GARRETT, Presiding Judge,
Section
B.—The controversy in this suit arose over the disputed location of the northwest corner of the William Woodford league. Appellant seeks a reversal of the judgment of the court below upon the following grounds, which have been assigned as error:
1. The refusal of the court to admit in evidence the record of a suit involving the title to the land in controversy, brought by P. G. Rucker against J. C. W. Midkiff.
2. The charge of the court with reference to the circumstances under • which course and distance should be resorted to in establishing the north boundary of the Woodford league; and in the submission of issues to the jury. Also in failing to instruct the jury as to the settlement between the parties in the suit in'the Justice Court.
3. That the verdict is contrary to the law and the charge of the court in failing to fix the boundary; and that it decides nothing, but leaves the matter still in dispute and unsettled.
4. That the verdict is contrary to the evidence, in that the line claimed by the plaintiff as the north line of the Woodford league was marked in 1872, and is not the true line.
A bill of exceptions was saved to the exclusion of the record in the suit of Rucker v. Midkiff. It sets out the petition, answer, and judgment in that suit, from which it appears that after the sale by the Ruckers to appellee, and the transfer of the notes by Ed. T. Rucker to P. G. Rucker, the latter brought an action of trespass to try title against Midkiff for the land sold by him to Motl. This suit was filed November 30, 1882, and was finally tried December 31, 1885, and resulted in a judgment for Midkiff. It is contended that by this judgment the claim of Motl to the land became res adjudicata, because Rucker held the superior title thereto from the fact that the purchase money had not been paid. Notwithstanding the reservation of the vendor’s lien in the deed, Motl had the right to the possession of the land under his contract of purchase, and title was vested in him, subject only to be defeated-by rescission for failure to pay the purchase money; and it might become perfect on payment of the notes. He was then the proper party to bring suit for the land. Rucker did not have the right of possession. In an action of trespass to try title the petition must state that the plaintiff was in possession of the land when the right of action accrued or when ousted, or that he was entitled to such possession. Rev. Stats., art. 4786. Although he held the superior title as between himself and his vendee, Rucker stood in the relation of a mortgagee of the land out of possession, and not entitled to possession until default on part of the vendee and a rescission by him of the contract, or a foreclosure. We refer to the following cases as bearing upon the point: Webster v. Mann, 52 Texas, 416;
Ann Berta Lodge v. Leverton, 42 Texas, 23; Fisk v. Miller, 13 Texas, 224; Edrington v. Newland, 57 Texas, 627; also, 61 Texas, 334.
The case of Breedlove v. Kramer (3 S. W. Rep., 561), cited by appellant, was decided on a quite different state of facts. In that case there was in the first place an agreement between Wilkins, the vendor of the land, Breedlove, the holder of the notes, and Kramer, the grantee in the deed and the maker of the notes, that Wilkins should bring the suit against the heirs of R. D. Evans in his own name to clear up the title. Also it appeared that R. D. Evans had the power to convey the land to Wilkins. It was held that the recovery by Wilkins inured to the benefit of Kramer. Motl was not concluded by the judgment in the suit of Rucker v. Midkiff, and there was no error in excluding the record.
Taken as a whole, the charge of the court was full, clear, and explicit as to the rules of law which should control the jury in ascertaining the true location of the north boundary line of the Woodford league, and we find no error in it for which the case should be reversed.
The failure of the court to instruct the jury with reference to the agreement of settlement in the Justice Court should have been corrected by a special charge at the request of the defendant, and we do not think that it was error on the part of the court for which the judgment should be reversed to fail to so instruct the jury.
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GARRETT, Presiding Judge,
Section
B.—The controversy in this suit arose over the disputed location of the northwest corner of the William Woodford league. Appellant seeks a reversal of the judgment of the court below upon the following grounds, which have been assigned as error:
1. The refusal of the court to admit in evidence the record of a suit involving the title to the land in controversy, brought by P. G. Rucker against J. C. W. Midkiff.
2. The charge of the court with reference to the circumstances under • which course and distance should be resorted to in establishing the north boundary of the Woodford league; and in the submission of issues to the jury. Also in failing to instruct the jury as to the settlement between the parties in the suit in'the Justice Court.
3. That the verdict is contrary to the law and the charge of the court in failing to fix the boundary; and that it decides nothing, but leaves the matter still in dispute and unsettled.
4. That the verdict is contrary to the evidence, in that the line claimed by the plaintiff as the north line of the Woodford league was marked in 1872, and is not the true line.
A bill of exceptions was saved to the exclusion of the record in the suit of Rucker v. Midkiff. It sets out the petition, answer, and judgment in that suit, from which it appears that after the sale by the Ruckers to appellee, and the transfer of the notes by Ed. T. Rucker to P. G. Rucker, the latter brought an action of trespass to try title against Midkiff for the land sold by him to Motl. This suit was filed November 30, 1882, and was finally tried December 31, 1885, and resulted in a judgment for Midkiff. It is contended that by this judgment the claim of Motl to the land became res adjudicata, because Rucker held the superior title thereto from the fact that the purchase money had not been paid. Notwithstanding the reservation of the vendor’s lien in the deed, Motl had the right to the possession of the land under his contract of purchase, and title was vested in him, subject only to be defeated-by rescission for failure to pay the purchase money; and it might become perfect on payment of the notes. He was then the proper party to bring suit for the land. Rucker did not have the right of possession. In an action of trespass to try title the petition must state that the plaintiff was in possession of the land when the right of action accrued or when ousted, or that he was entitled to such possession. Rev. Stats., art. 4786. Although he held the superior title as between himself and his vendee, Rucker stood in the relation of a mortgagee of the land out of possession, and not entitled to possession until default on part of the vendee and a rescission by him of the contract, or a foreclosure. We refer to the following cases as bearing upon the point: Webster v. Mann, 52 Texas, 416;
Ann Berta Lodge v. Leverton, 42 Texas, 23; Fisk v. Miller, 13 Texas, 224; Edrington v. Newland, 57 Texas, 627; also, 61 Texas, 334.
