Bragg v. Lockhart, 11 Tex. 160

Hemphill, Ch. J. It is contended by the plaintiff, that, as lot No. 8 calls for the south corner of the half league, and as that, by the calls of the original deed, is Kuykendall’s corner, it should embrace all the land lying between lot No. 7, and the Kuykendall and Stephens leagues; and that the plaintiff, being entitled to all of the lot No. 8, except the one hundred and four acres sold to Green, is consequently entitled to the land within those limits—this being the land which is in controversy.

The objection to this is, that though there is a call, in the original deed to Munson, for Kuykendall’s corner, yet there is no evidence that this corner was notorious or established at the time of the original survey, or in fact, that it was ever known until established under an order of survey in this suit. It was in the prairie, and there was no visible monument or mark for its designation. It was not more notorious, in fact, than the course and distance of the survey.

Both were ideal, and one could be traced with as much ease and certainty, as the other; and one afforded as much evidence of the actual location or survey of the league, as did the other. But, whatever may be the true mode of surveying Munson’s south-western line—and it is not necessary that it should be determined—• yet, it is urged that the land obtained by Jas.

Charles, being lot No. 8, was run out at the time of the partition, with actual metes and bounds, and did not touch Kuykendall’s corner, nor embrace the land in suit; and that, at the time of the purchase by the plaintiff, the lot was again surveyed, pursuing the lines as made seven years before, at the time of the partition, and not extending to the land now claimed by plaintiff; that although the south corner of the one-half league is called for, in the partition survey, yet that the commissioners did not thereby intend to make Kuykendall’s corner the south corner of lot No. 8, nor that it should be fixed at any other place than where it was reached by course and distance, and established by their actual survey; that this was the land apportioned to James Charles; that he was entitled only to this and could sell no more; that the metes and bounds of this lot, when assigned to James Charles, having been fixed and ascertained, and they having been again established at the time of the purchase by the plaintiff, he could not be mistaken as to their extent, nor go beyond their limits.

These positions, when applied to the circumstances of this case, cannot be successfully controverted. The lines of the lot, at the time of the plaintiff’s purchase, were notorious. They had been established for years ; and they were again fixed by an actual survey ; and by that he must be bound. The land, in litigation, is nearly equal to the whole amount of the lot Ho. 8; and it is very clear that the commissioners did not intend that the distributee should have nearly twice as much as was allotted to him and as was included in the actual survey.

And it is equally clear that the plaintiff, purchasing one hundred and eighty acres by the metes and bounds of an actual survey, cannot so extend them as to embrace more than four hundred acres. It is not a material circumstance in the case, that the defendant’s title, as deduced from Green, is defective. He is in possession; and whether his title be good or bad is immaterial, so long as the plaintiff shows no right.

The facts_that the plaintiff acquiesced in the purchase by the defendant, setting up no claim for himself, and that those under whom the plaintiff claims, so far as appears, made no pretensions to the land in dispute, are circumstances which militate against the equity of the plaintiff’s claim; but they are not of a character to defeat his legal rights. The facts in relation to possession on the one part, and acquiescence on the other, are not sufficiently proven to require comment upon the effect of acquiescence and laches in the prosecution of rights.

Upon the whole, we are of opinion that there is no error in the judgment, and that the same be affirmed. Judgment affirmed.