815 is immediately west of number 814, while survey number 816 is immediately west of and adjoining survey number 815.
The land in controversy is a part of survey number 815, and is a strip along the west line of that survey 232 varas wide.
In 1884 appellant Nasworthy purchased surveys numbers 814 and 815.
from Joseph Wiley, who pointed out to him a large marked pecan tree on the bank of the river as the northwest corner of survey number 815. Nasworthy improved his land, and built a fence beginning at this pecan tree and running sputh through the prairie on what he erroneously supposed to be the west line of survey number 815.
In October, 1886, Nasworthy sold and conveyed surveys numbers 814 and 815 to William Lackey, and pointed out to him the same pecan tree and wire fence as the corner and west line of survey number 815. Lackey put the land in cultivation up to this fence. In March, 1888, Nasworthy purchased survey number 816, and then entered into a contract with Lackey, wherein it was agreed that Nasworthy was to fence survey 816, and Lackey was to put it in cultivation and under irrigation, when they were to then sell it and divide the profits.
About April 9, 1888, Lackey, acting for Nasworthy, showed the land to appellants Hollingsworth and Rackley as what he supposed to be survey number 816 of 160 acres, and they stepped off from the wire fence so as to see about how far the survey would go west from the fence. Lackey told appellants that Nasworthy would make the deed, and they all went to San Angelo, where Nasworthy lived, to see him, and Lackey told Nasworthy that appellants wanted the land.
Nasworthy, Hollingsworth, and Rackley then entered into a written contract for the sale and purchase of the 160 acres survey number 816; or as Nasworthy expresses it in his testimony, in speaking of the description as contained in the contract, “I think it was 160 acres out of survey number 816; ” and provided that at some future time Nasworth was to convey the land to Hollingsworth and Rackley, for which they were to pay Nasworthy a house and lot in San Angelo at 81000 as part payment, and the balance in cash. Nasworthy was to fencé the land and put as much of it in cultivation and under irrigation as he could by the 1st of January, 1889, and for the land so put in cultivation and under water he was to receive 820 per acre, and for the balance he was to receive 83 per acre.
This contract was never put upon record, and appellee knew nothing of its existence until long after his purchase of surveys 814 and 815. About July, 1888, Nasworthy had survey number 816 surveyed off so as to ascertain where to place his fence, and then for the first time they learned that the land in controversy was in fact a part of survey number 815; and thereafter Lackey claimed the land in controversy as his own, and he and his tenants put a portion of it in cultivation.
By Lackey’s consent Nasworthy run his fence across this strip of land- and joined to the wire fence around Lackey’s farm, and the cross-fence-(the old wire fence) was permitted to go down so that surveys numbers-; 816 and 815 were practically under the same enclosure. Nasworthy b.uilt; a house in the enclosure on survey number 816, but made no improve-, ments on the land in controversy, except to run his fence across it to join
with the old wire fence, by Lackey’s consent, and thereby saved the cost of a string of fence.
While in this condition Lackey sold and conveyed numbers 814 and 815 to the appellee, Fowlkes; took him upon the ground and showed him the true dividing line between surveys numbers 816 and 815, as well as the land he was cultivating on this strip, and without any knowledge of any controversy about the line, purchased the land. The consideration paid by Fowlkes to Lackey for surveys numbers 814 and 815 was $5000 cash and the assumption by Fowlkes of the payment of a mortgage for $7000, given by Lackey before Nasworthy bought survey number 816, and for the payment of which the land in controversy was undoubtedly bound. This the court below held was equivalent to payment in full by appellee.
On January 1, 1889, Nasworthy made appellants Hollingsworth and Rackley a special warranty deed to 160 acres of land lying immediately west of the old wire fence, including the land in controversy, in consideration of the $1000 and two notes to be paid in one and two years. From the evidence before us we suppose this deed did not say upon what survey the land conveyed was situated, except it ran west from the wire fence, and that will include part of both numbers 815 and 816.
It seems that neither the appellants Hollingsworth and Rackley nor the appellee, Fowlkes, knew at the time they bought that there was any controversy about the line, and neither of them at the date of the trial had actually paid all of the purchase money. Nas worthy still had the house and lot conveyed to him by Hollingsworth and Rackley for the cash payment of $1000, and they had never paid their two notes, and he was a party to this suit.
