This was an action of trespass to try title, brought by the appellee against the appellant. The plaintiff claimed the survey known as "El Perdido," and the defendants that known as "La Blanca," and the controversy seems to have grown out of a dispute as to the true location of the dividing line between the two surveys. These lands were granted in 1835 — La Blanca to Gil Zarate y Bayerea and El Perdido to Pedro Garcia. In order to facilitate the trial it was agreed between the parties that the defendants had title to the La Blanca tract and that the plaintiff had title to the El Perdido, unless a certain deed through which he claimed was forged, and that except that as to the forged deed the sole issue in the case was as to the true location of the dividing line between the two surveys.
Before entering upon the trial the defendants made a motion, based upon several grounds, to suppress the depositions of four witnesses, which had been taken in behalf of the plaintiff. The motion was overruled, and that ruling is assigned as error. The first ground of the motion is, that one commission was issued to take the depositions not only of the four witnesses above referred to, but also of several others, and that the return of the officer who executed the commission failed to show why the depositions of the latter were not taken. It is insisted, that because the officer only partially executed the commission and failed to show any reason for not executing it in full, what was done by him was not in accordance with his commission and the law, and should therefore be annulled by the court. We see no good reason to maintain this contention. It may have some support in extreme technicality, but has none in sound principles of procedure.
Why should a plaintiff who has filed interrogatories to two or more witnesses, and who has taken out a commission to take their depositions, *Page 88 be compelled to take all of them, if for any reason he desires not to do so? It seems to us he might as well be required to place upon the stand every witness he has summoned to attend the trial. When he has taken the testimony of one or more of the persons named in the commission, and deems that sufficient, or has ascertained that the others knew nothing material to the case, is he bound to incur the extra labor and expense of doing a futile thing? We think not. It may be, that when a defendant has filed cross-interrogatories, and especially when his interrogatories are such as to make the witness his own, he may have such an interest in the commission as would entitle him to have the depositions taken on his own behalf, and that the failure of the officer to execute the commission as to all the witnesses might give him the right to ask for time to procure their testimony; but it would not entitle him to have the depositions taken by his adversary suppressed.
The depositions in this case sought to be suppressed were taken in the city of Camargo by an officer who gave his official title as "Consular Agent of the United States at Camargo, Mexico." In authentication of his act he used a seal, which contained the words, "United States Commercial Agency." It is claimed that the seal of the United States Commercial Agency is not the seal of this officer. Section 1674 of the Revised Statutes of the United States contains this language:
"1. 'Consul-general,' 'consul,' and 'commercial' agent' shall be deemed to denote full, principal, and permanent consular officers, as distinguished from subordinates and substitutes.
"2. 'Deputy consul' and 'consular agent' shall be deemed to denote consular officers subordinate to their principals, exercising powers and performing duties within the limits of their consulates or commercial agencies respectively, the former at the same ports or places, and the latter at points and places different from those at which such principals are located respectively.
"3. 'Vice-consuls' and 'vice-commercial agents' shall be deemed to denote consular officers who shall be substituted temporarily to fill the places of consuls-general, consuls, or commercial agents, when they shall be temporarily absent or relieved from duty.
"4. 'Consular officer' shall be deemed to include consul-general, consuls, commercial agents, vice-consuls, vice-commercial agents, and none others.
A consul is defined to be, "a commercial agent of a country residing in a foreign seaport, whose duty it is to support commercial intercourse of the State, and especially of the individual citizens." 3 Am. and Eng. Encyc. of Law, 764. From this definition, as well as the language of the statute, we deduce these conclusions: That a consul and a commercial agent are invested with the same powers and duties; that though nominally different, the office of each is substantially the same as that of the other, and that the name is determined by the relative *Page 89 importance of the port to which the officer is assigned. It is to be noted that the second subdivision of the section of the Revised Statutes of the United States hereinbefore quoted provides, that deputy consuls are subordinates who perform their duties at the same port as their principals, and that consular agents are in effect deputies who act at a place other than that at which their principals are located. In the first subdivision commercial agents are declared to be principal officers, and it is thereby indicated that they might have deputies. It would seem that if a commercial agent should be placed in charge of a number of ports or places, a deputy might be necessary at places where he could not discharge the duties of the office in person. But the Revised Statutes do not expressly mention a deputy commercial agent or the agent of that officer. The agent of a commercial agent by being called a commercial agent would not have been distinguished from his principal, and we therefore incline to the opinion that it was intended that such a deputy when acting at a place different from that of his principal was intended to be known as a consular agent. He is such in fact, and it is no misnomer. It is evident from the certificate to the depositions in this case that the officer was an agent in a commercial agency, and we infer that, under the official title of consular agent, he was acting as deputy of the commercial agent of a consular district. The seal of the United States commercial agency would indicate that such agency existed at Camargo, and it would seem that a consular agent at that point must have been subordinate to the commercial agent in charge of the district in which Camargo was situate. But at all events, it is to be presumed that the officer who took the deposition did his duty and affixed the proper seal in authentication of his acts; and from the lights before us we can not say that the seeming discrepancy between the seal and the title of the officer is sufficient to overcome that presumption. On the contrary, without the aid of the presumption, we are inclined to the opinion that we should be constrained to hold that the seal was a proper one.
