Citations
- 77 Tex. 557
Full opinion text
HENRY, Associate Justice.
—This suit was brought by appellee to recover a tract of land alleged by him to be part of the R. P. Murray survey. The defendant claimed that the land in controversy was part of the Susannah Walker survey. The controversy was as to where the boundary line between the two surveys was situated.
The patent for the R. P. Murray survey was dated the 18th day of November, 1845. The Susannah Walker survey was patented on the 1st day of August, 1848, and includes a call for the R. P. Murray northwest corner, and also for its western line and southwest corner. The patent for the Murray survey calls for its northwest corner at “a post from which an elm marked X bears east 20 varas.”
The difficulty is to determine which one of two elms situated some distance apart on the same line east and west from each other is the true one.
The plaintiff (Haywood) claimed under one Thomas Boren, while the defendant claimed under one John D. Nelson. About the year 1857, when Boren owned the Murray survey and Nelson owned part of the adjoining or Walker survey, and thus had an interest in the situation of the dividing line between the two surveys, but after he (Nelson) had sold the land in controversy, both Boren and Nelson made statements that the western elm was the true corner. The statement of neither one was made in the other’s presence.
At the date of the trial both Boren and Nelson were dead, and the court permitted plaintiff to prove their declarations over the objections of defendant.
It is contended that the court erred in admitting the testimony, for the following reasons:
“ 1. The same is hearsay.
“2. It was not shown that said Boren and Nelson or either of them were at the time in a position to know the locality of the corner of said surveys nor their dividing line.
“ 3. It was shown that at the time the declarations were made by John D. Nelson he had sold the land in controversy to Morgan & Young.
“4. It is not shown that Morgan & Young, under whom defendant claims, nor either of them, were present.
“ 5. It is not shown that either defendant or his immediate or remote vendors were either present or had any notice thereof prior to their purchase.”
In the case of Linnev v. Wood, 66 Texas, 30, it is said by Chief Justice Willie: r