mortgagee to have the repairs made. That evidence was as follows: "It was also in evidence that the defendant in error [mortgagee] saw the buggy and rode in it frequently, and had knowledge of its being repaired by plaintiff in error, at least once when he was present and it was run into the carriage company's place of business to be repaired by it." WILSON v. GIRAUD. (No. 7202.) (Court of Civil Appeals of Texas. Galveston. Nov. 10, 1916. Rehearing Denied March 22, 1917. Dissenting Opinion, April 20, 1917. Second Rehearing Denied Oct. 6, 1921.) 1. Trespass to try title 38(1)—Plaintiff, claiming under state's award of unappropri. ated land, has burden of proving it was vacant. And even if that case is strong enough to be accepted, which we do not say, it would not rule the instant case. For if appellant relies, as it does, on a particular term of the mortgage, it would be charged with notice of all the terms of the mortgage. And looking to the terms of the mortgage, as appellant would be required to do, it is tiff. found that the chattel mortgage stipulated as follows: In an action in trespass to try title, where plaintiff claimed by award from the state of unappropriated land by virtue of a certificate subsequent to patents by the state under ing that such land was vacant was upon plainwhich defendant claimed, the burden of prov 2. Trespass to try title 41(1)-Evidence held to make prima facie case for defendant. "And to secure any and all other sums of In an action in trespass to try title, in money which I now owe or may owe said which the defendant filed a cross-bill, undiscompany for gasoline, oils, tires, parts, acces-puted facts in evidence held to make a prima sories, material, or labor furnished for said facie case for the defendant. automobile prior to the payment in full of the 3. Evidence 460(6)—Title must be identiabove-described note." fied by description in state patent. Appellant would thus be informed that the mortgagee, itself operating a repair shop and garage, had already contracted to make the repairs necessary for purposes within the intention of the mortgage, and had secured the indebtedness therefor by a lien on the automobile. Also the automobile, by express terms, was not to be removed from the county. The mortgagee having already expressly contracted to make the repairs necessary for the purposes within the intention of the mortgage, and having stipulated against the removal of the automobile without its consent to any other place or county, the appellant, having constructive notice of such terms of agreement, may not reasonably have presumed or inferred that the mortgagor had any consent from the mortgagee to take the automobile, in violation of the statute and the agreement, to another county and have appellant or any other third person there make the repairs and create a mechanic's lien in precedence and in priority of the chattel mortgage lien. It is laid down in 5 Elliott on contracts, § 4838, that "An agreement which will defeat the purpose of the transaction should not be inferred or implied against a mortgage without very cogent evidence." The authorities cited by appellant are not applicable and are entirely dissimilar to the instant case. There is no pretense in the facts that the mortgagee or holder of the indebtedness, by any personal conduct or representations, was estopped from asserting priority of the chattel mortgage lien, and therefore this phase is not further discussed. The judgment is affirmed. Title to land patented by the state must be identified by the description in the patent or in the award, and the title to such land so described cannot be questioned by proof that the ginning the survey at a point different from surveyor who located it made a mistake in beone at which he should, or intended to, have begun it. 4. Trespass to try title 41 (3)-Undisputed evidence held to show defendant's title to land described in cross-bill. In a suit in trespass to try title, held, that the undisputed evidence showed defendant had title to the land described in his cross-bill, and that there was no evidence to support the title claimed by plaintiff to any portion thereof. 5. Trespass to try title 41(1)-Evidence held not to support judgment for plaintiff. In an action in trespass to try title, held, that there was no evidence to support the judgment in favor of plaintiff, but that the undisputed evidence showed title in defendant. On Motion for Rehearing. 6. Evidence 387(4)-Unambiguous location calls cannot be varied by parol to create an ambiguity. a Unambiguous location calls by which survey was located and patented cannot be varied by parol testimony, in a suit in trespass to try title, for the purpose of creating an ambiguity in the surveyor's calls. (234 S. W.) Appeal from District Court, Harris County: judged to plaintiff. From the judgment for Chas. E. Ashe, Judge. Suit by E. A. Giraud against J. W. Wilson, in trespass to try title. Judgment for defendant for land sued for in the cross-bill, except such as was adjudged to plaintiff, and from the judgment for plaintiff, the defendant appeals. Order denying rehearing set aside, and questions certified to the Supreme Court. Questions answered. 