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Docket Number

No. 6940.

Attorney(S)

Denman Franklin, for appellant. — The court erred in refusing section 3 of special charge No. 1 asked by plaintiff, as follows: "The undisputed evidence of both plaintiff and defendants showed that the southeast corner of the Longavilla survey was not marked out or established on the ground at the time of the execution of the deed from Von Roy to J.W. Light, and therefore calls for said southeast line and southeast corner of said Longavilla survey in said deed from Von Roy to J.W. Light must give way to and be controlled by the calls for course and distance in said last mentioned deed to J.W. Light." McCown v. Hill, 26 Tex. 361; Browning's Administratrix v. Atkinson, 37 Tex. 658; Booth v. Strippleman, 26 Tex. 440 [ 26 Tex. 440]; Woods v. Robinson, 68 Tex. 656; Phillips v. Ayers, 45 Tex. 602; Davis v. Smith, 61 Tex. 18. Shook Vander Hoeven, for appellees. — 1. As in the case of all contracts, the intent of the parties to the deed, if it can by any possibility be gathered from the language employed, is to be sought by looking at the whole instrument, and none is to be rejected; and a deed will always be expounded so as to give effect to the intent of the parties. Swisher v. Grumbles, 18 Tex. 164, Mulford v. Le Franc, 26 Cal. 88; Salesbury v. Andrews, 19 Pick., 250, 252; Winnipiseogee Co. v. Perley, 46 N.H., 83; Wolfe v. Scarborough, 2 Ohio St. 361; Peyton v. Ayres, 2 Md. Ch., 64; Calkins v. Lavelle, 44 Vt. 230; Cocheco Co. v. Whittier. 10 N. H., 305; Bradley v. The W. A. G. S. P. Co., 13 Peters, 89; Brannan v. Mesick, 10 Cal. 95; Bent v. Rogers, 137 Mass. 192; Bryan v. Bradley, 16 Conn. 474; Litchfield v. Cudworth, 15 Pick., 23; Mills v. Cattin, 22 Vt. 98; Waterman v. Andrews, 14 R.I. 589; Frost v. Spaulding, 19 Pick., 445; Fuchs v. Treat, 41 Wis. 404. 2. It is a well settled rule of law that in the construction of deeds if there are two clauses which are inconsistent with each other the last must give way to the first. If, however, to the first part of the description is added that which modifies or controls what precedes it, the latter part is not to be rejected as repugnant, but the whole language of the deed is to be construed together if it any be in order to ascertain the true construction. And where all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction must prevail which is the most favorable to the grantee. Petty v. Boothe 19 Ala. 633; Tubbs v. Gatewood, 26 Ark. 128; Clough v. Bowman, 15 N.H. 504; Mills v. Catlin, 22 Vt. 98; Foy v. Neal, 2 Strobh., 156. 3. Extrinsic evidence is always admissible to explain the calls of a deed for the purposes of their application to the subject matter, and thus to give effect to the deed. And where the true location of the land in dispute has been ascertained, parol evidence is admissible to show the proper location of all the descriptive designations and calls of the deed, to the end of determining whether or not the land in dispute passed by it, and thus give effect to the true intent of the parties. Reamer v. Nesmith, 34 Cal. 624; Chase v. White, 41 Me. 228; Waterman v. Johnson, 13 Pick., 261; Tenant v. Hampleton, 3 Har. Johns., 233; Kip v. Norton, 12 Wend., 127. 4. In a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, the line which their vendor had caused to be run as the dividing line between the two tracts before he sold them will be recognized as the dividing line between the two parties deriving title from him. Under such circumstances, if either party has not the quantity of land called for by his title he must seek it from his vendor and not from the proprietor of the adjoining tract, who does not claim or possess beyond the line established by their common vendor. Bolton v. Lann, 16 Tex. 96; Tyler's Law of Boundaries, pp. 335, 338; Martindale Law of Conveyancing, p. 87, sec. 106.

Judges

GAINES, ASSOCIATE JUSTICE.

