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(238 S.W.)

when the contract was made with Schnell, and the evidence does not show with any degree of certainty its value at that time. Ladd v. Pleasants, 39 Tex. 416, the court said:

In

would require him to have tendered the money "If he wanted this land [the excess] equity at the price paid, or at least at a fair value, for the remainder of the land."

the land had been sold to Lee & Scott prior [10] As to the contention that a portion of to the sale to the original trustees, the anthese lands were not conveyed to the Capitol Company. They were patented to Taylor. The agreed statement of facts states that, as the leagues were patented to Taylor, he con

swer is that the record does not show that

debts, evidenced by its debentures, and thereafter the said trustees conveyed the legal title to the remainder thereof to the Capitol Company. The Capitol Company sold portions of the land conveyed to it, and on the 14th day of June, 1915, deeded the unsold portion thereof to the appellants, in trust, for the purposes of winding up the affairs of the company, then in process of liquidation, and which has since been dissolved. The appellants paid nothing for the land. They have no beneficial interest therein. They hold the legal title for the purpose of distributing the proceeds of the land among the stockholders of the former corporation, the Capitol Company. That the deed to them constitutes a common-law trust does not alter the essential facts as here stated. Such being the case, the present trustees, appellants herein, are, for the purposes of this suit, the Capitol Com-veyed them to the original trustees. The pany, and have in their possession more transaction between Taylor and Lee & than enough land to satisfy the demands of Scott was an exchange of lands. For aught the state, namely, nearly 600,000 acres. that appears to the contrary, Taylor may Company for the purpose of making this exhave reacquired these lands from the Capitol change, and the Capitol Company may have been the beneficiary of such transaction. At lands to Lee & Scott in 1888 is not suffileast the fact that Taylor conveyed these cient to overcome the express agreement of

The

state, by bringing this suit and by its plead ings herein, having ratified the sales previously made, is entitled to have the excess set apart to it in a partition of the land now in the hands of the appellants. It was not necessary to make the purchasers of other portions of the 3,000,000 acres parties to this suit. Campbell v. Campbell (Tex. Civ. App.) 145 S. W. 638; Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206; Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S. W. 980; Hanrick v. Gurley, 93 Tex. 459, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Peak v. Swindle, 68 Tex. 242, 4 S. W. 478; Moonshine Co. v. Dunman, 51 Tex. Civ. App. 159, 111 S. W. 161; Broom v. Pearson (Tex. Civ. App.) 180 S. W. 895. [9] We think it immaterial that there has been a substantial change in the stockholders of the Capitol Company since it was first organized. The corporation, and not its stockholders, was the owner of the land, and, disregarding mere matters of form as equity does, the corporation, in the person of the present trustees, the appellants herein, is still the owner of the land which the trial court decreed should be partitioned in this suit.

Appellants' fifteenth assignment of error is:

"The district court erred in decreeing a partition of the land in Schedule X, without first fixing the price or value of the lands covered by the contract for the building of the State Capitol, as contemplated in said contract, and giving the owners of the land described in Schedule X an opportunity to prevent a partition of same by paying to the state the price or value of the excess thus fixed by decree of court."

A sufficient reply to this is the appellants did not offer to pay for the excess, or indicate in their pleadings a willingness to do so. No money valuation was fixed upon the land

the parties that all of the leagues were conveyed by Taylor to the trustees of the company as the same were patented. For aught that appears to the contrary, Lee & Scott may have obtained a deed to these lands from the Capitol Company, and for the purpose of strengthening their record title obtained a deed from Taylor, the patentee,

also.

mission of the Wiley field book, for the rea[11] Appellants assign error as to the adshown that Wiley was one of the surveyors son that the same is hearsay, it having been who was working for Munson, and that he made the entries in his field book only by the hearsay testimony of his wife, which was objected to by appellants. The trial court in its qualification of the bill of exceptions on these matters states that he did not consider the hearsay declarations of Wiley's wife as to that matter, but that he admitted the field book upon other evidence relating thereord that such other evidence clearly warWe think that it appears from the recranted the court in admitting this field book in evidence. The length of this opinion precludes a discussion of such evidence.

to.