231 S. W. 1074. Rehearing denied.. Reversed and rendered for the defendant. E. P. & Otis K. Hamblen, of Houston, for appellant. Baker, Botts, Parker & Garwood, of Houston, for appellee. plaintiff, defendant Wilson has appealed. Appellant's main contention, which if sustained, will require a reversal of the judgment for appellee and the rendition of a judgment for appellant for the land claimed by him, is that the trial court erred in rendering judgment in favor of appellee Giraud for the land in controversy, and in not rendering judgment for defendant for same, because the undisputed evidence shows that the land in controversy was duly located for and awarded to Ashbel Smith and Wm. Ritchie in 1874, and duly patented to said Smith in 1877 by the state of Texas, and thereby became the titled property of said Ashbel Smith, and that appellant now owns and holds the title and possession of said land by mesne conveyances from said Smith down to himself; that the original field notes made by the surveyor of the land which was LANE, J. This suit was instituted in the district court of Harris county on the 2d day of October, 1911, by E. A. Giraud, here-located for said Smith and Ritchie, and which inafter called plaintiff, against J. W. Wilson, hereinafter called defendant, to recover the title and possession of a certain tract of land situated in Harris county, Tex., known as survey No. 2, in block A, by virtue of certificate No. 1562 (Confederate script), issued to Mrs. Martha Mings. Plaintiff's petition was in the usual form of petitions in suits of trespass to try title. Defendant answered by general denial and plea of not guilty, and further specially pleaded "that he owned by fee-simple title and was in possession of 575 acres of land, being out of the northern part of the two surveys surveyed for Ashbel Smith and Wm. Ritchie, respectively, in 1874, and thereafter, in 1877, patented to Ashbel Smith, patents No. 228 and No. 229, vol. 29," which lies in a parallelogram and is bounded on the north by the south boundary line of the George Ellis survey and on the east by the Bloodgood survey, and further describes same by metes and bounds, which embraces all of the land sued for by plaintiff south of the George Ellis survey, and defendant disclaims as to all of the land sued for by plaintiff lying along the west boundary line of said Bloodgood survey north of the south boundary line of the Ellis survey which was not embraced in the boundaries of the land claimed by him. He also pleaded in reconvention against plaintiff for the land so claimed by him. The cause was submitted to the court without a jury, who rendered judgment for the plaintiff for the land claimed by defendant, but for some reason, not made to appear by the record, denied the plaintiff judgment for the strip of land lying along and adjacent to the west boundary line of the Bloodgood survey north of the Ellis south line, sued for by him, to which defendant had entered a disclaimer. Judgment was for the defendant for the land sued for in his cross-bill, except such as was ad were contained in the patent from the state to Smith, covered all the land in controversy; that there was no ambiguity in the original field notes made by the surveyor who located said land for Smith and Ritchie, nor in the field notes in said patent from the state to Smith, nor in the original field notes by which the Benjamin Barrow survey was located, and that therefore the testimony of fered by plaintiff, and admitted by the court for the purpose of showing that the north line of the Smith and Ritchie surveys, which embraces the land sued for by plaintiff and that claimed by defendant, and the north boundary line of the Barrow survey, were actually located at a different place on the ground from the place called for by the field notes made by the surveyors of said two surveys, and upon which the state of Texas made the award and issued the patents to Smith and Barrow, was without any probative force, and was inadmissible because the descriptive matter called for in the grant must alone be looked to in determining the location of the boundaries of the land conveyed, there being no ambiguity in such descriptive matter. That the descriptive matter contained in the patent must be looked to in determining the boundaries of the land patented, and that no extraneous matter may be shown and looked to in determining such boundaries, unless there is some latent ambiguity in the descriptive matter in the patent, and that the survey actually made by the locating surveyor, whose field notes are carried into the patent, is in legal contemplation the true survey, and, unless there exists some latent ambiguity in the descriptive matter in the calls in such survey, proof of extraneous facts cannot be made to vary such descriptive calls, we think is too well settled in this state to be now questioned. Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S. W. 1097, and authorities there cited; Goldman v. Hadley, 122 S. W. 282; Ruling Case Law, vol. 4, § 65, p. 125. Indeed, appellee admits as much in his brief. It follows, therefore, from what has been said, that the important and controlling questions are: (1) Was there any latent ambiguity in the descriptive calls in the patent from the state to Smith? and (2) was the evidence introduced by appellee sufficient to support the judgment rendered in his behalf by the trial court? For the purpose of more clearly presenting the contention of the litigants as to the true location of the boundaries of the Smith and Ritchie surveys and surveys lying contiguous thereto, and of applying the evidence offered with relation thereto, we here present maps marked A and B, respectively, to wit: MAP B 1256 ASHBEL SMITH 609 1471 702 E.G.SMITH S. 802 W. 4000 VRS. BAYOU D M.28°W. 450 5.80 W. 4450 489. N. 80% E. 