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Smart Summary

Case No. 6940 — Delivered April 28, 1891

Factual and Procedural Background

This is an appeal from Bexar County (trial before Hon. G. H. Noonan). The suit was a trespass-to-try-title action brought by the appellant to recover a strip of land (approximately 1,564 varas long and about 212 varas wide) that is part of the Francisco Longavilla survey No. 4. Both parties claimed title under a common grantor, F. Von Roy. The defendants derived title under a deed from Von Roy to J. W. Light dated December 14, 1874; the plaintiff derived title under a deed from Von Roy dated December 1, 1882.

The deed to Light described a 400-acre tract "more or less, taken out of the southeast corner of survey No. 4" and contained specific calls of courses and distances, including (1) a call beginning at the southeast corner of survey No. 4 and thence north 76 west 1,446 varas to the southwest boundary of the tract, and (2) a call thence north 14 east 1,564 varas (the north line), and (3) thence south 76 east 1,445 varas to a stake on the southeast line of survey No. 4, and back to the beginning.

It was admitted at trial that the common boundary between the Longavilla survey No. 4 and the adjoining Martinez survey No. 104 (the true east/southeast boundary of survey No. 4) existed as a line (designated on the map by k-h-i) but that, at the time Light bought, that boundary line and certain corners (northeast and southeast corners of survey No. 4) were not found or marked on the ground. Some years later, and before Von Roy's conveyance to the plaintiff, the dividing line between Nos. 4 and 104 was established by agreement.

A discrepancy in Light's deed became material once the true division line was established: the call south 76 east 1,445 varas reached only to a point short (about 212 varas) of the established east boundary. There was also a discrepancy in the corresponding first-line call: the distance between the agreed southwest point and the established southeast corner was 1,658 varas, not 1,446 varas as in the deed.

At trial the plaintiff requested instructions that would treat the deed calls for distance (course and distance) as controlling over the calls to an unmarked corner/line; the trial court refused the requested charges. The jury and court concluded the land in controversy passed under Light's deed. The judgment was appealed; the appellate court affirmed.

Legal Issues Presented

When a deed contains calls both to the distance (courses and distances from established points in a survey) and to an unmarked or "open" line or corner of an original survey not found on the ground, which call should control: the course-and-distance calls or the calls to the unmarked original corner/line?
Whether, under the facts here (where surveyors searched for but did not find the original survey's corners or east line, and the deed used the phrase "more or less" and "taken out of the southeast corner"), the grantor intended to convey to the established east boundary of the original survey rather than to strictly limit the conveyance to distances written in the deed.
Whether the trial court erred in refusing the plaintiff's requested charges that would resolve title in the plaintiff by treating the distance calls as controlling.

Arguments of the Parties

Appellant's Arguments

The court erred in refusing plaintiff's requested instruction (section 3 of special charge No. 1) that, because the southeast corner of the Longavilla survey was not marked on the ground at the time of Light's deed, the deed's calls for that corner and for the east line must give way to and be controlled by the calls for course and distance in Light's deed.
Appellant relied on authorities (cited in the brief) supporting the proposition that when an original survey corner or line is not established on the ground, a call for course and distance will control the call to that unmarked corner or line (citing cases such as McCown v. Hill and others).