[12] We overrule appellants' contention that the report of Mabry was hearsay, and therefore inadmissible. Mabry made his survey as the agent of both parties. He was county surveyor of Oldham county. His report was filed in the Land Office, and was an archive thereof. His original report, as well as a certified copy thereof was read in evidence. R. S. art. 3694; Denton v. English (Tex. Civ. App.) 171 S. W. 250.

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Finding no error of record, the judgment, with the north lines and corners of the surof the trial court, in so far as it relates to veys to the south. the partition of the lands described in Exhibit X of appellee's petition, is affirmed.

Findings of Fact in No. 36184 (District
Court No.).

(1) The evidence does not show that surveys Nos. 221, 222, 223, and 224, south of the alleged vacancy, and surveys Nos. 225, 226, 227 and 228 on the north thereof, were made by the same surveyor.

(2) If they were, such surveyor did not run out on the ground and connect the south corners and lines of the surveys to the north

(3) The surveys south of the alleged vacancy were run out from connections with prior surveys to the south, and the surveys north thereof were run from prior surveys to the north.

(4) The northeast and northwest corners of Nos. 221, the northwest and the southwest corners of 222, the southeast and southwest corners of 223, and the northeast and northwest corners of 217 are found and identified on the ground by the objects called for in their field notes, and are as indicated by the circles on the following map:

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(238 S.W.)

(5) The south corners and lines of 225, 226, | found and identified, and no objects being 227, and 228 call to be identical with the called for at its northeast corner, this corner north lines and corners of 221, 222, 223, and is established by running east the course and 224. distance called for. This corner, which is also the northwest corner of 226, should be treated as an established corner.

Upon the assumption of an actual survey of 225, by the same surveyor who ran out 223 and 224, the natural thing for him to have done, in order to have connected 225 with his previous work, would have been to begin 225 at the northeast corner of 224, or the

(6) None of the south corners or lines of the surveys north of the alleged vacancy have been found or identified on the ground. (7) The beginning corner of No. 225 is at the southeast corner of No. 61, in block B-58, a prior survey. The northwest corner of No. 225, the northeast corner of 226, the northwest and northeast corners of 227, and ⚫ the beginning corner of No. 228, at the south-northwest corner of 223. Instead of doing so, west corner of No. 1, in block 44, a prior survey, and the southeast corner of No. 228 are found and identified on the ground as indicated by the circles on the foregoing map.

(8) If the surveys to the north be run from their known corners, according to the courses and distances called for in their field notes, the corresponding corners in the surveys to the south will not be reached, but the surveys to the north, when thus run out, will be located as shown on said map.

(9) The calls in the surveys to the north for the lines and corners of the surveys to the south are supposititious calls, and were made upon a mistaken belief as to the location of such corners.

Opinion.

225 is tied to northern surveys previously made, by calling to begin at the southeast corner of No. 61, which is found and identified on the ground. The calls from this beginning corner are thence south and east, no objects being called for; the call being "to a point." As the method employed throughout the 738 capitol league surveys to identify corners actually made was to make mounds and dig pits, the surveys being upon a treeless plain, the absence of calls for such mounds and pits is, to say the least, some evidence that such lines were not run.

The second call is east 3,285 varas to a point 1,359 varas south of the northwest corner of 223. Neither 223 nor 224 is otherwise mentioned in these field notes. To reach this point the line must be extended 586 varas, which is a glaring mistake to make in measuring a line intended to be 3,285 varas.

The next call is north to a point for the northeast corner of 225. If, the surveyor ran this line from a point on the west line of 223, he conflicted with No. 226 to the extent of 586 varas, or 519 acres.

