In this cause we allowed a writ of error to the Court of Civil Appeals of the Third Supreme Judicial District upon the petition of the appellants. The suit was brought by the appellees against the appellants, to establish their title to an undivided one-half interest in a league and labor of land on the Rio Frio, in Frio County, patented in the name of Pedro Flores Morales. The plaintiffs alleged that appellants own the other one-half of said land, and they prayed for the partition thereof.
The defendants pleaded not guilty.
P.L. Buquor and the heirs of C.F. King intervened in the cause, alleging that they owned an undivided one-half interest in the original certificate, number 489, issued to the said Pedro Flores Morales. They specially pleaded the facts of their title, as follows: That on the _____ day of February, 1852, said certificate 489 was located in Comal County, covering the town of New Braunfels and land adjacent to said town; that subsequently the said Buquor and Smith purchased "an interest in said certificate and land, as will more fully appear from a deed herein filed with and attached to the depositions of P.L. Buquor, marked exhibit A, and prayed to be taken as a part of this petition;" that subsequently said certificate was floated and relocated in Frio County, on the lands in controversy; that intervenors are by virtue of said purchase the legal and *Page 27 equitable owners of an undivided one-half of said lands, they having paid the purchase money.
The plaintiffs filed a general demurrer, a general denial, and a special answer to the petition of intervention, but the record fails to show that the demurrer was ever called to the attention of the court, or acted upon.
The special answer to it alleges, in substance, that the claim of the intervenors is based upon a pretended deed, executed by M.J. Lee, administratrix of the estate of J.W. Smith, deceased, in the year 1852, purporting to convey to said Buquor and one King certain town and farm lots in Comal County, about where the town of New Braunfels now stands; that the purchase money was not paid; "that said land was soon after such sale lost to the estate of said Smith, and by mutual agreement between said administratrix and the purchasers at said sale" it was annulled.
The case was tried by the judge without a jury, and a decree was rendered in favor of the plaintiffs for one-half of the land, that the intervenors take nothing, and for partition between plaintiffs and defendants.
The Court of Civil Appeals affirmed the judgment of the District Court.
John W. Smith died in 1845. The Pedro Flores Morales headright certificate was owned equally by him and Enoch Jones. It was located by them on the land in controversy. Plaintiffs (appellees) are the heirs of the said John W. Smith. Enoch Jones died on the _____ day of ________, and the defendants in the District Court (appellants) are his heirs and assignees.
Maria Jesusa Lee, who was the widow of John W. Smith, was administratrix of his estate from 1847 to 1856. At some date previous to the 4th day of May, 1852, she and the said Enoch Jones withdrew the said land certificate from its location on the land now in controversy, situated in Frio County, and filed it upon a portion of the Baron de Bastrop grant in Comal County.
On the 4th day of May, 1852, the administratrix, in obedience to an order of the Probate Court of Bexar County, sold the land so located in Comal County to Enoch Jones and Buquor and King and divers other persons.
The Court of Civil Appeals finds that the purchase money of the land so sold to Enoch Jones and to Buquor and King was paid, and that the lands by them respectively purchased were conveyed to them by the administratrix; the sales to them having been first confirmed by the Probate Court. It appears that none of the other bidders at said sale complied with the terms of sale or received conveyances. The intervenors now claim the lands purchased by Buquor and King.
The land was sold in lots, and the only description anywhere given of them, in connection with said sale, is by the lot numbers. After enumerating *Page 28 the lots sold by the lot numbers, the record shows that the whole of the remainder of the league and labor in Comal County was sold and conveyed to Enoch Jones. The size of the lots is not shown; nor is there anything in the record by which the acreage or quantity of the land bid off or sold to any purchaser can be ascertained. The noncomplying bidders represent a large number of lots, but whether they included much or little of the land does not appear.
In the year 1854 one of the heirs of John W. Smith filed a petition in the Probate Court of Bexar Court, praying for a partition and account. The administratrix answered the petition, mentioning the property that belonged to the estate, including the land now in controversy, which she designated as being located by the Pedro Flores Morales certificate, and claimed for the estate an undivided one-half of said land as tenant in common with Enoch Jones. The said Jones filed his plea of intervention in said proceeding on the 28th day of April, 1854, in which he alleged that he was a tenant in common with said estate in certain enumerated lands and property, but he did not include nor mention the land now in controversy.