Appellees' Arguments

Deeds must be construed by looking at the entire instrument to ascertain the intent of the parties; no part should be rejected if the intent can be gathered from the whole (authority citations included in the brief).
If two clauses in a deed are inconsistent, the doctrine regarding repugnancy and the proper construction (as discussed in the brief) must be applied: the instrument should be construed to give effect to the parties' intent, and where necessary the construction favoring the grantee should be adopted if doubt remains.
Extrinsic (parol) evidence is admissible to explain deed calls for the purpose of applying them to the subject matter and ascertaining whether disputed land passed thereby; once the true location of the land is ascertained, parol evidence may show the proper application of descriptive designations and calls in the deed.
Where adjoining tracts were sold by a common vendor and the vendor caused a dividing line to be run before conveyance, the line run and treated as the division by the vendor is to be recognized as between parties deriving title from that vendor; one lacking quantity by title must seek it from the vendor, not from an adjoining proprietor who does not claim beyond the established line.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion or counsel's briefs)	Application by the Court
McCown v. Hill, 26 Tex. 361	Cited by appellant for the proposition that where an original survey corner or line is unmarked, calls for course and distance may control calls to that unmarked corner or line.	Referenced in the opinion as an example of cases where a call for distance controlled an unmarked line, though the court found the present facts distinguished because corners were not actually established on the ground.
Browning's Administratrix v. Atkinson, 37 Tex. 658	Listed among authorities by appellant in support of the same general proposition regarding control of course-and-distance over unmarked survey calls.	Cited in appellant's brief; not specifically applied in the court's analysis beyond being listed as authority.
Booth v. Strippleman, 26 Tex. 440	Listed in appellant's brief among authorities on the control of deed calls.	Cited in appellant's brief; not specifically applied in the court's analysis beyond being listed as authority.
Woods v. Robinson, 68 Tex. 656	Listed by appellant among cases addressing control of deed calls.	Cited in appellant's brief; not expressly applied in the opinion's reasoning.
Phillips v. Ayers, 45 Tex. 602	Listed by appellant as authority concerning deed-call construction.	Cited in the brief; not separately analyzed by the court in its opinion.
Davis v. Smith, 61 Tex. 18	Listed by appellant among supporting authorities on deed-call disputes.	Included in appellant's citations; not specifically discussed in the court's opinion.
Swisher v. Grumbles, 18 Tex. 164	Cited in appellee's brief for the rule that a deed should be expounded so as to give effect to the intent of the parties and that the whole instrument must be considered.	Cited in appellee's brief as part of the general rule the court considered in construing the deed; the court applied the approach of seeking the parties' intent from the instrument and circumstances.
Mulford v. Le Franc, 26 Cal. 88; Salesbury v. Andrews, 19 Pick. 250; Winnipiseogee Co. v. Perley, 46 N.H. 83; Wolfe v. Scarborough, 2 Ohio St. 361; Peyton v. Ayres, 2 Md. Ch. 64; Calkins v. Lavelle, 44 Vt. 230; Cocheco Co. v. Whittier, 10 N.H. 305; Bradley v. The W. A. G. S. P. Co., 13 Peters 89; Brannan v. Mesick, 10 Cal. 95; Bent v. Rogers, 137 Mass. 192; Bryan v. Bradley, 16 Conn. 474; Litchfield v. Cudworth, 15 Pick. 23; Mills v. Catlin, 22 Vt. 98; Waterman v. Andrews, 14 R.I. 589; Frost v. Spaulding, 19 Pick. 445; Fuchs v. Treat, 41 Wis. 404	Appellee's brief grouped these cases to support the general proposition that deeds should be construed to effectuate the parties' intent, with many cited authorities from other jurisdictions.	Grouped and relied upon in appellee's brief for general principles on construction; the court invoked the general rule of construing the deed to effectuate the parties' intention but did not analyze each authority individually.
Petty v. Boothe, 19 Ala. 633; Tubbs v. Gatewood, 26 Ark. 128; Clough v. Bowman, 15 N.H. 504; Foy v. Neal, 2 Strobh. 156	Cited in appellee's brief for the rule that where two inconsistent clauses appear, the proper construction is to give effect to the deed as a whole and, if doubt remains, to adopt the construction most favorable to the grantee.	Cited in the brief as part of appellee's textual argument about construing potentially repugnant clauses; the court applied the principle of construing the instrument in light of the parties' apparent intent.
Reamer v. Nesmith, 34 Cal. 624; Chase v. White, 41 Me. 228; Waterman v. Johnson, 13 Pick. 261; Tenant v. Hampleton, 3 Har. Johns. 233; Kip v. Norton, 12 Wend. 127	Cited in appellee's brief for the proposition that extrinsic (parol) evidence is admissible to explain deed calls and to determine whether particular land passed by the deed.	Cited in the brief to support admissibility of explanatory parol evidence; the court considered extrinsic circumstances (surveyor's search, failure to find corners) in determining intent.
Bolton v. Lann, 16 Tex. 96	Cited by appellee for the proposition that where adjoining tracts were sold by a common vendor and the vendor caused a division line to be run, that line will be recognized as the dividing line between two parties deriving title from that vendor.	Included in appellee's brief to support the notion that established division lines run by a common vendor are controlling; the court noted the established division line between surveys Nos. 4 and 104 and treated it as the true boundary for purposes of construction.
Gerald v. Freeman, 68 Tex. 201	Identified in the opinion as an example of a case where a call for distance controlled a call for an unmarked line when the call was taken from the field notes of an actual survey and a survey had been made establishing corners.	The court cited Gerald v. Freeman as a comparator for the general rule, then distinguished the present facts because in the present case corners called for were not actually established on the ground when the survey was made.
Bowles v. Brice, 66 Tex. 724	Cited for the rule that if evidence was erroneously admitted but the same result would have obtained without it, the error is not reversible (harmless error doctrine).	The court applied this principle to hold that even if the admission of witness Beck's testimony had been erroneous, the plaintiff was not prejudiced because the undisputed evidence required judgment for the defendants.

