Stanus v. Smith

30 S.W. 262, 8 Tex. Civ. App. 685, 1894 Tex. App. LEXIS 239
CourtCourt of Appeals of Texas
DecidedNovember 28, 1894
DocketNo. 485.
StatusPublished
Cited by5 cases

This text of 30 S.W. 262 (Stanus v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stanus v. Smith, 30 S.W. 262, 8 Tex. Civ. App. 685, 1894 Tex. App. LEXIS 239 (Tex. Ct. App. 1894).

Opinion

NEILL, Associate Justice.

The appellee, J. D. Smith, brought this suit in the ordinary form of trespass to try title, against Bartek Stanus, Carlos Zigmond, and Peter Zigmond, to recover possession, and establish the boundaries, of survey number 26, in the name of Demacio de los Beyas, situated in Bexar County. After the original petition was filed, W. H. Irwin, John Kuleza, and Gustavus Stanus were by supplemental petitions made parties defendant.

Gustavus Stanus disclaimed any interest in the land. W. H. Irwin admitted the boundaries of the land as described in the plaintiff’s supplemental petition, and prayed that the south boundary line, as therein designated, be established as the north boundary line claimed by him. All the other defendants pleaded not guilty, and denied that they claimed or occupied any of the survey sued for. Bartek Stanus, Carlos Zigmond, and John Kuleza each impleaded his warrantors, respectively, W. H. Hill, Anton Stanus, and Joseph S. Kinnard, Jr., and asked judgment against them in event of plaintiff’s recovery. Neither Hill nor Stanus answered, but Kinnard denied that he sold any part of the survey in controversy. Defendant Peter Zigmond also pleaded improvements in good faith, and prayed judgment for their value in case the land was recovered by plaintiff. Carlos Zigmond and John Kuleza also pleaded the three and five years’ statutes of limitation.

All of the parties to the suit, except Hill and Anton Stanus, agreed that no question of title was involved in the suit between the plaintiff and the several defendants, but that it involved alone the location and establishment of the boundary lines between said survey number 26 and the P. Vela de Bubio, C. Williams, A. H. Young, O. H Peters, Anthony Deffenbaugh, Abraham Gasney, J. Isham, A. J. Phelan, A. B. Hill, and H. J. Howell surveys.

With this agreement, the case was tried before a jury, which resulted in a verdict and judgment in favor of John D. Smith, appellee, against Bartek Stanus, Carlos Zigmond, John Kuleza, Gustavus Stanus, and Peter Zigmond for the title and possession of said survey number 26, and adopting and fixing as its boundaries the field notes set out in plaintiff’s third supplemental petition; and in favor of defendant Irwin against Smith for the title and possession of the land claimed by him in his answer, and in favor of Peter Zigmond against the plaintiff for the sum of $100 as the value of the improvements claimed by him in his answer. Also in favor of the alleged warrantors, Hill, Stanus, and *688 Kinnard, on the claims of defendants Bartek Stanus, Carlos Zigmond, and John Kuleza, asserted against them on their warranties.

This appeal is by Bartek Stanus, Carlos Zigmond, Peter Zigmond, and John Kuleza, from the judgment against them in favor of Smith, as above described.

1. The objectionable portions of the surveyor’s reports were stricken out by the court on appellants’ motion, and no objectionable features in the remaining parts are indicated by the assignment of errors, or apparent to this court from an examination of the record. Besides, after the reports, with these objectionable features eliminated, were read in evidence, E. G. Graves, the surveyor who made them, was placed upon the stand as a witness for the plaintiff, and testified without objection fully to everything contained in the reports, including the portions stricken out by order of the court. The order of survey does not appear in the record, and in its absence we will not presume —in a suit like this, to establish and fix the boundaries of a survey, the original bearing trees of which are no longer extant — that the surveyor was not authorized to ascertain and describe in his report its true boundaries in such a manner as to enable the court to properly designate the survey in its decree.

2. The office of a supplemental petition is indicated by Rule 5 of the District Courts, from which it seems that the allegation of new facts in such a pleading should be in reply to those which have been alleged by the defendant. The plaintiff’s supplemental petition of .October 10, 1893, describing the land sued for as it was designated in the report of the surveyor, was not a replication to any matters pleaded by defendants. But it was not excepted to for that reason, but upon the ground that it assumed to determine the question of fact at issue. This objection was not good. It stated facts which were left to be determined from the evidence. If, however, the proper exception had been interposed to this pleading and overruled, we do not think it should avail the appellants here, because at their request a charge was given which instructed the jury to find for them if they believed the lines set out in said supplemental petition were not the true lines of the survey, thus recognizing the pleading as valid and putting in issue the land designated therein. If the verdict had been in appellants’ favor upon the issue presented by this charge, the plaintiff would be concluded by it; and as it is in his (plaintiff’s) favor, it should, if otherwise valid, also conclude the appellants.

3. The A. M. Berry survey, which was made by the same surveyor who made the Reyas, and only a few days afterwards, calls for the northeast boundary, southeast corner, southeast boundary line, southwest corner, and southwest boundary line of the Reyas. The surveyor who made both of them died long prior to the institution of this suit. The A. M. Berry survey was cancelled after it was made, and the land-occupied by it covered by other surveys. The field notes of this survey, made by the deceased surveyor who located it, were offered in *689 evidence by the plaintiff, and objected to by appellants, upon the ground that the survey was void and had been cancelled. No one claimed under this survey, and its field notes were not offered for any other purpose than as declarations of a deceased surveyor, who made it, as well as the survey of the land in controversy, to show the boundaries of the Reyas survey as established and recognized by him when the land was located. We think the field notes objected to were admissible for that purpose. Cottingham v. Seward, 25 S. W. Rep., 797. The cases of Wilson v. Stoner, 11 American Decisions, 664, and Improvement Company v. Munson, 14 Wallace, 442, cited by appellants’ counsel, are not applicable. They simply hold, that a void survey is not such evidence of title in one holding possession and claiming under it as would authorize the presumption of a grant.

4. It is assigned as error that the court failed to submit for the consideration of the jury the original boundaries and field notes of survey number 26, as set out in plaintiff’s original petition, and in submitting only different and contradicting lines and field notes set forth in his third supplemental petition, and in assuming they were the only lines and field notes in issue. This assignment is not supported by the record. The court, at the instance of appellants, did instruct the jury, that if they believed from the evidence that the lines of survey number 26, as set forth in plaintiff’s original petition, and claimed by defendants to be the true lines thereof, and that the lines set out in his third supplemental petition are not the true lines thereof and inconsistent therewith, to find a verdict for defendants.

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Bluebook (online)
30 S.W. 262, 8 Tex. Civ. App. 685, 1894 Tex. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanus-v-smith-texapp-1894.