2924 VRS. AUG. 27 1835 S.C.HIRAMS SURVEYOR S.92 E, 5027 VRS. (234 S.W.) Map A represents the location of the [2] On the 10th day of August, 1824, the Smith and Ritchie surveys, and those neces- Wm. Bloodgood league survey, shown on the sary to be mentioned for the purpose of this maps A and B, was surveyed and located, opinion, as contended by appellant, and is and is described as beginning at the northfor all practical purposes a copy of the map west corner, a stake; thence S. 9° E. 5.000 or plat of said surveys as used by the Gen- varas to a stake for southeast corner; eral Land Office from 1874, the date of the thence S. 802° W. 3,500 bayou, 5,000 varas, survey and location of said Smith and Rit- a stake for its southwest corner; thence chie surveys by Surveyor J. J. Gillespie, up N. 92° W. 5,000 varas to its northwest to the time said Surveyor Gillespie surveyed corner, a post from which an elm markand located what is now shown on map Bed "W. B." bears north 50° W. 1 vara, as the Martha Mings survey in the year a water oak marked "W. B." bears S. 25° 1886. Map B, for all practical purposes, represents the location of the Smith and Ritchie surveys, and adjacent surveys, as made by Surveyor J. J. Gillespie in 1886, and of the new located Martha Mings survey shown on said map B. This map forms the basis of the contention of appellee (plaintiff) in the trial court. W. 6 varas; thence N. 801⁄2° E. 5,000 varas to beginning; that the location of the northwest corner and the west line of the Bloodgood survey are well established, easily found, and not questioned; that on the 17th day of August, 1835, the George Ellis survey, shown on said maps, was surveyed and located by field notes as beginning at a stake on the west bank of Cedar bayou north of the William Bloodgood north line; thence S. with the meanders of said bayou to the north line Plaintiff, E. A. Giraud, claims the land sued for by him under the contention that Surveyor Gillespie, who surveyed and locat- of said Bloodgood survey; thence with ed the Smith and Ritchie surveys in 1874, the Bloodgood north line S. 80° W. 950 vaand which were thereafter, in 1877, patent- ras to Bloodgood's northwest corner; thence ed to Ashbel Smith, made a mistake in his S. 91⁄2° E. 3,400 varas, a stake and mound first descriptive call running northward, in on the Bloodgood west line for corner; that he called for the south line of the George thence S. 80° W. 4,827 varas, a stake, etc., Ellis survey, while as a fact he began the as shown by said maps; that the location survey at a point on the north line of the of the south line of the Ellis is easily found Barrow survey, which was 2,270 varas south and located; that on the 24th day of Auof said Ellis south line, and ran north 80° gust, 1835, the Bloodgood augmentation 30' west 1,600 varas, not with the west line shown on said maps was surveyed and locatof the Bloodgood survey, as called for in his ed and described as lying wholly on the east original field notes by which said Smith sur- side of Cedar bayou, and as having its most vey was located and patented, but several southern northwest corner at a cedar 1+ hundred varas to the west thereof to a point inches in diameter on the east bank of said 670 varas or more short of the Ellis south bayou, which is shown to be on the south line, and therefore there was left a vacant, line of the Bloodgood league survey; that unappropriated body of land between the such survey is located as shown on said south line of the Ellis and the north line of maps and is 702 varas in width; that in the Smith and Ritchie surveys as patented; 1835 the Benjamin Barrow survey, shown on that in 1886, some 12 years after having lo- said map A, was surveyed and located and cated the Smith and Ritchie surveys, said J. described as beginning at a stake and mound J. Gillespie made another survey in the on the west bank of Cedar bayou, and on the same locality, and in so doing discovered his south line of a league granted to William said former mistake, and upon the vacant Bloodgood from which a pine, 10 inches in unappropriated land so discovered he locat-diameter bears N. 70° E. 85/10 varas, and an ed the Martha Mings survey, shown on map B; that on the 21st day of November, 1907, the state awarded to plaintiff said unappropriated land upon this application therefor, [1] If there was such vacant unappropriated land lying just south of the south line of the Ellis survey, as contended by plaintiff, it was subject to award by the state in 1907, and the award made to plaintiff passed the title to same to him. The burden of proving that such vacant and unappropriated land existed was upon plaintiff. The next questions, then, for our determination are: Has he made such proof? Does the evidence authorize a judgment in his favor? The undisputed evidence shows the following facts: 234 S.W.