In 1854 a decree was entered in said proceeding by the Probate Court, reciting, "that the estate of John W. Smith is the owner of an equal undivided one-half of the league and labor of land situated on the Rio Frio, the headright of Pedro Flores Morales, by virtue of certificate 489, and held in common with Enoch Jones, he being the owner of the other half, and it should be partitioned." It does not appear that commissioners were appointed, or that any partition was ever made under this order.
In July, 1854, some of the heirs of John W. Smith filed a suit in the District Court, against other heirs, the administratrix, and Enoch Jones, for a partition between Jones and the estate, as well as between the heirs. In that petition plaintiffs included the land now in controversy, describing it as follows: "One equal undivided half of one league and one labor of land, held in common with Enoch Jones, the headright of P.F.G. Morales, on the Rio Frio."
To this suit the defendant Jones filed the following answer: "Enoch Jones, for answer in the above cause, is willing to recognize and have confirmed the former partition between the estate of John W. Smith and himself, and he prays the court to confirm said partition."
On the 24th day of July, 1856, a final decree was entered in said cause, confirming "the divisions and partitions heretofore made by order of the Probate Court between the said estate and the said Enoch Jones," etc.
In the year 1861 Enoch Jones procured from the Commissioner of the General Land Office a duplicate of the said Pedro Flores Morales certificate, number 489, which he caused to be relocated on the lands now in controversy, upon which patents were issued in the name of said Pedro Flores Morales. *Page 29
The district judge based his judgment upon the conclusion of law, that the matter is res adjudicata, and that the defendants are estopped." The Court of Civil Appeals concurred in that conclusion.
If it had been shown that at the dates of the proceedings in the District and Probate Courts, or either of them, the Morales certificate was located upon or legally or equitably attached to the land in controversy, we would approve this conclusion, so far as the appellants are concerned.
It is an agreed fact, that originally the said certificate was equally owned by John W. Smith and Enoch Jones, and that before the death of Smith they had located it on the land in controversy; but it does not appear that there was ever any survey made or field notes returned to the General Land Office in pursuance of that location.
It does appear that before the 4th day of May, 1852, Enoch Jones and the administratrix of John W. Smith withdrew the certificate from said location and caused it to be located on the land in Comal county, where it remained until 1861, when Enoch Jones, who then claimed to be its sole owner, procured a duplicate of it and caused it to be again located on the land in controversy.
Each of said suits was commenced subsequent to the date of the withdrawal of said certificate from the land in controversy, and the final judgment in each was rendered several years before it was again located on the said land. In other words, during the period of said litigation the said certificate was not on the land in Frio County, then and now in controversy.
It is conceded that the title to the land is the result of the location and survey of the said certificate. If it was never withdrawn from the first location, and if said location was in no manner lost nor abandoned, the title to both the certificate and the land was in issue in said suits, and was finally determined, as to the parties to them, in favor of the plaintiffs (appellees) as the heirs of John W. Smith.
If, on the other hand, the first location was lost or abandoned, either by the voluntary action of its owners or by the omission of some act required to keep it in force, then the title to the land was not divested out of the State until the location was made of the duplicate certificate in 1861, and could not therefore be affected by the litigation that had terminated some five years before.
The fact that the heirs of John W. Smith recovered against Enoch Jones, in 1856, a judgment for land that neither party then owned, would not prevent either party from subsequently acquiring the title.
In such case the present ownership of the land would not depend upon the judgments rendered in 1854 and 1856, but upon the ownership of the certificate when the location in 1861 was made.
It becomes important to determine whether or not the location of the certificate made in the lifetime of John W. Smith was lost, so that during *Page 30 the period of time embraced by said suits it was not attached to the land in Frio County. And this brings us to consider, in the first place, whether the withdrawal of certificates once located, and their relocation, was forbidden by any law in force in 1852 or previous to that time.
The first law on the subject was the Act of the 30th of August, 1856. By the second section of that act it was made unlawful for any surveyor to allow the holder of any land certificate or scrip, or other legal evidence of title to land, to lift or float the same after entry, location, file, or survey, when the same is not made upon land previously appropriated. But when a conflict of entries, files, locations, or surveys occurs, upon a proper showing of the facts, which may be by the certificate of one of his deputies, or from his own knowledge, he shall allow the party having his entry, file, location, or survey of subsequent date to lift so much thereof as shall be affected by such conflict." Pasch. Dig., art. 4574.
Before the passage of this law the right to withdraw certificates from locations and locate them elsewhere, or to "float" them, was universally recognized, and was practiced with the sanction of the courts. The statute quoted was not intended to be merely declaratory of what the law had previously been. It established a rule of action for the future, and did not therefore affect the right to withdraw the certificate from the first location made upon the land in controversy.
