Asa Hoxey v. Tacitus Clay, 20 Tex. 582

Wheeler, J. We think the call for “ Cole’s southwest corner” a good call, inasmuch as it was capable of being certainly ascertained by tracing lines of his survey, which were known and recognized and established by landmarks, to their intersection at that corner. But in our view of the case, this will not affect its division. We think the partition made by the mutual consent and agreement of the parties, under the circumstances, must be deemed binding upon them, and so to conclude the plaintiff’s right of action.

The division line was run for the purpose of making partition by the mutual consent of all the parties in interest. It was run at their instance; they were present superintending the work, and it is to be deemed their joint act. They all appear to have had equal means of information; but to have been at the same time equally uninformed as to the exact position of the southwest corner of Cole’s survey. In point of fact it had never been established and marked by any natural or artificial object upon the ground; and was consequently not known.

After running the line D,—3, [¡the fourth line of Hoxey’s field-notes.—Reps.] by course and distance according to the calls, in the absence of landmarks, the parties made search for the indicated corner, but did not find it. Previous calls for distance had not corresponded with the actual survey upon the ground, where it could be traced, in the timber, and they must have been aware that this might not.

If, then, they intended the call for Cole’s corner to control as to the length of the line D,—3, not finding it, they should have proceeded no further until they had taken measures to learn certainly its true position. That was the time to have set about finding the lost corner; which might have been done by taking the requisite pains. But instead of this, knowing they might not have the requisite distance from that corner, they proceeded to complete the survey, and executed deeds of partition accordingly.

Under such circumstances, it is believed, it will not be found that equity has afforded relief to a party on the ground of mistake.. Where the means of information are. equally open to both parties ; and where each is presumed to exercise his own skill, diligence and judgment, in regard to all extrinsic circumstances, equity will not relieve.

In like manner, where the fact is equally unknown to both parties ; or where the fact is doubtful from its own nature; if the parties have acted with entire good faith, as it cannot be doubted they did in this instance, a Court of Equity will not interpose to afford relief on the ground of a mistake of fact. (1 Story, Eq. Sec. 149, 150.) The means of information were alike accessible to all the parties. The necessity of resorting to those means, if they intended their rights in the partition to be governed by the position of the Cole’s corner, was apparent when they* failed to find it.

That was the time to have ascertained or established its true position. Having disregarded it then, and gone on to make partition upon other and different data, it was after-wards too late to complain of the mistake. “ Where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance; whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly Damnum absque injuria.” (Id. Sec. 151.) . Such manifestly is this case.

The judgment is therefore reversed and the cause remanded. Reversed and remanded.