-8 elm 8 inches in diameter bears S. 60° E. 4 varas distant; thence with the south line of the Bloodgood S. 801/2° W. 4,000 varas, etc., as shown on said map A; that on the 10th day of August, 1835, the Jacob Armstrong survey shown on said maps was located as there shown; that the map or sketch of the Bloodgood, Ellis, Bloodgood augmentation, B. Barrow, and Jacob Armstrong surveys, as used in the General Land Office in 1879, represented the location of said surveys as represented on the map A, and that said location of said surveys was so shown by all maps with reference thereto up to 1886, at which time Surveyor Gillespie made a plat or map showing otherwise, as shown by map B copied in this opinion; that on the 23d day of Decem ber, 1874, J. J. Gillespie, county surveyor of In June, 1871, the owners of the whole of Harris county, while in possession of the the Barrow one-fourth league survey conveyfacts above stated with reference to the lo-ed to Roseman, Milam & Bro. the south half cation of the Bloodgood, Ellis, and Barrow of said survey, which said survey was 1,470 surveys, each to the other, as then shown by varas in width, it being stated in the deed of the Land Office map and descriptive calls, conveyance, however, that said south half went upon the ground, surveyed, platted, and was to contain 5531⁄2 acres, and no more. by metes and bounds described the Smith and Ritchie surveys exactly as now contended for by appellant, and as shown by map A, embracing all the land sued for by appellee south of the George Ellis line, now claimed by appellant. S. P. Sjolander, a witness for plaintiff, testified that he moved to the locality where the Barrow survey is situated in 1871; that he had lived near what had been generally understood to be the north boundary line of the Barrow survey ever since, except for about six months; that there were marked trees along said line; that at the point where this line intersected Cedar bayou there were some elm trees that had surveying marks on them, a cross mark, and that there was also a large pine tree that finally blew down near that point; that after it blew down he noticed three marks which extended through the sap into the heart of the tree; that he had cut wood on each side of said marked line, and tried to avoid cutting the marked line trees; that in 1878 or 1879 Roseman, Milam & Bro. (parties who purchased the south half of the Barrow) constructed a fence on the line above mentioned, which he (witness) knew by general reputation to be the north line of the Barrow one-fourth league; that the fence so constructed has remained practically in the same place ever since its construction; that he knows where the Hunt tract (shown on map B) is situated; that it has always been understood that it was bounded on the south by the north line of the Barrow; that in fact the fence constructed by Roseman, Milam & Bro, on the north line of the Barrow inclosed the south side of said Hunt tract; that he knew County Surveyor J. J. Gillespie, and was present when he made some surveying on the Barrow survey; that at that time there were trees with marks on them along the place where the fence erected by Roseman, Milam & Bro. ran; that Gillespie at that time got his line at that place; he considered that was the line. In surveying the Smith survey in 1874, said Gillespie, by his field notes and plat by which said survey was located and patented, shows that he began at a point on the north line of the Barrow survey 1,500 varas from Cedar bayou, which was the southwest corner of the Bloodgood survey if the calls for the north line of the Barrow then in his possession were correct. From thence he ran N. 91/2° W. 1,600 varas, with the west line of the Bloodgood, to the southeast corner of the Ellis as called for by the field notes in his possession and as shown by the Land Office plat of said Bloodgood, Ellis, and Barrow surveys in his possession, or within his knowledge. From thence he ran south 801/2° W. with the south line of the Ellis, as shown by the field notes and plat in his possession, 1,471 varas to a stake. From thence he ran south 91/2° E. 1,600 varas, to a stake in the north line of the Barrow survey, and from thence N. 80%1⁄2° E. 1,471 varas with said line to the place of beginning. Taking, then, the undisputed evidence, considering the fact that Gillespie must necessarily have had in his possession the descriptive calls for the Bloodgood, Ellis, and Barrow surveys, forming the boundaries of the land he was surveying, and with the knowledge of the existence of the Land Office plat of said surveys, shows conclusively that in 1874 he actually made the survey of the Smith as called for in the field notes and plat thereof, which he made and furnished and by which the Smith survey was located and patented, for and to Ashbel Smith. It is shown by the undisputed evidence The undisputed facts show the footsteps of that, at the time Roseman and Milam erected Gillespie in making said Smith survey in the fence testified to by Sjolander, they did 1874. The same may be said of the facts not own the north half of the Barrow surshowing the location and patent of the Rit- vey, but that they purchased the same in chie. The land patented to Ashbel Smith 1881, 2 years or more after said fence was passed by mesne conveyances to appellant. | built. It is also shown that in September, These undisputed facts made a prima facie case for appellant, and, unless overcome by other admissible evidence, he is entitled to recover. [3] We will now discuss the evidence relied upon by appellee (plaintiff below) to show that a part of the land upon which the Martha Mings survey was located in 1886 by Surveyor Gillespie was not actually embraced in the survey made by the same 1886, 12 years after Gillespie had surveyed, located, and platted the Smith and Ritchie surveys, and 9 years after they had been patented to Ashbel Smith according to Gillespie's first survey and plat, he went to the same locality for the purpose of surveying and locating the Martha Mings survey, and at that time, for some reason, in determining the north line of the Barrow he began at the point on the bayou where Sjolander |