Oollard, Judge.—This
is a second suit; and the first question presented by the record is, can it be maintained as a second suit of trespass to try title?
The first suit was filed May 11th, 1877, and terminated in a verdict and judgment for defendants April the 18th, 1878. The second suit was filed April 17th, 1879, within one year from filial judgment, as required by the statute. Defendants, on the 19th of October, 1885, set up the former judgment as res adjudimta, upon the ground as claimed by them that the only question involved in controversy was one of boundary. Both suits were in form of trespass to try title; but if it is found to be true that the sole issue between the parties was to settle their boundary lines, [13]*13the plea of res adjudicata must prevail. Spence v. McGown, 53 Texas, 30; Bird v. Montgomery, 34 Texas, 713; Corporation San Patricio v. Mattis, 58 Texas, 242.
In the case of Bird v. Montgomery the issue of boundary was made in the pleadings by plaintiff, and was accepted by the defendant, both parties asking the court to fix the disputed boundary. The court did so, and it was held to be res adjudicata in another action for the same purpose. In the case of Spence v. McGown the court say it was “originally brought in form of an action of trespass to try title; but in reality, by subsequent amendment and agreement of the parties, it became a suit to settle and adjust the boundary line between lots No. 2 and No. 3 in block 13 in the city of Houston.” The court decided that a second suit for the same purpose could not be brought after final judgment in the first.
In the case in the 58 Texas Reports, above cited, the court approves the ruling in Spence v. McGown, and held that if the suit was nominally to try title but in fact to settle a disputed boundary, a second suit Avould not lie.
In the case before us, and in the present suit, Jones, Burleson and Burleson, Yrws, and Mullin pleaded title by the three years’ statute of limitation; and Jones also claimed by the five years’ statute; and the same parties (or their vendors, as in the case of Burleson and Burleson, who are vendees of Faucett) set up limitation as a bar to plaintiffs’ recovery in the first suit. In that suit the court submitted the question of limitation under the three and five years’ statutes. There was a general verdict for the defendants, and a judgment “that plaintiffs take nothing by their suit,” and that “defendants go hence without day.” Before the trial of the second suit, on the day of the trial, the 22nd day of October, 1885, the parties filed an agreement as to evidence, as follows: “1. Title, but neither location nor boundaries of the Hunt suiwey, admitted in plaintiffs. 2. Titles of defendants, Jones, Burleson, and Burleson, in the V. L. Evans or John Garrett survey, and portions thereof, as claimed by them under deeds duly registered, admitted; also, title of defendant Jones to the Gray and Stiehl certificates, and that such certificates hat'e been duly located and report made thereof to the General Land Office as required by law, admitted; also, that the defendant Mullin has complied with all the requirements of the law in taking out his pre-emption. 3. This agreement shall not be so construed as to affect in any Avay defendants’ defenses under the statutes of limitations, nor their claims for improvements; and plaintiffs reserve the right to show that such locations and surveys under the Gray and Stiehl certificates are void.”
The other defendants were left to prove their titles, if they had any. It was proved by parol that Yaws purchased a part of the Stiehl suiwey, and that Moses Gage purchased some portion of the Gray from Jones. [14]*14At what time Gage purchased, or how much land, does not appear. He and Burleson occujned the Burleson place in the southeast part of the Gray, one succeeding the other, making the possession continuous for three years, and both of them claimed in their own right.
How, it is contended by the appellants that by the foregoing agreement and the developments upon the trial the suit resolved itself into one purely and solely of boundary, and that notwithstanding the form of the action is in trespass to try title the judgment in the first suit is a bar to this suit. We can not agree to the proposition. It can not be determined from the verdict and judgment in the first suit whether the question of boundaries was adjudicated or not as to the parties pleading limitation in that suit. The verdict and judgment were general; the court submitted to the jury the issue of limitation as pleaded, as well as the question of boundary. We have no assurance that the verdict and judgment were not predicated upon limitation. There being no certainty as to which issue the verdict was based upon, we can not conclude that the jury rested it upon boundary, and hence we can not say that the question of boundary has ever been judicially determined.