Court's Reasoning and Analysis

The court began with established descriptive principles: ordinarily, where a deed's calls are taken from the field notes of an actual survey and the surveyor on the ground establishes corners and lines consistent with the field notes, a call for distance (course and distance) will control a call for an unmarked line. The court referenced Gerald v. Freeman and McCown v. Hill as representative authorities for that general proposition.

However, the court found the present facts distinguishable from those precedents. The testimony (principally that of defendant Light, which the court found uncontradicted) showed that when Light and the deputy county surveyor (T. C. Nelson) went upon the ground they searched for, but did not find, the northeast and southeast corners or the east/southeast line of the Longavilla survey. The surveyor did not mark or establish corners at the points that would have corresponded to the east boundary called for in the deed; instead, having run the lines and failed to find the original corners, they set a stone (marked X) for Light's northwest corner and drove a stake for the southwest corner of Light's tract, but they did not set the northeast and southeast corners of Light's tract because the original corners/line of the Longavilla survey could not be found.

The court framed the central question as one of intention: given that the parties searched for but could not find the original survey's east line and corners, did the parties intend (a) that the deed convey a 400-acre tract precisely as measured by the distances in the deed (so that the east line would be where the distances placed it), or (b) that the tract be taken out of the southeast corner of the Longavilla survey and therefore extend to the true east line of the original survey when that line was later established?

Applying principles of construction, the court concluded the parties intended the latter: the use of the phrase "400 acres, more or less," and the language "taken out of the southeast corner of survey No. 4," indicated awareness that when the original east line was located there might be a deficiency or an excess in the acreage, and the parties intended the tract to extend to the east boundary of the Longavilla survey. The court reasoned that if the distances alone were to govern, the words "more or less" would be meaningless, but Light testified that he insisted on having "more or less" inserted. The court therefore held that the calls for the east line and southeast corner of the original survey should not be disregarded in favor of the literal distances called for in the deed.

Because the court determined that the deed's intent was to convey the land up to the established east boundary of the original survey, it concluded that the land in controversy passed by the deed from Von Roy to Light. Having reached that dispositive conclusion on undisputed evidence, the court held that any potential error in admitting testimony (witness Beck) was harmless, citing Bowles v. Brice.

Holding and Implications

Holding: The appellate court affirmed the judgment below. The court held that, under the undisputed evidence, the deed from F. Von Roy to J. W. Light conveyed the land in controversy (i.e., the disputed strip) up to the true east boundary of the Longavilla survey, and therefore the plaintiff was not entitled to recovery.

Implications:

Direct effect on the parties: Title to the disputed strip was adjudged to have passed to the defendants under Light's deed; the trial court's judgment for the defendants was affirmed.
Scope of legal rule applied: The court reiterated that while course-and-distance calls often control unmarked survey calls when an actual survey has established corners and lines consistent with those distances, that rule does not apply when the surveyor failed to find or establish the original survey's corners or line and the deed language (including "more or less" and "taken out of the southeast corner") indicates an intent to reach the original survey boundary.
Broader precedent: The opinion resolved the dispute on the facts and applied existing principles of deed construction and parol evidence; it did not announce a novel rule beyond applying established canons of construction and distinguishing prior cases on their facts.

Disposition: Affirmed. (Delivered April 28, 1891.)

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C. C. BAKER v. J. W. LIGHT ET AL.