As early as the year 1848 Justice Lipscomb, in the case of McGimpsey v. Ramsdale, 3 Tex. 344, used the following language in regard to the right to float a certificate: "If the question was a new one, I should feel strongly inclined to deny the right of Ramsdale to have raised his former location; but the practice commenced with our land system, and to upset it now would disturb land titles to an incalculable extent. It is supposed, too, to be sustained by precedent from other States, in which it had been equally unfounded in any express provision of law, but originated in liberality and indulgence to holders of warrants."
In the case of Hollingsworth v. Holshousen, 17 Tex. 40, Justice Wheeler said: "A party may abandon his location and survey at any time before his certificate is merged in a patent, provided he does not thereby interfere with the rights of any other person."
In the case of Johns v. Pace, Justice Bell referred to the above cases, and said, that they "have settled that the owner of a land certificate which has been located may abandon the location at any time before the certificate is merged in a patent, provided he does not thereby interfere with the rights of any other person." 26 Tex. 270.
But it is contended that an administrator did not have the power to abandon a location; that in this case the original location of the certificate having been made by John W. Smith, the certificate was merged into the land, and that his administratrix did not have the right to withdraw it, and thus convert real estate into personalty. *Page 31
The contention seems to be plausible. It is well settled by the decisions of this court, that an unlocated land certificate is personal property, and that while located it is merged into the land, and thereby becomes real estate. Whether the property of an estate belongs to the one class or the other, leads to results materially different, in more respects than one; as, for instance, under our statute of descent and distribution.
It may not be evident, however, that the authority of an administrator to convert personal property into real, by locating a certificate, is better defined than his power to change real into personal estate by withdrawing a located certificate. A land certificate is so different from tangible personal property, and is so readily converted into land, without which it can not possibly ever be of any value, that it has been found impossible to arbitrarily classify it as personal property without leading to some incongruities in the application of some of the rules relating to property, of which the case before us may, to some extent, furnish an illustration.
The right to make more than one location of a certificate by abandoning those once made, is an important privilege, and may very properly enhance the value of the certificate. The first location may have been unwisely made; it may have been made on inferior land, or land that will not appreciate in value so readily as some other location will. By the loss or abandonment of the claims of others, new and better locations may be offered; or it may be found that others claim a prior right to the first location. In such cases, and many others, it is difficult to concede that when the law recognized the existence of a general right of the owner to withdraw a certificate from a location once made, and to place it elsewhere, the power should not survive to his legal representatives to do the same thing. No good reason is apparent why an administrator should have been compelled to keep a certificate located upon a contested or worthless claim, when vacant and valuable lands were accessible.
We think that the decision of this court in the case of Poor v. Boyce, 12 Tex. 447, 448, is fairly in point on this question. In that case Justice Wheeler said: "To the argument, that the survey vested title in the heirs which could not be divested by the act of the administratrix, it is sufficient to say, that the latter had the same right to raise the location for the purpose of making one elsewhere, which she may have deemed more advantageous to herself and the heirs, that she had to apply for and obtain the certificate and make the location in the first instance; and her own interest in the matter of the location was a sufficient guaranty against an abuse of the trust. The interest of the heirs required that she should have the same authority and discretion to control the incipient steps in procuring the title which any other party might lawfully exercise in obtaining title to land, being responsible for a judicious and faithful discharge of the trust. If it was shown that she *Page 32 had combined with others to defraud the heirs, or had abused the trust to their prejudice in removing the location, her acts might be annulled and the original location reinstated, provided innocent third persons were not prejudiced thereby."
While there is no express finding to that effect, the record before us shows that the certificate was the community property of John W. Smith and the wife who subsequently became his administratrix. It results that she owned one-fourth of the certificate, and that its withdrawal from the location in Frio County and location in Comal County were the acts of the owners of a three-fourths interest in it and of an administrator who represented the remaining one-fourth.
It is true that neither the reason nor the wisdom of the change is made to appear by the record before us; but, on the other hand, it does not disclose that there were not reasons sufficient to make both the withdrawal and new location prudent and proper. In the absence of all evidence, it is but reasonable to indulge the presumption that the administratrix discharged her duty, and that the circumstances under which she acted justified her conduct.