Mullin, it is true, could not avail himself of the plea of limitations of three or five years, under a pre-emption claim, it not being patented (Clark v. Smith, 59 Texas, 279, and Buford v. Bostick, 58 Id., 64); but the court in the first suit submitted his plea of limitation under the three years’ statute, and though it was improperly done, the verdict may have been upon the plea.
As the case is presented we can not say that the plea of res adjudicata was sustained as to the defendant Moses Gage. If the facts presented in the former suit were such as to sustain it, this may be shown on another trial.
Plaintiffs dismissed suit and disclaimed all land claimed by them against the Burlesons and remitted judgment against Reeder, which was allowed by the court and judgment entered accordingly. The court had the power to do this or to reform its judgment for cause shown at any time during the term.
The judgment in the first suit was rendered April the 18th, 1878; the second suit was filed April the 17th, 1879; citations did not issue until the 29th day of May, 1879. From this appellants insist that the second suit was not brought within one year from the rendition of the judgment, and therefore was brought too late.
It was not shown that plaintiffs, by instructions to the clerk or by any other means, caused any delay in issuing citations; nor does it appear that they were guilty of any negligence in respect to the issuance of the process. Upon the filing of the petition it was the duty of the clerk to issue citations, and if there was any delay the plaintiffs will not be presumed to be responsible for it. Hoffman v. Cage, 31 Texas, 596; 48 Id., [15]*15531; 30 Id., 494. The filing of the petition was the commencement of suit so far as it can be affected by the statute requiring second suit to be brought within one year.
Defendants offered in evidence certain plots that had been used by plaintiffs on a former trial, “for the purpose,” as stated in the bill of exceptions, “of showing that the location and boundaries as now claimed by plaintiffs was different from the location and boundaries of the Hunt survey as claimed on a former trial.” The court excluded the evidence. We do not think the court erred in the ruling. Plaintiffs were not bound by the evidence offered by them on a former trial, nor were they compelled to follow the same methods of establishing their boundaries. Parties are not held to such a strict rule of consistency as contended for by defendants. Misconceiving the effect of evidence offered on one trial, they could repudiate it on another.
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Oollard, Judge.—This
is a second suit; and the first question presented by the record is, can it be maintained as a second suit of trespass to try title?
The first suit was filed May 11th, 1877, and terminated in a verdict and judgment for defendants April the 18th, 1878. The second suit was filed April 17th, 1879, within one year from filial judgment, as required by the statute. Defendants, on the 19th of October, 1885, set up the former judgment as res adjudimta, upon the ground as claimed by them that the only question involved in controversy was one of boundary. Both suits were in form of trespass to try title; but if it is found to be true that the sole issue between the parties was to settle their boundary lines, [13]*13the plea of res adjudicata must prevail. Spence v. McGown, 53 Texas, 30; Bird v. Montgomery, 34 Texas, 713; Corporation San Patricio v. Mattis, 58 Texas, 242.
In the case of Bird v. Montgomery the issue of boundary was made in the pleadings by plaintiff, and was accepted by the defendant, both parties asking the court to fix the disputed boundary. The court did so, and it was held to be res adjudicata in another action for the same purpose. In the case of Spence v. McGown the court say it was “originally brought in form of an action of trespass to try title; but in reality, by subsequent amendment and agreement of the parties, it became a suit to settle and adjust the boundary line between lots No. 2 and No. 3 in block 13 in the city of Houston.” The court decided that a second suit for the same purpose could not be brought after final judgment in the first.
In the case in the 58 Texas Reports, above cited, the court approves the ruling in Spence v. McGown, and held that if the suit was nominally to try title but in fact to settle a disputed boundary, a second suit Avould not lie.