1. Calls in Survey. — A call the a line or point within a survey for a given distance to the boundary line of the tract of which the survey is a part will extend to the line so called for although at a greater distance than called for, and notwithstanding such line called the is an open line, or not actually run and marked upon the ground.

2. Unmarked Line as a Call. — Ordinarily a call for course and distance will control a call for an unmarked line, especially when the circumstances tend to show that the surveyor was unacquainted with the true locality of the line and called for it by mistake.

3. More or Less. — The words more or less may indicate the intention of the parties, as when its presence would be meaningless except upon the one construction. See the facts.

4. Actual Survey. — If at the distance called for the surveyor establish a line or corners, while calling for an open line not reached, the actual corners and line established will control and the call for the line be disregarded.

5. Taken out of Southwest Corner. — The words " taken out of the southeast corner of survey No. 4" show that it was the intention of the parties that the land should extend to the east as well as the south line of the original survey.

GAINES, ASSOCIATE JUSTICE.

This was an action of trespass to try title brought by the appellant to recover of appellees a strip of land 1564 varas long and about 212 wide, a part of a survey in Bexar County known as the Francisco Longavilla survey No. 4.

The following is a map of the Longavilla survey and its subsurveys, together with the Martinez, which joins it on the east:

The letters f, g, h, and i designate the corners of the land in controversy. Both parties claim under one F. Von Roy — the defendants under a deed from him to J.W. Light dated December 14, 1874, and the plaintiff under a deed from the same grantor dated December 1, 1882. The latter deed purports to convey the strip in controversy by a description in which there is no ambiguity. The land conveyed to J.W. Light is described in his conveyance as follows:

"Being 400 acres, more or less, taken out of the southeast corner of survey No. 4 in the name of Francisco Longavilla. Said 400-acre tract is more particularly described and bounded as follows: Beginning at a stake set for the southeast corner of said survey No. 4; thence north 76 west 1446 varas to a stake set on the southwest boundary line of said survey No. 4 for the southwest corner of this tract; thence north 14 east 1564 varas to a stone set in the ground marked X for the northwest corner of this tract, from which a mesquite 15 inches in diameter bears north 28 1/2 east 12 varas, do. 12 inches in diameter bears north 38 1/2 east 25 varas, do. 12 inches diameter bears south 55 1/2 east 18 varas; thence south 76 east 1445 varas to a stake set on the southeast line of survey No. 4 for the northeast corner of this tract; thence south 14 west 1564 varas to the place of beginning, according to a survey made by T.C. Nelson, deputy county surveyor, November 24, 1874."

It was admitted that the Longavilla survey No. 4 and the Martinez survey No. 104 "join each other and have a common boundary line, marked on the map k h i, and that said boundary line is the true east, or southeast boundary line of survey No. 4, * * * and was not found on the ground at the time Light bought." It was also admitted that at that time the northeast and southwest; corners of survey No. 4 were not marked on the ground and could not be identified, but that since that time and before Von Roy conveyed to the plaintiff the dividing line between surveys No. 4 and No. 104 was established by agreement.

The controversy grew out of an ambiguity in the description of the land in the deed from Von Roy to Light. This ambiguity was disclosed when the boundary line between the Longavilla and the Martinez surveys was established. The northwest and southwest corners of defendant's tract are well established and there is no dispute as to their location. The third call in the deed is for the line which runs in an eastern direction from the northwest corner, and is as follows: "Thence south 76 cast 1445 varas to a stake on the southeast line of survey No. 4." This distance called for reaches only to the point g shown upon the map, and is not sufficient by 212 varas to reach the east boundary of the survey. There is a corresponding discrepancy in the calls of the first line, which are as follows: "Beginning at a stake set for the southeast corner of survey No. 4, thence north 76 west 1446 varas to a stake set on the southwest boundary line of said survey No. 104." Between the latter point, about the location of which there is no dispute, and the southeast corner of the survey as established the distance is 1658 varas instead of 1446 as called for.

The plaintiff claims that the call in the deed for distance should prevail over the calls for southeast corner and the east line of the original survey, while defendants claim that the latter should control. If the construction claimed by plaintiff be correct, then he had title to the land in dispute.