It is contended here, as in the court below, that appellee is and was estopped from setting up any claim to the land in controversy, because of the fact that Lackey, acting for Nasworthy, pointed out the same tree and line for the west line and corner of number 815 that he, Nasworthy, had pointed out to Lackey when Lackey purchased of him, and that Hollingsworth and Rackley bought to that line so pointed out by Lackey.
It seems that the legal title to survey number 816 was still in Nasworthy until long after the true line was discovered, and until Lackey set up claim to the land as his own. Nasworthy was the vendor of both Lackey and Hollingsworth and Rackley. He contracted in writing with Hollingsworth and Rackley to convey to them in the future “ 160 acres out of survey 816,” and from the price he was to pay, $20 per acre for land to be put in cultivation, and other facts in the case, it does not appear that he was to give only a quitclaim or special warranty deed.
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STOREY, L. J., Sr. , Special Justice.
Appellee brought this suit in the District Court of Tom Green County against J. A. Hollinsworth, J.. J. Rackley, and John R. Nasworthy, as an. ordinary action of trespass to. try the title to 79.36 acres of land, a part of survey number 815, situated in said county.
Appellants plead general demurrer, general denial, and not guilty.
William Lackey was made a party defendant, but he filed a disclaimer and no further notice was taken of him.
A jury was waived, and the case was tried by the court. The judge filed his conclusions as to the law and facts, and rendered judgment for the plaintiff Fowlkes for the land sued for, except a strip 23 varas wide, found to be a part of survey number 816.
From this judgment the defendants appealed, and assigned a number of errors attacking the conclusions and judgment of the court.
The facts are substantially these: In the forks of Middle Concho River and Spring Creek are situated three surveys, numbers 814, 815, and 816. Number 814 is located immediately in the forks of these streams, number 815 is immediately west of number 814, while survey number 816 is immediately west of and adjoining survey number 815.
The land in controversy is a part of survey number 815, and is a strip along the west line of that survey 232 varas wide.
In 1884 appellant Nasworthy purchased surveys numbers 814 and 815.
from Joseph Wiley, who pointed out to him a large marked pecan tree on the bank of the river as the northwest corner of survey number 815. Nasworthy improved his land, and built a fence beginning at this pecan tree and running sputh through the prairie on what he erroneously supposed to be the west line of survey number 815.
In October, 1886, Nasworthy sold and conveyed surveys numbers 814 and 815 to William Lackey, and pointed out to him the same pecan tree and wire fence as the corner and west line of survey number 815. Lackey put the land in cultivation up to this fence. In March, 1888, Nasworthy purchased survey number 816, and then entered into a contract with Lackey, wherein it was agreed that Nasworthy was to fence survey 816, and Lackey was to put it in cultivation and under irrigation, when they were to then sell it and divide the profits.
About April 9, 1888, Lackey, acting for Nasworthy, showed the land to appellants Hollingsworth and Rackley as what he supposed to be survey number 816 of 160 acres, and they stepped off from the wire fence so as to see about how far the survey would go west from the fence. Lackey told appellants that Nasworthy would make the deed, and they all went to San Angelo, where Nasworthy lived, to see him, and Lackey told Nasworthy that appellants wanted the land.
Nasworthy, Hollingsworth, and Rackley then entered into a written contract for the sale and purchase of the 160 acres survey number 816; or as Nasworthy expresses it in his testimony, in speaking of the description as contained in the contract, “I think it was 160 acres out of survey number 816; ” and provided that at some future time Nasworth was to convey the land to Hollingsworth and Rackley, for which they were to pay Nasworthy a house and lot in San Angelo at 81000 as part payment, and the balance in cash. Nasworthy was to fencé the land and put as much of it in cultivation and under irrigation as he could by the 1st of January, 1889, and for the land so put in cultivation and under water he was to receive 820 per acre, and for the balance he was to receive 83 per acre.
This contract was never put upon record, and appellee knew nothing of its existence until long after his purchase of surveys 814 and 815. About July, 1888, Nasworthy had survey number 816 surveyed off so as to ascertain where to place his fence, and then for the first time they learned that the land in controversy was in fact a part of survey number 815; and thereafter Lackey claimed the land in controversy as his own, and he and his tenants put a portion of it in cultivation.