The question, in its application to the case before us, has a double aspect: First. As to whether the certificate was merged in the land in Frio County during the pendency of the above mentioned suits so as to make the judgments in them res adjudicata of the title of the certificate, as between the parties thereto. Second. Whether said certificate was lawfully applied to the land in Comal County in May, 1852, so as to make the sale of that land by the administratrix pass to the purchasers the title to the certificate, when it failed to vest in them the title to the land.
The case of Poor v. Boyce, above referred to, was decided in this court in the year 1854, and it was well calculated to justify the conclusion, that administrators as well as others could withdraw certificates and locate them elsewhere; that the purchasers under the second location would acquire the land as well as the certificate; and that the withdrawn certificate was no longer attached to the first location. The certificate could not lawfully hold land at both places at the same time.
What was the natural and probable construction of the language of that opinion with regard to the right of administrators to voluntarily float certificates, is not open to a doubt, and it may be as truthfully said, as was done in the case of McGimpsey v. Ramsdale, 3 Tex. 348, that "to upset it now would disturb land titles to an incalculable extent."
But there is another view of the question, from which we think it must follow that before the beginning of the year 1854 the land certificate had ceased to be attached to the land in Frio County.
On the 10th day of February, 1852, the Legislature passed an act requiring that "the field notes of all surveys made previous to the passage of this act shall be made out and returned in the manner now required *Page 33 by law to the General Land Office on or before the 31st day of August, 1853, or they shall become null and void, and the said surveys shall become vacant land, and be subject to be relocated and surveyed as in other cases, by any person holding a genuine land certificate or other legal evidence of claim to land." Pasch. Dig., art. 4562.
The eighth section of the same act read as follows: "All lands heretofore located by virtue of any genuine claim to land shall be surveyed within twelve months from the passage of this act, and all lands which may be hereafter located shall be surveyed within twelve months from the date of location, or the said location in either case shall be null and void, and the land be subject to relocation and survey as other vacant and unappropriated land."
The record shows that the location in Frio County was subject to the provisions of this act, but it does not show that any survey was ever made. If there could be gathered from it even an inference that a survey was made, the case would still be utterly without evidence that the field notes of such survey were ever returned to the General Land Office. If the law was complied with in either respect, the proof was of record, and it should have been produced. There is no suggestion of the loss or destruction of the records.
In the agreement of counsel filed in this cause, and in the report of the auditor in cause 1091 in the District Court, the word "survey" appears in connection with the Frio County land, but its use was evidently intended to specify in a general way the body of land located, and not to prove an important fact in issue. No boundaries of such a survey are anywhere referred to. If there had been in fact a survey, and it was deemed important to report upon it in one case or to include it in the other, nothing was easier than to directly so declare in so many words, rather than leave it to be inferred from an indefinite designation of the land as "a survey." It is to be noted, however, that the record does indicate at more than one place that a survey of the location in Comal County had been made.
A survey of a location, as well as the return of the field notes to the General Land Office, could have been indefinitely postponed, without the loss of any right, before the passage of the Act of 1852, and the mere passage of the law indicates that such a practice existed. It is not likely that a survey of the Frio land was made, or the field notes returned after the passage of the Act of 1852, because all of the parties interested had concurred in withdrawing the certificate from that location, and had placed it in Comal County, and were dealing with it there. It would be contrary to reason to conclude that they were at the same time surveying the Frio land or returning its field notes to the General Land Office.
A great obscurity attends both the transactions about the certificate *Page 34 and the court proceedings in regard to the land. Why one location was abandoned and another one made, and why neither was perfected, is in no respect explained.
When the probate proceeding occurred the administratrix had not only co-operated in withdrawing the certificate from the Frio County location, and in its location in Comal County, but she had, by the approval of the court, sold and conveyed the land held by it in the last named county. She, it is true, subsequently by her answer, brought the Frio County land into the Probate Court for partition; but it is to be remarked that she there described it as "patented" land, and not as held by said certificate. Its being patented land was evidently a mistake; but its being so styled serves to show that the proceedings were not being conducted upon the theory that the title to the said land certificate was in issue, or that it was located on the land then being partitioned. The only description of or reference to the land in the partition suit 1091 in the District Court was made by a reference to the probate order and to the report of the auditor. The report of the auditor expressly refers to the land in Frio County, but it says the same certificate number 489 had been "raised."
The statute of 1852 has been repeatedly recognized and literally enforced by decisions of this court,
In the case of Holloway v. Holloway, 30 Tex. 177, Justice Smith said: "From the decisions of this court we are satisfied that the location of 1844, if not surveyed as directed by the Act of February 10, 1852, became null and void on the 11th day of February, 1853, and that it will not support this action."