The defendant Light testified as follows: "Just before the execution of the deed from Von Roy to me, in evidence, I told General Young, who was agent for Von Roy, that I wanted the land surveyed before the deed was made and the purchase completed. He thereupon sent out with me for the purpose of surveying out my land T.C. Nelson, deputy county surveyor at that time, who was paid for his services by Von Roy. We began at a point marked a on the map in evidence, and which is a corner of an adjoining survey, and ran in a southern direction the course and distance called for in the original field notes of survey No. 4 to find its true corner. When we ran out the course and distance we reached the point b, or very nearly that point, where we could find no corner. We then ran from there according to course and distance called for in the original field notes of survey No. 4 as its south or southwestern line, for the purpose of finding the southeast corner of said survey No. 4. We ran this line from the point b as indicated on the map, and on the route passed the point marked c on the map, which represents the southwest corner of my tract of land. As we were running the line from the point b, as aforesaid, when we had run one-half the distance called for in the original field notes of said survey No. 4 as its south or southwest line, I told the surveyor to drive down a stake, so that if by running out the balance of the distance called for as the south or southwest line of survey No. 4 we failed to find the southeast corner of survey No. 4 we could return to said stake and make it the southwest corner of my land. The surveyor drove down the stake at the point c on said map indicated, which is 1445 varas distant from the point b on said map, the whole length of said south or southwest line of survey No. 4 being 2890 varas according to the calls in the original field notes of said survey. We then ran from the point c, where we had driven down the stake (continuing the course called for in said field notes of survey No. 4), 1445 varas to find the southeast corner of survey No. 4 aforesaid. When we had run out the course and distance we made a careful search for the southeast corner of survey No. aforesaid, but could not find same nor any indication of its true locality. As we were running the said south or southwest line of survey No. 4 as aforesaid we found along the route we ran at various places old marked line trees. Not being able to find southeast corner of survey No. 4 we returned to the beginning point, marked a on the map; from thence we ran the course and distance called for in the original field notes of survey No. 4 to find its northwest corner, which brought us to the point e on the map; thence we ran course called for in original field notes to survey No. 4 the distance called for therein, to-wit, 2890 varas, for the purpose of finding the northeast corner of survey No. 4. At the point thus reached we made a careful search for northeast corner of survey No. 4, but could not find same nor any indication thereof. We then made a careful search for the east or southeast line of survey of No. 4, but could find no trace of same. In making the search we were brought back to the locality where we had searched for the southeast corner of survey No. 4, as above stated.

"Not being able to find the northeast or southeast corners nor the east line of same, as above stated, we then returned to point c shown on the map, where we had driven down the stake as aforesaid, from which point we ran as called for in the deed in evidence from Von Roy to me N. 14 E. 1564 varas, and there we set in the ground a stone and marked it X to indicate the northwest corner of the land I was buying. This stone we set at the point d on the map in evidence, and it is still there with the bearing trees which we then marked and as called for in my deed from Von Roy aforesaid, and same has always been claimed by me as my northwest corner. Front the survey made of the line c d as aforesaid and the location of the southwest corner of my land at the stake set as aforesaid at the point c on the map as aforesaid, and the location of the northwest corner of the survey at the stone marked X set in the ground at the point d on the map as aforesaid, the surveyor said he could write the field notes.

"We did not run out the north line of my land nor the east line, nor did we set a stake for the northeast and southeast corners of my land as called for in the deed from Von Roy to me in evidence. No such stakes were ever set. We then returned home, and from the survey made as aforesaid the surveyor drew the field notes from which my deed was written. I had the words "more or less." put into the deed, and would not accept it until said words were put in.

