Wyatt v. Foster & Raffety

GAINES, Associate Justice. This suit was brought by Foster & Raffety against Bryant Hayes and B. W.- Hayes as makers of certain promissory notes payable to the plaintiffs, and against Charles Baugh and W. R. Sharp, Jr., as vendees from Bryant and B. W. Hayes of a tract of land for the purchase money of which the notes were given. A lien upon the land was claimed in the petition and there was a prayer for its en- , forcement. The plaintiffs originally sold the land to Bryant and B. W. Hayes, who executed the notes sued upon for part of the purchase money. After their purchase they sold the land to their codefendants. Appellant Wyatt intervened in the suit, claiming to be the owner of a part of the land and praying a judgment for its recovery. The plaintiffs recovered a judgment for the amount of the notes against the makers, and also obtained a decree enforcing their lien upon the land. It was also adjudged that the intervenor should take nothing by reason'of his suit. The intervenor and the defendants Baugh and Sharp appealed from the judgment; but Sharp and Baugh have failed to file briefs in this court and their appeal can not be considered. The plaintiffs, Foster & Raffety, claimed title to the land sold by them to Bryant and C. W. Hayes, and conveyed by the latter to their codefendants, under a regular chain of conveyances proceeding from the patentee of the M. M. Hill survey. To so much of the land conveyed as is embraced within the field notes of the Hill survey defendants Baugh and Sharp have title, subject to the plaintiffs’ lien for their purchase money. But the appellant Wyatt claims that all of the tract sold by the plaintiffs, which consists of 800 or 900 acres, except 200 acres, is not included in that survey. His counsel in his behalf states the issue as follows: “The intervenor, Wyatt, claims title to the western portion of this land [417] by patent dated June 2, 1886, as assignee of William B. Sharp, Jr., under a location, file, and survey made by him by virtue of said. Sharp certificate. The Sharp location and patent is junior to that of the M. M. Hill league. “The principal question involved in this suit is, What is the true south boundary line of the Hill league? and this depends solely as to where is the true southwest corner of said league. “The appellees, Foster & Baffety (plaintiffs below), claim that the west boundary line of the Hill league in its call going south extends over its field note distance to an excess of 625 varas, and extends to and reaches the north line of the James Campbell survey Eo. 138, and then runs eastward with the north lines of Campbell and Shackelford surveys, and thence back in some way to the beginning corner of the Hill on the Colorado Biver; thus covering up a portion of the land patented to Wyatt and all of the State survey made by virtue of the Sharp certificate. “The intervener, Wyatt, claims that said Hill league line on its west boundary running south stops at its field note distance of 2350 varas at a mound, and then runs east on course and distance to its beginning corner on the river, thus leaving the space south of the line as thus run, and between it and Campbell and Shackelford surveys, for the land located by the Sharp certificate. The principal question then is only one of boundary line.” The accompanying plat shows the position of the Hill and the adjoining and neighboring surveys on the south and west. (See next page.) The Hill Avas first surveyed October 26, 1839, and then again Hovembev 10, 1845. It Avas upon the field notes of the latter survey that the patent issued. Briefly stated they are as follows: Beginning at the northeast corner of survey Eo. 1 for B. G. Mercer (describing it); thence up the Colorado Biver Avith its meanders (giving them) to a stake (described by bearing trees); thence west 9159 varas to a mound of stone; thence south 2354 varas to a mound on the north boundary line of survey Eo. 138; thence east 3803 varas with the north boundary line of survey Eo. 138 to its northeast corner; thence south 225 varas to the northwest corner of survey Eo. 132; thence east 1901 Araras Avith the north boundary line of said survey to its northeast corner; thence north 49 varas to the northwest corner of survey Eo. 1, made for B. G. Mercer; thence east 4220 varas Avith the north boundary line of said survey to the place of beginning; containing five labors of arable and twenty-one labors of piasture land. Ho. 138 is the James Campbell survey, and Ho. 132 is the F. S.Shackelford. The field notes of the Campbell call to begin at the northwest corner of Ho. 137 (the F. C. Burt), and to run thence north 2895 varas to a mound; thence east 5376 varas to a mound; thence south 994 varas to the northeast corner of Ho. 134 (the W. J. Shackelford); thence west [419] 3802 varas to the northwest corner of Ño. 135 (the G-. S. Bledsoe); thence south 1901 varas to the southwest corner of No. 135, and thence west to the beginning. [419] The field notes of the F. S. Shackelford No. 132 call to begin at the northwest corner of No. 133 (the F. P. Shackelford); thence east 1901 varas with the north boundary line of No. 133 to the southwest corner of No. 1 (the E. G-. Mercer); thence north 190 varas with the west boundary of No. 1; thence west 1901 varas with the south boundary line of No. 104 (the M. M. Hill), and thence south 1901 varas to the beginning. The field notes of the Mercer No. 1 call to begin at the northeast corner of survey No. 2 (Levi Mercer); thence to run up the river, meandering it, to a corner marked by bearing trees; thence west 4220 varas to a stake; thence south at 49 varas the northeast corner of No. 132 (F. S. Shackelford)'and 1950 varas the southeast corner of No. 132; thence east with the north boundary line of No. 133 (F. P. Shackelford) 787 varas to northeast corner of No. 133; thence south 620 varas a stake, and thence east 2333 to the beginning. If the Hill survey be controlled by the distance called for from its northwest to its southwest corner, the latter and the southeast corner of the Hardin