J. W. Robertson v. Elias Mosson and others, 26 Tex. 248

Bell, J. One of the errors assigned is, that the court permitted Thomas H. Mays to testify as a witness in the ease. This point seems to be abandoned by the counsel for the appellant, inasmuch as no reference is made to it in the brief. If the witness Mays had been incompetent because of interest, we think it very questionable whether his competency could have been restored by the execution of the bond by two of the plaintiffs below to indemnify him. We have seen no authority that would warrant such a course of proceeding. We are of opinion, however, that the witness was not incompetent.

It is true, he was a remote warrantor of the title to the Gilbert survey. He sold to McGreal and to Kelly undivided portions of the Gilbert survey, describing the same as it is described in the patent from the government, and bound himself to warrant the title. But the title was not called in question in this suit; the controversy was about the true boundary. The question to be determined was, what is the legal meaning of the language of the patent, when considered in the light shed upon it by the acts constituting the survey.

Mays was not bound by his warranty to make good to his vendees the title to any more land than was conveyed to him by the patent from the government. Upon the question of boundary involved in the present suit, he was a competent witness. What then is the true boundary ? The rules which govern courts in the construction of grants, or in determining the effect to be given to the various calls in a-grant, have been frequently laid down by this, and other courts. It has been uniformly held that the grant must receive, if possible, the construction which is consistent with the intention of the grantor.

It is always said that the general rule is, that the most material and certain calls will control those which are less certain and material; “hence,” it is said, “a call for a natural object, as a river, a known stream, a spring, or even a marked tree, will control course and distance.” (9 Tex. Rep., 103; 19 Tex. Rep., 460.) “The lines of the survey as actually marked upon the ground, if they can be found and traced, will control course and distance. But this is where the actual survey can be found and identified as the same called for in the grant.

It is not meant that where the grant calls for certain known and established natural or artificial monuments and boundaries, these may be controlled by parol proof of a survey entirely, inconsistent, and repugnant to all the calls of the grant.” (Anderson v. Stamps, 19 Tex. R., 460.) In this case it is conclusively shown that the surveyor commenced at the point A, as shown by the diagram, and meandered the river to the point D, which was a large spring with a cypress tree growing in it. This cypress tree the surveyor marked as the upper corner of a survey to be subsequently made.

The surveyor then returned to the point A, and ran the line north 30 degrees cast, to the point B. He also ran the line from the point B to the point C. The surveyor testifies that he ran no line from C to the river, but that he called for the point D as the third corner of the survey. He called for the spring at D upon the course south 30 degrees west from C, whereas the spring at D is shown to be upon a course south 36 degrees west from the point 0.

Two of the witnesses, who were of the surveying party, testify that a line was actually run and.marked a part of the way from the point O towards the river, on the course south' 30 degrees west. Some of the witnesses also testify that there is a marked line from C to the river at the point E.

In this state of the case, the appellant claims that the survey should begin at A and proceed to B, from B to’ O, and from O to E, on the river, and thence to the place of beginning; or at the most, that the survey should proceed, after reaching the point 0, from C to F, which is assumed - to be about the point to which the third line of the survey was actually r.un and marked, and from F to the spring,' at D. It is obvious that the point D is the point which the surveyor intended for the third corner of the survey.

It is the most material, and therefore the controlling call hi the grant, and to that point the survey must be carried. It may be true that the surveyor ran an experimental line from C to E, expecting to find at E the spring and cypress tree. If he had done so, and had even marked the line, he might well, after finding that it did not reach the spring, call for the spring and the cypress tree which he had already marked, knowing that the call for the natural objects would control any error in the course and distance. But there was a conflict of evidence.

The surveyor said that no line was run from C towards the river. The verdict of the jury cannot therefore be set aside. The judgment of the court below is in accordance with the proper construction of the grant, and must be affirmed. It is ordered accordingly. Judgment affirmed.