But another ground upon which the motion to suppress was based is, that an attorney of the plaintiff acted as interpreter in taking the depositions. The facts in relation to that matter are, that one H.F. Hord was employed by the plaintiff to attend the taking of the depositions, and to see that they were taken according to law. He was present when the depositions were taken. The witnesses spoke Spanish, and did not understand the English language. Hord understood both languages. The officer also understood the English and Spanish languages well, but because he did not write the former with facility, he requested Hord to take down the answers of the witnesses. Hord translated the answers and wrote them down. The officer compared Hord's work, which was done in his presence and hearing, and after the *Page 90 answers were written down assured the witnesses that they were correctly translated. It was admitted that Hord "made the interpretations correctly," and that he was not sworn. Our statutes give the officer authority to summons and swear an interpreter. Rev. Stats., art. 2230. When the witnesses do not understand the English language, and the officer does not understand both that language and that of the witnesses, he should undoubtedly secure an interpreter and swear him as the statute provides that interpreters shall be sworn. But if the officer be familiar with both languages, and merely make use of an interpreter in taking the deposition, supervising the work himself and seeing that it is correct, we see no reason for requiring that the oath shall be administered to such an interpreter. It is the officer's work, at last, and it is to presumed that he has done his duty and has seen that his assistant has interpreted correctly.
The fact that Hord was the attorney of the plaintiff presents a question of more difficulty. We think it improper for the officer to permit the attorney of a party to write out the deposition of the witness in any case; and in this case, the attorney having acted both as an interpreter and an amanuensis, the irregularity is more pronounced. If that had been all that had been shown with reference to the matter, the depositions should have been suppressed. But the statute does not expressly prohibit the action that was taken in this case, and therefore it can not be said that the depositions are void. It is a gross irregularity, for which a deposition as a rule should be avoided. But it here appears that the officer knowing both languages was present throughout the taking, supervised and compared the work. It reasonably appears that he knew the answers as written down were correct, and it is substantially admitted that they were correct. The facts repel every inference of fraud, and show that no possible actual injury has occurred to the defendants from the manner in which the deposition was taken. In so clear a case, we think it was not error to refuse to suppress the depositions on that ground.
Preliminary to the trial the defendants made a motion to strike out the report of one John S. Hord, a surveyor appointed by the court to make a survey of El Perdido and La Blanca grants. The motion was based, in effect, upon two grounds; first, that in making his survey the surveyor had not followed the directions given him in the order of the court; and second, that the report was argumentative, based upon hearsay, and inconsistent. There is much in the report that is objectionable; but that may have been stricken out without destroying the instrument itself. In such case the proper practice is to suppress the objectionable parts, and not to reject the whole report. We think also that the report shows that the surveyor, in making the survey, attempted to ascertain the lines of the two grants as actually run by the *Page 91 surveyor who made the original surveys, and that therefore he did his work presumably to the best of his ability in accordance with the order of the court which directed the survey to be made. We conclude, therefore, that the court ruled correctly in refusing to strike out the whole report.
But in their motion the defendants also requested the court to strike out specific portions of the report, and this part of the motion was also overruled. The portions so objected to are as follows:
1. "I have carefully examined the original grants by the State of Tamaulipas, containing original surveys by Lic. Antonio Canales, to the following surveys: El Perdido, Alameda, Encino del Poso, and Encantada. I have examined in the Starr County records the record of the La Blanca grants and survey by Canales, and have also had for my information and guidance certified copies of the Rucia, Vargas, and Santa Quiteria surveys, and also survey and field notes of surveys made by Isaguirre, Blucher, Cock, Prandy, and others, and have carefully and accurately located every natural and artificial landmark referred to in said previous surveys.
2. "All of the above surveys made by Canales were contemporaneous, and I find that he invariably certifies to having corrected the magnetic variation of his needle and having made rectangular surveys. Isaguirre (Carvajal), Salinas, Prandy, and others, on the contrary, in surveying the La Blanca and Perdido tracts, ran lines partly magnetic and partly between the true and magnetic, while no Spanish or Mexican surveyor was ever known to do so in making original surveys in unlocated lands.
3. "These three stones [the stones marked G H J, as found in exhibit B] are recognized by owner in adjoining tracts as corner stones, and, agreeing as they do so nearly with the original calls, both as to course and distance, have evidently not been tampered with.
4. "The tree [referring to a tree known as Encino del Poso] has old marks almost obliterated on its south side. It has been dead apparently for years, but its roots are still firmly imbedded in the land. It stands alone on the prairie in a large hole from which it derives its name, and is the largest tree and best known landmark in all that section. Canales' plat and field notes, both of La Blanca and Encantada (Encino del Poso), show it to be a line tree between the two tracts.