By Lackey’s consent Nasworthy run his fence across this strip of land- and joined to the wire fence around Lackey’s farm, and the cross-fence-(the old wire fence) was permitted to go down so that surveys numbers-; 816 and 815 were practically under the same enclosure. Nasworthy b.uilt; a house in the enclosure on survey number 816, but made no improve-, ments on the land in controversy, except to run his fence across it to join
with the old wire fence, by Lackey’s consent, and thereby saved the cost of a string of fence.
While in this condition Lackey sold and conveyed numbers 814 and 815 to the appellee, Fowlkes; took him upon the ground and showed him the true dividing line between surveys numbers 816 and 815, as well as the land he was cultivating on this strip, and without any knowledge of any controversy about the line, purchased the land. The consideration paid by Fowlkes to Lackey for surveys numbers 814 and 815 was $5000 cash and the assumption by Fowlkes of the payment of a mortgage for $7000, given by Lackey before Nasworthy bought survey number 816, and for the payment of which the land in controversy was undoubtedly bound. This the court below held was equivalent to payment in full by appellee.
On January 1, 1889, Nasworthy made appellants Hollingsworth and Rackley a special warranty deed to 160 acres of land lying immediately west of the old wire fence, including the land in controversy, in consideration of the $1000 and two notes to be paid in one and two years. From the evidence before us we suppose this deed did not say upon what survey the land conveyed was situated, except it ran west from the wire fence, and that will include part of both numbers 815 and 816.
It seems that neither the appellants Hollingsworth and Rackley nor the appellee, Fowlkes, knew at the time they bought that there was any controversy about the line, and neither of them at the date of the trial had actually paid all of the purchase money. Nas worthy still had the house and lot conveyed to him by Hollingsworth and Rackley for the cash payment of $1000, and they had never paid their two notes, and he was a party to this suit.
It is contended here, as in the court below, that appellee is and was estopped from setting up any claim to the land in controversy, because of the fact that Lackey, acting for Nasworthy, pointed out the same tree and line for the west line and corner of number 815 that he, Nasworthy, had pointed out to Lackey when Lackey purchased of him, and that Hollingsworth and Rackley bought to that line so pointed out by Lackey.
It seems that the legal title to survey number 816 was still in Nasworthy until long after the true line was discovered, and until Lackey set up claim to the land as his own. Nasworthy was the vendor of both Lackey and Hollingsworth and Rackley. He contracted in writing with Hollingsworth and Rackley to convey to them in the future “ 160 acres out of survey 816,” and from the price he was to pay, $20 per acre for land to be put in cultivation, and other facts in the case, it does not appear that he was to give only a quitclaim or special warranty deed. He fenced the entire survey 816, with the 79-J acres in controversy, and then executed to Hollingsworth and Rackley, after the controversy arose, a special warranty deed to 160 acres, including the land in controversy.
Or in other words, Nasworthy being the vendor of both Lackey and Hollingsworth and Rackley, executed to Lackey a warranty deed to surveys numbers 814 and 815, and afterwards gave appellants a special warranty deed to 79-£ acres of survey 815.
Delivered June 28, 1893.
Survey 816 was fenced and put in cultivation prior to January 1, 1889, the date of the deed to appellants Hollingsworth and Rackley, and the evidence fails to show that it is not as good land in every respect as the strip of land in controversy, and fails to show that Hollingsworth and Rackley will be injured in the least if they are compelled to take their 160 acres all on survey 816, which Nasworthy had a right to convey; whereas appellee would be injured the value of the 79-¡- acres if appellants recover; and as it has not been shown that appellants have been injured by this mutual mistake of Nasworthy and Lackey, we can not think appellee is thereby estopped from claiming the land in controversy. Besides, we can not say that he is not an innocent purchaser for value. Appellants had no deed or contract on record when appellee bought and recorded his warranty deed. His vendor was in actual possession and cultivating the land when he bought, and the true dividing line was pointed out to him, and all this before appellants had parted with anything of value, and before they received their special warranty deed from a man who knew he did not own the land.
The judgment of the District Court is affirmed.
Affirmed.
Chief Justice Fisher did not sit in this case.