Morrill v. Bartlett

Willie, Chief Justice. The court below, passing upon the law and the facts of • this case without the intervention of a jury, held that the land in controversy was not included in the Price survey, [649] and that Bartlett was entitled to recover the value of his improvements as a possessor in good faith. The question of the validity of the agreement, which the suit was brought to cancel, was decided in favor of appellant, and the agreement was set aside. In the opinion rendered by the supreme court at Tyler, the decision of the district judge was approved so far as it canceled the agreement, but the judgment was affirmed because the appellant did not offer to do equity by tendering Bartlett the value of his improvements; and it was also intimated that the court might not agree with the district judge in holding that the land in controversy was not included in the Price survey. We concur in the former opinion of the court in so far as it holds that the agreement should be set aside, and we are also clearly of the opinion that the land was embraced in the survey under which appellant claimed. Running the lines of that tract according to the field notes of the survey made by the proper officer for the original grantee, upon which the patent issued, they include the land in controversy beyond all doubt., If we run them according to the calls in the patent, and allow the distance of the second and fourth lines to control, it will not be thus included. The only difference between the language of the survey and that of the patent is in the use of the words, “ being corner of B. Gooch also,” in the former as part of the description .of Price’s third corner, which words are left out in the patent. The field notes in the original survey describe this corner with more particularity than do those contained in the patent, but there is not necessarily a conflict between the two. Ho intention is shown in the patent to change the locality of this corner, but a part of the words describing it' were evidently left out by mistake in copying the field notes into the patent. If a mistake, the proper mode of correcting it is by a resort to the actual survey made upon the ground, recorded in the county surveyor’s office, shown upon the county map, and filed amongst the records of the general land office. If recourse is had to these, they all concur in establishing the disputed corner at the point claimed by appellant, and include the land sued for within the boundaries of the Price grant.- It is not disputed but that this grant was located upon vacant land by virtue of a genuine certificate; that it was legally surveyed by the proper officer; that it was correctly traced upon the county map in the surveyor’s office; that the certificate, survey, field notes and a copy of the map were duly filed in the general land office; and that, according to these, the land had a common corner with the Gooch survey at the end of its second line. These facts established, [650] and no errors in the field notes being shown, nor other reason why the patent should not issue in accordance with the actual survey made, the grantee had a just and equitable right to the whole land thus surveyed and described; a title, upon which he could recover, against any party claiming under a junior grant, any portion of the land included within the boundaries of such survey. Hot only so, but he became authorized to have his title evidenced by a patent describing the land precisely as surveyed, and to compel the commissioner of the general land office to issue it to him. Commissioner General Land Office v. Smith, 5 Tex., 471. If, on the other hand, there was an error in the survey, the law pointed out the course to be pursued by the commissioner in order to have the same rectified, and as he did not pursue such course, we must presume that there was no necessity for his so doing. The law nowhere recognizes his right to change the calls of the field notes, or leave out any portion of them, so as to grant to the patentee a different tract of land from that actually run out by the surveyor. There can be no doubt but that Price or his vendees could have recovered against Ward or his vendees upon the certificate and the land surveyed by virtue of it, before the issuance of the patent. There can be no doubt, also, but that they were entitled to a patent describing the land exactly in accordance with such survey, and could have compelled the commissioner to issue it to Price. How, then, can they be debarred from such recovery by a mere failure on the part of the commissioner to perform the ministerial duty of issuing the patent in accordance with the survey ? As between Price and the government he would certainly be entitled to the land surveyed, and to have the wholtf of it patented to him. If as to third parties he is deprived of his right to claim any portion of it, because the patent fails to include it, this must occur by reason of want of notice to them of the true boundaries of the land as described in the original survey. What effect such want of notice might have upon the rights of the patentee, it is not necessary to consider in this case. The interested parties had full notice of the true boundaries of the land long before they made any location upon that part claimed to be vacant. Rainey, who did the locating, was at the time surveyor of the county and custodian of its land records, and had been for a long period of time after the Price survey was made, its field notes filed, and its shape delineated upon the county map. The deed from Price to Morrill describing the land as in the original field [651] notes had been on record in the county for twenty years. Adjoining surveys called for its lines as shown by the map and field notes, and no vacancy between it and them appeared to be open for location. Bainey, as he himself admits, whilst surveyor became interested in making a location on a portion of the land as thus designated, and, in order to create a vacancy, altered the county map so as to bring the upper line of the Price survey three hundred and twelve varas below where it was placed by the original field notes, but where it might well be located under the patent. He then placed the Ward certificate upon the vacancy for the benefit of himself and partner. These circumstances show that notice was brought home to the owners of- the Ward certificate of all the rights of the owners of the Price tract, and they cannot profit by any discrepancies between the survey and the patent. In Barnard v. Goode, 44 Tex., 638, this court gave effect to the description of a line contained in the original survey as against that shown by the patent upon a conflict between the .two. Upon the face of the patent it was evident that the survey would not close; whereas in the original field notes the lines formed a square. This was sufficient notice that the patent did not describe the land accurately, and necessitated a search into the original survey for a proper description. It was a question of notice at last. In this case, the claimants under the Ward grant were as fully aware of the defective description in the patent as if shown on the face itself. As to Bartlett there is no proof in the record that he ever paid anything for the land or received any deed for it, and he was fully aware, according to his own testimony, that there.was a controversy as to the north line of the Price grant before he improved the land claimed by him. He is clearly not within the position of an innocent purchaser without notice. We think that, under the facts proven below, the court should have found that the land in controversy was within the lines of the Price survey. If the original survey was erroneous in its description of Price’s third corner, and the commissioner of the general land office had the field notes returned to the surveyor’s office and corrected, and if in consequence of such correction the call for Gooch’s corner was omitted in the patent, the appellee will have an opportunity of showing such facts upon another trial. As this disposes of the present appeal, it is hardly necessary to consider the question of Bartlett’s right to recover the value of his improvements. It may be added, however, that the evidence was not sufficient to show him a purchaser in good faith. In addition [652] to want of proof of title or payment of purchase money, it does not appear that he was, at the time of improving, ignorant of the mistake for which the agreement was set aside. This was in substance an action of trespass to try title, and Bartlett was entitled to recover therein the value of his improvements by bringing himself within the rule of the statute regulating such actions. There is no requirement that a plaintiff in such action shall tender the value of such improvements or lose his land. It is sufficient if he pay for them within one year after judgment. We conclude that the motion for a rehearing must be granted, and the former judgment of affirmance set aside, and the judgment below reversed and the cause remanded. Reversed and remanded. [Opinion delivered March 16, 1883.]