The different sections of the act were quoted by this court in the case of House v. Talbot, 51 Tex. 468, and their effect was announced by Justice Bonner in the following language: "This was a necessary and reasonable provision, and the evidence shows that it was the misfortune of plaintiff's intestate not to have complied therewith, and hence to have forfeited his location."
In the case of Cassin v. O'Sullivan, 61 Tex. 595, it was said by the present Chief Justice, that "after twelve months from Brown's original location, no surveys of the land having been made, nor steps taken to compel surveys, the land again became subject to location by Brown or any other person." See Snider v. Methvin, 60 Tex. 500; Tucker v. Murphy, 66 Tex. 355 [66 Tex. 355].
In the case of De la Garza v. Cassin, 72 Texas, the Chief Justice, referring to the Act of 1852, said: "The effect of the statute is to declare absolutely void a location not followed by a survey within twelve months after entry, and to restore the land once covered by it to the mass of unappropriated public domain, and to subject it to relocation by any person." See Stewart v. Lapsley, 11 Tex. 41; Frederick v. Hamilton,38 Tex. 343; Bone v. Walters, 14 Tex. 568. *Page 35
The second section of article 10 of the Constitution of 1869 declared, that "all surveys of land heretofore made, and not returned to the General Land Office in accordance with the provisions of an act entitled 'An act concerning surveys of land,' approved February 10, 1852, are hereby declared null and void."
Section 18 of article 16 of the Constitution of 1876 provides, that no "rights or actions which have been divested, barred, or declared null and void by the Constitution of the Republic and State shall be reinvested, renewed, or reinstated by this Constitution; but the same shall remain precisely in the situation in which they were before the adoption of this Constitution, unless otherwise herein provided."
Thus we find that by clear and emphatic provisions of the statute, approved and enforced by a long line of decisions of the courts, strengthened by the express recognition of the Constitution, located land certificates, since the Act of 1852, became detached unless they were surveyed and the field notes were returned to the General Land Office as directed by that act.
It is as necessary for a party who claims land through the location of a certificate to show compliance with that act as it is for him to prove the location itself. The act contains no exceptions, and none can be engrafted upon it. It applies to all certificates and all surveys. The Legislature was not bound to relieve from its provisions infants nor married women, guardians nor administrators, and it did not do so.
Upon this aspect of the case, Justice Lipscomb used the following language in the case of Upshur v. Pace, 15 Tex. 533 [15 Tex. 533]: "There was a defense set up that could not certainly have been seriously insisted upon. It was, that the Clark certificate had been assigned to one Britton, and that the location was made for him under the Clark certificate; that he had died before the time limited by the statute for returning the field notes into the General Land Office, and that his heirs were minors, and that it was not competent for the Legislature to impose upon them the forfeiture declared by the statute. We believe there is nothing in this objection."
There is no escape from the conclusion, that an administrator could detach a located certificate from the land by a failure to comply with the provisions of the Act of 1852. If such representative voluntarily refrained from complying with that law, the certificate thereby became released from the land, and could be lawfully located elsewhere. With such a provision in the law, we can not see a reason, a necessity, nor an advantage in holding that an administrator could not accomplish the same result by the direct act of voluntarily withdrawing the certificate a few months earlier, if he should think that would be advantageous to the estate. If the administrator should act improperly, or should negligently *Page 36 cause a loss to the estate, an action on his bond would lie in favor of those who had the right to complain.
We think it is clear, that after the 10th day of February, 1853, the land certificate in question was not attached to the land in Frio County until after the conclusion of the proceeding in the Probate Court and the suit in the District Court.
The record shows that both the Comal County land and the Frio County land were inventoried and claimed as part of the estate of John W. Smith, under a location of the Pedro Flores Morales certificate, number 489.
The petition of the administratrix for the sale of the Comal land, and the order for its sale made by the Probate Court, expressly refer to it as being held under said certificate; while the order of partition, made in the same court and referred to in the judgment in the District Court, of the land lying in Frio County, describes that as being held under the same certificate.
It is evident, however, that in all of said proceedings the land itself was the subject of adjudication, and the question was whether a particular body of land should be sold in one instance or partitioned in the other, and not whether the said certificate was merged in the one location or in the other, nor who had the title to the certificate.