The trial court found that a vacancy existed as alleged by the state and as shown by the map in our statement of facts. Appellants' attack upon this judgment is based upon the assumption that the surveys to the north and those to the south of the alleged vacancy were made by the same surveyor, at about the same time, and upon the presumption that such surveyor actually ran these surveys upon the ground, and connect-person, and calling for them to adjoin each ed them as called for in his field notes.

[13] The presumption of an actual survey is based upon the presumption that public officers always do their duty. This, like all rebuttable presumptions, obtains in the absence of evidence to the contrary, and not against such evidence. That a survey was not made upon the ground may be shown by circumstances. We think the circumstances in the instant case are sufficient to overcome the presumption of an actual survey of the south lines of the leagues north of the alleged vacancy, except the south line of survey No. 228, which is identified by objects called for in its field notes, and found upon the ground.

It is not questioned by either party hereto that both the northern lines of the southern tier of surveys and the north lines of the northern tier of surveys were actually surveyed on the ground, and that they are located by their corners, found and identified as indicated by the map in our statement of facts. The northwest corner of 225 being

The presumption that a surveyor, making two surveys at the same time for the same

other, would not place them on the ground so as to conflict with each other, is so strong that it would take absolutely conclusive evidence that he did so to establish such fact.

Assuming that he made a corner on the west line of No. 223 as called for in his field notes, to run the next line to the corner which he made for the northeast corner of 225 and the northwest corner of 226, instead of running north as called for in his field notes, he must have run about N. 16° W. In this event he would still be in conflict with 226 to the extent of about 250 acres.

Survey No. 228 does not call for 221. It is evident by its call for the northeast corner of 227 at the proper course and distance that the south lines of 227 and 226 were intended to be a projection west of the south line of 228, which is found and identified by the objects called for in its field notes, and is thus located as shown by the map herein.

No. 227 calls to begin at the northeast corner of 226, and to run thence north 5,000 varas to its northeast corner, found and

identified. If the surveyor ran from the northeast corner of 226 to the northeast corner of 227, instead of running north, he ran about N. 16° W. The same is true as to the connecting lines between the other known corners on the north line of the northern tier and the known corners on the northern lines of the southern tier. This could have happened only by his misreading the face of his compass 16 degrees, not as to one run only, but as to all of the runs necessary to be made in a line 5,000 varas long, and not as to one line only, but as to three such lines. Such mistakes are unthinkable.

If survey No. 227 was so run upon the ground, it conflicted with 228, made by the same surveyor at the same time for the same party. To so hold we would have to disregard the calls for distance, course, quantity, and configuration. The same is true as to the other surveys to the north.

that he did all of the work in the field in surveying these more than 700 leagues, or that in fact he did any of it. The Commissioner who represented the state in making these surveys stated in his report that there were two surveyors, who worked from 5% to 30 miles apart.

Believing as we do that the trial court did not err in its finding of facts, nor in its application of the law to the same, we affirm the judgment herein.

Findings of Fact (District Court No. 36185). The map on opposite page will aid in understanding this case:

The alleged vacancy lies north of surveys Nos. 336, 337, 338, and 339, and south of 274, 275, and 276. The corners marked with a circle are found and identified, and their location is not in dispute herein. The trial court found, in substance, as follows:

(1) Surveys Nos. 337, 338, 339, 340, 372, and 373 were made by J. T. Munson, or by some one working for him, as were also the original surveys Nos. 274, 275, 276, 333, 336,

and 335.