In the case before us, and in the present suit, Jones, Burleson and Burleson, Yrws, and Mullin pleaded title by the three years’ statute of limitation; and Jones also claimed by the five years’ statute; and the same parties (or their vendors, as in the case of Burleson and Burleson, who are vendees of Faucett) set up limitation as a bar to plaintiffs’ recovery in the first suit. In that suit the court submitted the question of limitation under the three and five years’ statutes. There was a general verdict for the defendants, and a judgment “that plaintiffs take nothing by their suit,” and that “defendants go hence without day.” Before the trial of the second suit, on the day of the trial, the 22nd day of October, 1885, the parties filed an agreement as to evidence, as follows: “1. Title, but neither location nor boundaries of the Hunt suiwey, admitted in plaintiffs. 2. Titles of defendants, Jones, Burleson, and Burleson, in the V. L. Evans or John Garrett survey, and portions thereof, as claimed by them under deeds duly registered, admitted; also, title of defendant Jones to the Gray and Stiehl certificates, and that such certificates hat'e been duly located and report made thereof to the General Land Office as required by law, admitted; also, that the defendant Mullin has complied with all the requirements of the law in taking out his pre-emption. 3. This agreement shall not be so construed as to affect in any Avay defendants’ defenses under the statutes of limitations, nor their claims for improvements; and plaintiffs reserve the right to show that such locations and surveys under the Gray and Stiehl certificates are void.”
The other defendants were left to prove their titles, if they had any. It was proved by parol that Yaws purchased a part of the Stiehl suiwey, and that Moses Gage purchased some portion of the Gray from Jones. [14]*14At what time Gage purchased, or how much land, does not appear. He and Burleson occujned the Burleson place in the southeast part of the Gray, one succeeding the other, making the possession continuous for three years, and both of them claimed in their own right.
How, it is contended by the appellants that by the foregoing agreement and the developments upon the trial the suit resolved itself into one purely and solely of boundary, and that notwithstanding the form of the action is in trespass to try title the judgment in the first suit is a bar to this suit. We can not agree to the proposition. It can not be determined from the verdict and judgment in the first suit whether the question of boundaries was adjudicated or not as to the parties pleading limitation in that suit. The verdict and judgment were general; the court submitted to the jury the issue of limitation as pleaded, as well as the question of boundary. We have no assurance that the verdict and judgment were not predicated upon limitation. There being no certainty as to which issue the verdict was based upon, we can not conclude that the jury rested it upon boundary, and hence we can not say that the question of boundary has ever been judicially determined.
Mullin, it is true, could not avail himself of the plea of limitations of three or five years, under a pre-emption claim, it not being patented (Clark v. Smith, 59 Texas, 279, and Buford v. Bostick, 58 Id., 64); but the court in the first suit submitted his plea of limitation under the three years’ statute, and though it was improperly done, the verdict may have been upon the plea.
As the case is presented we can not say that the plea of res adjudicata was sustained as to the defendant Moses Gage. If the facts presented in the former suit were such as to sustain it, this may be shown on another trial.
Plaintiffs dismissed suit and disclaimed all land claimed by them against the Burlesons and remitted judgment against Reeder, which was allowed by the court and judgment entered accordingly. The court had the power to do this or to reform its judgment for cause shown at any time during the term.
The judgment in the first suit was rendered April the 18th, 1878; the second suit was filed April the 17th, 1879; citations did not issue until the 29th day of May, 1879. From this appellants insist that the second suit was not brought within one year from the rendition of the judgment, and therefore was brought too late.
It was not shown that plaintiffs, by instructions to the clerk or by any other means, caused any delay in issuing citations; nor does it appear that they were guilty of any negligence in respect to the issuance of the process. Upon the filing of the petition it was the duty of the clerk to issue citations, and if there was any delay the plaintiffs will not be presumed to be responsible for it. Hoffman v. Cage, 31 Texas, 596; 48 Id., [15]*15531; 30 Id., 494. The filing of the petition was the commencement of suit so far as it can be affected by the statute requiring second suit to be brought within one year.
Defendants offered in evidence certain plots that had been used by plaintiffs on a former trial, “for the purpose,” as stated in the bill of exceptions, “of showing that the location and boundaries as now claimed by plaintiffs was different from the location and boundaries of the Hunt survey as claimed on a former trial.” The court excluded the evidence. We do not think the court erred in the ruling. Plaintiffs were not bound by the evidence offered by them on a former trial, nor were they compelled to follow the same methods of establishing their boundaries. Parties are not held to such a strict rule of consistency as contended for by defendants. Misconceiving the effect of evidence offered on one trial, they could repudiate it on another. Defendants did not offer the plots as evidence in themselves tending to establish the disputed boundaries, but merely to show inconsistency of plaintiffs’ evidence on two trials. We think the evidence was properly excluded.
