Bass v. Mitchell

Wheeler, Ch. J. It is scarcely necessary to say, that the deposition of the Commissioner of the General Land Office, was not admissible to prove the records of his office. But it was certainly competent to prove, by the witness, Hilliard, or any other witness, who was in possession of competent information of the fact, whether the original south-east corner of the inner town tract of the town, had been, or could be, found and established. The objection to the evidence, appears to have proceeded upon the ground, that the report and testimony of 294 the surveyor, appointed by order of the court, was conclusive. We do not so regard it. . The report of the survey was evidence ; (Hart. Dig. Art. 3222,) but certainly not conclusive, as to its coincidence with, and establishment of, the calls in the deed. (Bolton v. Lann, 16 Tex. Rep. 96.) The testimony of the surveyor could not be anticipated; and surely, it was competent to introduce countervailing evidence upon the trial. But neither in the survey, as returned, nor in his testimony, did the surveyor profess to have found the original corner, but the contrary. He supposed he had approximated it; but not that he had found it. Erom Ms testimony, it appears to have become lost; and consequently, it could not be' a controlling call in the deed. There was really no occasion to introduce the witness, Hilliard, in order, as it would seem, to disprove that which had not been proved; and his testimony might well be dispensed with, as unnecessary, until some evidence was offered tending to prove where the original corner really was. But the error was, in making this corner, which had not been found, as it was made by the charge of the court, a controlling call. Other material and certain calls were found. Established corners and lines of the surveys, actually traced upon the ground, were found to correspond with the calls of the deeds; and upon clearly settled principles, these must control a call for an object, which was uncertain and unknown. The law upon this subject has been so fully settled in former decisions, as to render unnecessary more than a reference to them. (Hubert v. Bartlett, 9 Tex. Rep. 97; George v. Thomas, 16 Id. 74; Id. 96; Anderson v. Stamps, 19 Id. 460.) If it had been proved, that this corner of the town tract was an established and known corner, when the labors were granted, and it had been certainly found, and was found not to consist with other calls in the deeds, it would then have been a question, whether that or the other calls should govern; and there would then have been occasion for the application of the rule, that the calls which are the most material and certain, shall prevail. But there was no discrepancy in the calls of the deed, .or be 295 tween the objects called for, and those found upon the ground; but a perfect coincidence. There was, therefore, no uncertainty, requiring a resort to rules of construction; and it would seem, no real difficulty in the law applicable to the case. We are of opinion, that there was error in the charge of the coru’t, as applied to the evidence, in making the south-east corner of the town tract a controlling call; for which, the judgment must be reversed, and the cause remanded. Reversed and remanded.