[14, 15] From the foregoing facts, we think but one deduction can reasonably be drawn, and that is that the surveyor who made surveys Nos. 225, 226, and 227 did not run their southern lines, but that he called for the corners of Nos. 221, 222, and 223, and the (2) It was found that Munson's surveys of west line of 223 upon an erroneous supposi- Nos. 274, 275, 276, 333, and 335 were in contion as to the location of such line and cor-flict with prior surveys. For the purpose of ners. A supposititious call, made upon an er- taking these surveys out of such conflict and roneous belief as to the location of the ob- of reducing the excess in such surveys, they ject called for, will not prevail over a call were, by agreement of the contractor and for course and distance, whether the survey the state, resurveyed by W. S. Mabry, and was actually made upon the ground, or the the patents were issued on Mabry's survey, same was an office survey. Railway Co. v. and accepted by the contractor. Thompson, 65 Tex. 192; Adams v. Crenshaw, 74 Tex. 111, 11 S. W. 1083; Holland V. Thompson, 12 Tex. Civ. App. 471, 35 S. W. 19; Sellman v. Sellman (Tex. Civ. App.) 73 S. W. 48; Lafferty v. Stevenson (Tex. Civ. App.) 135 S. W. 218-220.

(3) Mabry corrected the field notes of 336 and 335, and put in the new surveys Nos. 333 and 3451⁄2.

(4) No object is called for in the field notes of either Munson's or Mabry's survey at the

northeast corner of 273, nor at either of the south corners of 274, 275, nor at the southwest corner of 276. Both Munson and Mabry call for the southeast corner of 276 to be at the southwest corner of 333, and for the monument found and identified at that corner. In connecting the field notes of 333 so as to take it out of conflict with prior surveys to the west,, Mabry did not change the southwest corner of the northwest corner thereof as made by Munson, both of which corners are found and identified by objects called for in the field notes of 333.

[16] The foregoing proposition may be substantially stated thus: A call in field notes inserted by mistake will be rejected, and the survey will be constructed as though such mistaken call had not been inserted. State v. Sulflow, 60 Tex. Civ. App. 615, 128 S. W. 654. Or, as applicable to the facts of the instant case, we might deduce from the decision in Huff v. Crawford, 89 Tex. 216-220, 34 S. W. 606, this statement: The surveyor who made surveys Nos. 225, 226, and 227 did not, by mistake, locate the southern corners of such surveys at places different from (5) No objects are called for at the northwhere he intended to locate them. He in- east corner of 339, nor at either of the northtended to and did locate them at the north-ern corners of 338, 337, and 336, nor at the ern corners of the surveys to the south, as he supposed them to be located on the ground. His mistake was as to their true locality.

[17] We think it highly probable that the surveys to the south of the vacancy and those to the north were made by different surveyors. It is true that the contract for surveying the capitol leagues was let to J. T. Munson, but it does not follow from this

southeast corner of 336.

(6) None of the corners mentioned in the next two preceding paragraphs hereof were made upon the ground, except the southwest corner of 333, and none of the lines connecting these corners were run upon the ground by either Munson or Mabry.

(7) Mabry's field notes of 276 call for it to begin at the southwest corner of 333, and to run thence with the lines of the prior sur

967

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vey on the north and west until a point is reached on the south line of No. 100. The calls from thence are south 4,273 varas to a point on the north line of 337; thence east 5,956 varas to the northeast corner of 336; thence south 2,000 varas to a point; thence east 1,948 varas; thence north 2,000 varas to a point in the south line of 333; thence west 1,168 varas to the beginning.

His field notes of 275 call to begin at the southwest corner of No. 100, and running thence with prior surveys to a point on the south line of survey 89; thence south 2,272 to a point on the north line of 338; thence east 5,507 varas to a point in the north line of 337; thence north 4,273 varas to a point

in the south line of No. 100; thence west 794 varas to the beginning.

His field notes for 274 call to begin at a point the northeast corner of 275, which is on the west line of No. 99; thence north, west, and south with prior surveys to a point on the south line of No. 89; thence south 3,302 varas to a point the southeast corner of 273; thence east 2,643 varas, crossing Trujillo and Mujares creeks, to a stake in the west line of No. 93; thence with the prior surveys to the beginning.

(8) No object is called for in the field notes of 3332 nor 3452, except at the southwest corner of 3331⁄2, which is found and identified on the ground, by the northwest corner of

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