Defendants asked the court to instruct the jury as follows: “The plaintiffs seek to recover by constructing the Hunt survey upon the old Darling survey, beginning 2700 vrs. M. 80 deg. W. from the old Darling southeast corner. If this be not an established corner it can be determined only by constructing the Darling survey. To do this the jury must follow the footsteps of the surveyor by beginning on the Austin southeast corner, thence to the Austin corner on the Stewart east boundary line, thence with the Stewart east line to the southeast corner thereof, thence west with the south boundary line of the Stewart 1004 vrs., thence south 10 deg. west 5200 vrs. for the southwest corner of the old Darling, and thence east to the east boundary line of the new Darling, and thence to the place of beginning.”
We think the court properly refused the charge. Upon the supposition that the location of the Hunt must be governed by the southeast corner of the old Darling" survey, the Hunt might by its calls begin on the Darling south line, or 2700 varas north 80 west from its southeast corner. The south line of the Darling runs due east and west. The Hunt calls to begin on the Darling south line north 80 west from its southeast corner. It cannot begin on the line and at the same time at any distance north 80 west from its southeast corner. There is a mistake in this call, which the jury, and not the court, can explain. If the survey is made to begin 2700 varas north 80 west from the southeast corner of the Darling, it would be in an entirely different position from that it would occupy if made to begin on the south line of the Darling. The verdict of the jury could alone elucidate the discrepancy. It was beyond the province of the court to instruct the jury where to begin the Hunt survey, even upon the hypothesis that it could only be located by the position of the southeast [16]*16corner of the Darling Is it correct to confine the northeast corner of the Hunt at a certain distance from the Darling southeast corner? We think not. The question should be left to the jury under the evidence. The jury might locate the Hunt by lines found on the ground at a greater distance from the Darling corner. There is a marked line found, running the course of the west line of the Hunt, from the Latham northeast corner. It Avas traced some 3000 varas from Latham’s corner; but Miller says, folloAving the line 2484 varas from Latham’s corner, and then running across, south 80 east, he struck another marked line which he traced running the course called for in the Hunt. He traced the line 2500 varas to a corner in the Graham league. He did not run the south or fourth line. The east line of this survey would be 2927 varas from the southeast corner of the Hunt. In case this survey should he identified as the Hunt survey, actually seen on the ground, and the jury should find it so, the southeast corner of the Darling and the exact distance from it could not be said to control the beginning of the Hunt. In the confusion and uncertainty of the lines and corners of the Darling, the Hunt, and adjacent surveys, Ave do not think the Hunt is inexorably bound by the southeast corner of the Darling survey.
The seventh instruction asked by defendants is of the same character as the one just considered. It Avas correct to refuse it. In locating a survey, or a corner, it is not absolutely necessary to folloAV the calls in the grant as given, that is, in the order given. It is often necessary to reverse the courses and calls, and by so doing obtain more accurate results than could be had by folloAving the order of the surveyor’s field notes. The jury may haAre concluded that the method of finding the southeast corner of the Darling, as indicated in the charge asked, Avas the most trustAvorthy, but they Avere not bound to do so. If the Darling survey was not in fact made upon the ground, as the jury may have concluded from the fact the lines and corners called for could not be found, why should the distances of the Avest lines have preference over the east line, especially Avhen a discrepancy was found in the Avest lines? It was found upon measuring from the southwest corner of the Austin to southeast corner of the SteAvart the distance Avas some 400 varas shorter than in the call of the Darling. If this should be of controlling force the east line of the survey Avould be 400 varas short.