The case of Breedlove v. Kramer (3 S. W. Rep., 561), cited by appellant, was decided on a quite different state of facts. In that case there was in the first place an agreement between Wilkins, the vendor of the land, Breedlove, the holder of the notes, and Kramer, the grantee in the deed and the maker of the notes, that Wilkins should bring the suit against the heirs of R. D. Evans in his own name to clear up the title. Also it appeared that R. D. Evans had the power to convey the land to Wilkins. It was held that the recovery by Wilkins inured to the benefit of Kramer. Motl was not concluded by the judgment in the suit of Rucker v. Midkiff, and there was no error in excluding the record.
Taken as a whole, the charge of the court was full, clear, and explicit as to the rules of law which should control the jury in ascertaining the true location of the north boundary line of the Woodford league, and we find no error in it for which the case should be reversed.
The failure of the court to instruct the jury with reference to the agreement of settlement in the Justice Court should have been corrected by a special charge at the request of the defendant, and we do not think that it was error on the part of the court for which the judgment should be reversed to fail to so instruct the jury.
Was the verdict contrary to the evidence? From an inspection of the field notes as set out in the petition and carried into the judgment it will be seen at once that there is a misrecital or clerical error in the call for the beginning corner. The call is, “beginning S. 71 degrees E. 830 varas from original N. E. corner of Woodford league.” “N. W.” should have been written for “N. E.” We think the mistake may be treated as a mere clerical error, and that the amendment readily suggests itself. The land in controversy is embraced in a strip extending east and west 830 varas, and is about 148 varas wide. It lies between a line on the south claimed by Stephens to be the line between the Stone and Woodford leagues, and a line on the north which is claimed by appellee Motl to be said league line. Several leagues, including the Stone and Woodford, were located contiguous to each other by Moses Cummins, a colonial surveyor, in November, 1834, the time extending from November 3 to December 2; and the evidence shows very conclusively that they were surveyed on a common base line, some lying south and others north of the line, which ran in a course south 71 degrees east. The Duggins league, or No. 1 as it was called, was surveyed first; and its southwest corner was fixed by a call of “6800 varas north 19 degrees east from the northeast corner of the Michael Reed league,” which is easily identified. In running out the Duggins league and the Hood and Stone north of it the north boundary
line is clearly established. Each successive survey calls for the other in such a manner as to leave no doubt of the intention of the surveyor to make a continuous straight base line. The field notes of the Wood-ford call for the. northeast corner of the Dug-gins, and a continuation of the north line of the Duggins was intended to be the north line of the Woodford. But some of the witnesses identify an elm tree about
135
yards north of the course of the Duggins line as the northeast . corner of the Duggins and northwest corner of the Woodford. If a line should be run from the northeast corner of the Woodford as claimed by the plaintiff to the southwest corner of the Stone in the Duggins north line, the course would be north 74 degrees west, or a reverse call of south 74 degrees east instead of south 71 degrees east, as the call is for the north line of the Woodford. If we adhere to the base line as indicated by all the evidence the defendant’s claim is right. In order to sustain plaintiff’s contention, we must leave it at some indefinite point and establish the northeast corner of the Duggins, which is the northwest corner of the Woodford, at a point some distance north of it. Row, as to these two corners. The call in the Duggins field notes is, “an elm fifteen inches in diameter bears south 88 degrees east 21 varas, and a hackbferry ten inches in diameter bears north 86 degrees west 28 varas.” The bearing claimed by plaintiff is “an elm marked H in a small prairie.” This is discredited by the witnesses Lagrone and Flint as a tree marked by them as a guide to the corner. All agree that there is an elm 135 varas south of the corner as claimed by the plaintiff, marked with old colony marks. Running the west line of the Woodford by course and distance both trees áre near the continuation of the line; but distance gives out before the first is reached, and the latter is over 200 varas beyond, the surveys being-square leagues whose sides are 5000 varas, and the distance to the “elm marked H,” etc., is 5240 varas. Ro witness undertakes to identify the corner positively. There is even more doubt about the northwest corner of the Woodford. Without going over the testimony of the several witnesses in detail, it is sufficient to say that we are clearly of the opinion that the plaintiff failed to sustain the line as claimed by him.
In view of another trial of the case, we think it would be proper to submit to the jury the question of an agreed boundary as indicated in the settlement of the forcible entry and detainer suit. The description of the premises in the complaint filed by Stephens calls for the beginning point at a place “1000 varas east of the southwest corner of the Thornton Stone league and on the south line thereof, running thence,” etc. If this description is shown to include the land in controversy, and there is no dispute about the settlement, the plaintiff might be concluded thereby, although it was in fact his homestead, and the
agreement of settlement was not signed and acknowledged by liis wife. Levy v. Maddox, 81 Texas, 210.
Adopted November 3, 1891.
Since the case will be reversed and remanded, we do not think it is necessary to consider whether or not the verdict was sufficient to determine the issue as to boundary; further error, if any, is not likely to occur on another trial.
We are of the opinion that the judgment of the court below should be reversed and the cause remanded for another trial.
Reversed and remanded.