are at the same point, and the south boundary line of the Hill is where the appellant claims it to be. But if the west line be extended to the north boundary of the Campbell as called for, then there is no Vacancy between the Hill on the north and the Campbell and Shackelford surveys on the south, and appellant’s patent, being subsequent to these surveys, is void. To extend the west line of the Hill as appellees claim it should be gives an excess in the survey of several hundred acres; besides in running east from the point' 49 varas north of the northeast corner of survey No. 132 the course and distance both have to be changed in order to reach the place of beginning. The northeast corner of the Mercer is well established and there is a marked line running west from that point; but run by course and distance it lacks several hundred varas of reaching surveys Í32 and 133 as called for in its.field notes, and also lies several hundred varas further north than the calls in the field notes for the latter surveys would indicate. So that if the last call of the Hill, which is to run east from a point 49 varas north of No. 132, be run according to calls it conflicts with the Mercer, and on account of the course of the river the distance is too short. In addition to this the witness found a marked line extending east from the southeast corner of the Hardin, which if extended east according to the courses and distances called for in the Hill would avoid the conflict with the Mercer. The line claimed by the appellees as the north line of the Campbell and the south line of the Hill is not marked. These are the main facts by which appellant’s claim is supported. [420] The transcript does not show when the E. G-. Mercer was surveyed, but it does show that the Hill and the other old surveys lying south of it were surveyed about the same time and by the same surveyor. The E. S. Shackelford No. 132, October 15, 1845; the W. J. Shackelford No. 134, the Bledsoe No. 135, and the Burt No. 137, October 16, 1845; the Campbell No. 138, November 8,1845, and the Hill No. 104, November 10, 1845. The southeast and southwest corners of the Campbell, the northwest and northeast of the Burt, the northwest, northeast, and southeast of the E. S. Shackelford, the northwest, northeast, and southeast of the W. J. Shackelford were identified by objects called for in the field notes and found upon the ground. The north corners of the Campbell were not found except by course and distance. At the southwest corner of the Hill a mound is called for, and at the point where an extension of its west line intersects the north line of the Campbell a natural mound was found, but there were other like mounds, near the spot. No bearing trees were found and none were called for, though there were trees in that .vicinity. Also a mound was found near the east end of the line called for in the next call; but the surveyors who testified as to these mounds did not attach much importance to the fact, and neither do we. But on the other hand, since all the surveys which are called for in the field notes of the Hill, and the field notes of which call for the Hill, were made by the surveyor who. surveyed the Hill; and since all these surveys were made withih a few days of each other—the survey of the Campbell especially having been made on one day and that of the Hill the next— we are of the opinion that very clear evidence would have to be adduced in order to justify the conclusion that any vacancy existed between the surveys as actually run. It is clear that it was not the intention of the surveyor to leave a vacancy, and the presumption is that the north line of the Campbell is the same as the south line of the Hill; so also with the north line of the Shackelford. The discrepancy in the field notes of the Hill is capable of correction, first by extending the west line something over 600 varas south and by a corresponding extension of the call north 49 varas from the northeast corner of the Shackelford No. 132 so as to reach the northeast corner of the Mercer or the prolongation of its north line. This would require a change of other distances but none of the course. By extending the E. G. Mercer so as to close on the two Shackelford surveys Nos. 132 and 133, and by observing the calls in the Hill for the lines of the Campbell, the Shackelford No. 132, and the E. G. Mercer, no vacant land is left; and it was the evident intention of the surveyor to leave none. It is true that in order to attain this result a change in the distance called for in several lines of the Mercer and the Hill would be required; but of all the calls in a survey that for distance is of the least dignity and ordinarily must yield to the calls for the corners and lines of surrounding surveys. Maddox v. Fenner, ante, 279. [421] Delivered January 30, 1891. The case cited was very like the case before ns. But the present is a stronger case for the application of the doctrine, from the fact that the Hill not only calls for the Campbell and Shackelford, but the field notes of the latter call for the line of the Hill. To the fact that on the west line of the Hill, at "the distance called for from its northwest corner, a marked corner is found we attach no importance. The Hill field notes call only for a mound as its southwest corner, and the testimony.was that the marked corner was established in surveying the Hardin, and that the surveyor who ran the lines of the latter looked for marks of the Hill corner but failed to find any. We conclude that the court did not err in holding that the Hill survey embraced the land in controversy and in giving judgment against the inter venor. The intervenbr also complains that the court erred in admitting in evidence the notes upon which the suit was brought without proof of their execution. But we are of opinion that this is a question which does not concern him. He occupies the position in the suit of the"plaintiff in ah action of trespass to try title. The burden was upon him to prove his • title, and this he failed to do. The judgment is affirmed. Affirmed.