The questions presented by the pleadings and determined by the judgments were the sales and partition of distinct parcels of land, and not the sources of their titles. If it had been otherwise, we might have been required to decide between the conflicting judgments, without resort to extraneous evidence, however conclusive that may be, if all the parties to this suit had been represented in the others. The pleadings in the case before us are in harmony with this view of the case.
The plaintiffs specially pleaded the judgments of the Probate and District Courts as estoppels, but upon the ground that the land in Frio County was adjudged to be held by the estate in common with Enoch Jones, and not that said judgments established that said certificate was merged in said land. The allegation in regard to the Probate Court proceeding is, that "the said land herein sued for was adjudicated and determined to belong to the estate of John W. Smith, deceased." The allegation in regard to the judgment in the District Court is, that it gave said land to said estate of John W. Smith, deceased, confirming the said decree of the County Court."
Another reason why said judgments can not, by their mere recitals, control the status of the certificate, lies in the fact that they were partition proceedings, and all of the parties in interest were not then before the court. The intervenors were not represented nor bound by them. All of the parties in interest not being bound, none of them were.
The written agreement filed in this cause is, that said land certificate *Page 37 was filed upon the land in Comal County "when Mrs. Maria J. Lee, as administratrix of the estate of John W. Smith, deceased, made sale of the former lots described in the deed of said date executed by said administratrix to Enoch Jones."
It shows that it was after said sale of the Comal land that the certificate was removed therefrom by Jones. Under repeated decisions of this court, the purchasers of the Comal land acquired the title to the certificate if it was then filed upon the land, notwithstanding they did not acquire any title to the land itself. Hearne v. Gillett, 62 Tex. 23; Hines v. Thorne,57 Tex. 102; Robertson v. Du Bose, 76 Tex. 8 [76 Tex. 8]; Abernathy v. Stone, 81 Tex. 433; Ansaldua v. Schwing, 81 Tex. 198.
The interest of each purchaser in the certificate would be in proportion to the quantity or acreage purchased by him at that sale, and subsequently confirmed and conveyed to him.
The title to the land in Frio County, and now in controversy, was first acquired from the State in the year 1861 by the location, survey, and subsequent patent under the duplicate Pedro Flores Morales certificate, and the title enured to the owners of said certificate.
It was agreed that at the death of John W. Smith an undivided one-half of it belonged to the community estate of himself and his wife, Maria, who is one of the plaintiffs in this suit. The said Maria and her coplaintiffs, who sue as the heirs of said John W. Smith, claim and seek to recover an undivided half of the land. They established their claim through the agreement that they owned one-half of said certificate, if the evidence had closed there. But the evidence introduced in regard to the Comal sale showed that both the defendant, Enoch Jones, and the intervenors had purchased some of said land, and consequently own some portion of the Smith half of the certificate. We think that under the circumstances of the case they should have gone further, and have proved what number of acres they so purchased, so that it could have been ascertained what number of acres of the certificate, and through it of the land in controversy, they so acquired.
The record shows that they did not purchase the whole of the estate's interest, though it may be that they purchased the larger proportion of it. For whatever portion of the estate's one-half interest in the certificate a sale of the land was not consummated because the purchasers failed to comply with the terms of the sale and get conveyances, the estate still holds an interest in the land patented by virtue of said certificate.
It would seem that the defendant and the intervenors should be able to prove the quantity conveyed to them.
The plaintiffs are in a situation to make out their case by proof of their interest in the certificate; and if the proof rests there, they must unquestionably recover. The defendants do not (much more the intervenors do not) defeat plaintiffs' right to recover merely by introducing deeds showing *Page 38 that they have acquired some unnamed and indefinite quantity of plaintiffs' land. If the plaintiffs' suit was to recover the Comal land, then the evidence introduced by defendants and intervenors might be sufficient. But the description of that land is wholly inapplicable to the land in controversy. It serves only as a basis, by acreage, to show the extent of the right acquired in the land in controversy. Without proof of some quantity, the evidence is too indefinite to have any effect given to it, when the issues joined are such as the record now before us presents.
The views expressed by us as to the burden of proof upon the last named issue would lead to an affirmance of the judgment; but we do not think that such would be a just nor an entirely correct disposition of the case. The controlling question upon which the judgment rendered in the District Court was rested was not decided there according to the views entertained by a majority of this court, nor correctly, as we think; and we therefore conclude that the judgments of the District Court and the Court of Civil Appeals should be reversed, and that the cause should be remanded, and it will be so ordered.
Reversed and remanded.
Delivered April 27, 1893.
DISSENTING OPINION.