Appellants asked the court to instruct the jury that “a call for a natural object, such as a creek, or for an artificial object, such as a well marked and long established public road, will control course and distance, and also the lines of the survey unless such lines are actually marked upon the ground.” This instruction was asked to apply to the testimony of Miller, who made a trial survey some 2500 varas below the Darling south line, where Buckner’s Greek and the Gonzales Road would very nearly correspond with the calls in the Hunt for such creek and road. [17]*17He said there were no evidences of the survey being the Hunt, other than the partial correspondence of calls for the creek and road. To so locate the Hunt would force it south ¿500 varas, entirely away from all its other connections. The charge here asked forcibly illustrates the doctrine, often laid down, that' while natural objects and artificial boundaries will generally prevail over course and distance, yet the former will often, from the nature of the case, be compelled to yield to the most inferior call. Everything being equal, the call for natural objects would have precedence, because most endurable and less liable to change, and are supposed to be selected as landmarks because of their immutability. This is only true when they are selected as locative calls, and are then not always absolute ; when they are noted in the field notes as mere incidental calls in passing, their reliability is weakened and sometimes rendered- wholly worthless. Distances called for between corners to creeks or roads unless specially designated in such manner as to show the intention to make them locative, are not such, and will not ordinarily have precedence over a call for course and distance. The calls in the Hunt for the creek and road are incidental, and unless shown to be intended as locative should not be so regarded if inconsistent with other locative calls. Had the court given the charge asked it would have been error.
Defendant Yaws asked the court to charge the jury upon his plea of three years’ limitation. We find there was proof tending to establish the plea; he claimed all the Stiehl location south of the Burleson 200 acres, and proved by parol, without objection, his purchase from Jones in 1875, and possession for more than three years before the suit was brought. The charge certainly should have been given as against the plaintiff Andrews. The plea of disability was established as to the other plaintiffs, and there was, as to them, no occasion to give the charge, though it might have been given with qualification as to disability.
There is only one more question we deem it necessary to consider in this case. It is aptly presented in the following assignment of error: “The verdict of the jury decides nothing; it leaves the case just where it began, with the field notes in the Hunt patent as the only guide to the officer who may be charged with the duty of putting the plaintiffs in possession of the Hunt survey.”
This assignment is well taken. The prime object of the whole controversy was to locate the Hunt survey; to determine what land the field notes include, and when found to be judicially established by a judgment, upon which a writ of possession could issue, informing the officer charged with its execution what particular land he is to deliver to plaintiffs. The field notes of the survey, as contained in the patent, are given in the petition; there is a general verdict for plaintiffs, describing no land, and a judgment is rendered for plaintiffs, describing the land as in the petition.
This brings us back to the very place we started from; no results are ob[18]*18tained, nothing is determined. It can not be said that plaintiffs’ recovery would embrace all the land claimed by the defendants. It was incumbent upon plaintiffs to show by reasonably satisfactory proof where their survey was located, and to furnish the jury with data by means of which it could be described. Had the petition given a description about which there could be no controversy, a general verdict would have been sufficient; then a judgment following the description in the petition would have settled the matter in dispute. The petition failing to furnish such description, the jury should have been instructed, in case they returned a verdict for plaintiffs, to identify the land by known metes and bounds, if the evidence afforded the means of doing so. As it is, we have a judgment that can not be intelligently enforced. The lines and corners of the Hunt are not found on the ground—at least the corners are not found; and though lines are found that to some extent correspond with the Hunt, it would not be contended that such lines have been by this proceeding judicially established as the true lines of the Hunt. Again, has the S. E. corner of the Darling been established? and must the Hunt begin 2700 vrs. N. 80 deg. W. from such corner, or on the Darling south line, which runs east and west? A number of such questions might be asked that would show that the sheriff, with the description in the judgment, would be unable to put the plaintiff in possession of any particular land. One class of evidence places the Hunt in one position, another class in another, and so on. To enforce the judgment rendered the sheriff must arbitrarily select and locate the land.
Our opinion is, the judgment should be reversed and remanded for a new trial, as to G. W. Jones, T. J. Mullin, Andrew Yaws, A. C. Erhard (administrator of C. Erhard’s estate), and Hoses Gage.
Reversed and remanded.
Adopted June 26, 1888.