"The division line between surveys Nos. 4 and 104 indicated by the letters k h i on the map in evidence runs through a section of country with some large live oak trees, and there are no line marks thereon indicating that the division line of said two surveys was marked on the ground; at least we did not find them. Some years after I bought, and before Baker bought from Von Roy, John James, who was a surveyor and the owner of survey No. 4, in the name of Martinez aforesaid, surveyed out survey 104 and established the division line k h i on map, which has ever since been agreed upon by all to be the true division line between surveys Nos. 4 and 104. If you begin at the stone marked X, at point d on map, and run the course called for in the deed from Von Roy to me for my north line 1445 varas, the distance called for therein, you will not reach the line k h i on the map, which is now admitted to be the true boundary between surveys 4 and 104, but you would stop before you reached said east line. I do not know how far it is from the point g to the division line k h i. If my land were measured out beginning at the point d on the map at the stone marked X and run thence by the courses and distances called for in my field notes in the deed from Von Roy to me, disregarding the call for the east line and southeast corner of survey No. 4, there would be left a rectangular piece of land (indicated by the letters f g h i on the map) between my land thus run out and the true boundary line k h i on the map, and I think it would contain about twenty-five acres. Am not positive as to the number of acres, as I never saw it measured."

This testimony was not contradicted in any particular.

The counsel for plaintiff asked the court to charge the jury in effect that since the undisputed evidence shows that at the date of defendant's deed the southeast line and the southeast corner of the Longavilla survey was not marked upon the ground, the calls in the deed for that line and that corner must give way to the calls for distance. They also requested a charge to the effect that the jury should find a verdict for the plaintiff if the land in controversy was not embraced in the following boundaries: Beginning at the stone called for in Light's deed for his northwest corner and running thence south 76 cast 1445 varas; thence south 14 west 1564 varas; thence north 76 west 1445 varas, and thence north 14 east 1554 varas to the beginning. The refusal of each of these instructions is assigned as error.

We are of the opinion that the charges were properly refused. Ordinarily when there is proof that the calls in a deed are taken from the field notes of an actual survey, a call for distance will control a call for an unmarked line, especially when the circumstances tend to show that the surveyor was unacquainted with the true locality of the line and called for it by mistake. Such were the cases of Gerald v. Freeman, 68 Tex. 201, and of McCown v. Hill, 26 Tex. 361 [ 26 Tex. 361]. In a case of two inconsistent calls of such a character one of them is usually the result of mistake; and when it can be ascertained which is the mistaken call it will be rejected and the other adopted as that expressive of the true intention of the parties.] If in the present case, when Light went upon the ground with the surveyor and caused the survey to be made, they had established corners at the points g and f upon the foregoing map as the northeast and southeast corners of the land to be conveyed, then there can be no question but that the calls for the east line and the southeast corner of the original survey should be rejected. That call must be followed which corresponds with the survey as actually made. But the testimony shows that Light and the surveyor did not establish corners at the points indicated. It tends very strongly to prove that the reason why this was not done was because they failed to find any evidence of the east line and corners of the original survey at the distance called for in its field notes. No corner having been marked or otherwise fixed at the point marked f when the survey was made, though the surveyor ran to that point, the question is, what did the parties to the deed intend? Was it their purpose that the deed should convey all the land lying between the north and south lines as extended eastward to the line and corner of the original survey, or did they intend the east line of the land conveyed should be where the distance called for would place it? We think the intention was to convey the land up to the east line of the original survey. In the light of the circumstance that in surveying the land the east line and corners of the Longavilla survey had been searched for and had not been found, the use of the words "more or less" following the number of acres stated in the description indicates that the parties to the conveyance intended to convey all the land in the southeast corner of the grantee's tract, and that they were aware that when the east line was established there might be either a deficiency or excess in the quantity. If the distances called for in the deed were to control, the number of acres conveyed were fixed, and the words "more or less" would be meaningless. The defendant J.W. Light, testified that he insisted upon having the words inserted in the conveyance, and they are presumed to have been inserted for some purpose. Besides, the language "four hundred acres, more or less, taken out of the southeast corner of survey No. 4," shows that it was the intention that the land should extend to the east as well as the south line of the original survey.

In view of the undisputed evidence in the case we are of the opinion that the land in controversy passed by the deed from Von Roy to Light. It follows from this conclusion that it is unimportant whether or not the court erred in admitting the testimony of the witness Beck. If error, the plaintiff was not prejudiced by it, because with or without this testimony the only proper result of the trial was a judgment for the defendants. Bowles v. Brice, 66 Tex. 724.

There is no error in the proceedings which requires a reversal of the judgment, and it is therefore affirmed.

Affirmed.

Delivered April 28, 1891.

BAKER v. LIGHT