5. "Isaguirre (Carvajal) in endeavoring to resurvey La Alameda, states that he began at the southeast corner M, at a post and rock planted [sic] in prairie, and ran north 6 degrees 59 minutes east 8098 varas to G. As a matter of fact, a line running from M would require a departure from the true meridian of over 9 degrees to the east to connect with the stone at G (red), at G (blue) over 500 varas to the west. The stones G, H, and J he similarly misplaces at H, J, and *Page 92 G (blue). He then runs for west line of La Alameda and east line of Encino del Poso from J (blue) to F (red), passing several hundred yards to the west of a live oak at R, called Encino del Poso, a most unaccountable oversight, as the tree is called for in the original grants of both Encino del Poso (Encantada) and La Alameda as a line tree between them, and is so placed on the maps by Canales, and is a most notable and well known landmark. It is therefore apparent that, whichever corner of Isaguirre's survey may be taken as a starting point, it would be a mathematical impossibility, using his courses and distances, to connect with any other corner stone in its true location on the ground, and if the Encino del Poso tree be taken as a starting point and Isaguirre's courses followed out, not a single line will be found where located by him. The plat in the Alameda grant shows Tio Guerritas Motts (marked U) to be a considerable distance within the tract, whereas Isaguirre's survey places them on the eastern edge. On plat marked exhibit B will be found Isaguirre's attempted resurvey of La Alameda and La Blanca tracts (traced blue), and I have been thus particular in demonstrating how Isaguirre laid off these two tracts, for the reason that the La Blanca, with the bite G H J at its northeast corner, and Encino del Poso tree (R) on its western boundary line, must be the guide in determining all the boundary lines and corners of adjoining tracts, and when Isaguirre resurveyed La Alameda he planted a stone at M 1519 varas west of a true south line from G, using that as a starting point. He failed to connect with the stones G H J, and totally ignored the Encino del Poso tree at R as a line tree. Subsequently he resurveyed La Blanca, making its north line conform to the south line of his erroneous survey of La Alameda, and this gave rise to all disputes as to the true boundary line between El Perdido and La Blanca grants. Hesse, Prandy, and others have made surveys of La Blanca in accordance with Isaguirre's field notes, while Blucher and Cock have endeavored to follow in the footsteps of Canales in the original survey. La Encantada and Encino del Poso have together, as granted, a distances of 18,000 varas (360 cordeles) on their southern boundary. From two stones at A to stones at H there is a shortage of 1443 varas, and if that be taken as a southeast corner of Encino del Poso to conform to Isaguirre's survey of La Alameda, it would fall short several thousand acres. From A to L there is an excess of but 158 varas, making a surplus, it is true, in Encino del Poso tract, but only about one-eighth of what the shortage would be if F, and not L, be considered as the southeast corner of Encino del Poso. Furthermore, the Luseta Quiteria has been surveyed with its western line at G N O, and the distance from F to N is correct according to the La Blanca grant, and gives that tract and La Alameda their full quantity. In view of all these facts, I have adopted the line run by Blucher between the Perdido and La Blanca tracts as their true boundary division line. *Page 93 This line is a true north and south line F to S, crossing La Blanca line A T."
Each of the foregoing parts of the report as separately numbered was specifically excepted to in the motion, and the court was asked to strike it out. We are of the opinion that, with one exception, so much of the report as was specially excepted to should have been suppressed.
The provisions of our statute in reference to a survey and report made under an order of court in actions of trespass to try title are meager. It merely empowers the judge, either in term time or vacation, to order a survey to be made and reported under oath, and provides that the report, if it be not rejected for good cause shown, shall be admitted as evidence on the trial. Rev. Stats., art. 4800. We think it clear that it was not intended that a surveyor appointed in pursuance of this statute should be empowered to determine any question of fact, or to gather up and report evidence for the guidance of the court or jury. His simple duty is to go upon the land he is required to survey with a copy of the field notes by which he is to be guided, to search for and survey its lines and corners, and to report to the court the result of his work — that is to say, to report such natural and artificial objects as indicate the true location of the lines and corners as he may have found upon the ground, and the course and distance of such. When no such objects can be found, then he should so report. To enable him to find the lines and corners he may seek his information from any source he may see proper, but such information, if derived from documents other than those by which the court directs him to make that survey, is secondary; and if from witnesses, is hearsay; and in either event should have no place in the report.
The facts stated in that part of the report first specially excepted to were wholly irrelevant to any issue before the court, and should have been stricken out. What documents he may have examined in seeking information to enable him to find the lines and corners was unimportant, and served only to incumber the report.
The facts stated in the second part of the report excepted to may have been pertinent if proved by competent evidence; but they could not be proved by a surveyor's report.
In regard to the third portion, it is sufficient to say that the person who recognized the stones should have been called to testify to the fact, if relevant. It was not competent for the surveyor to make the fact of his recognition a part of his report.
The portion of the report numbered 5, as above, consists of statements of facts which, if evidence at all, should have been shown by the documents referred to and by witnesses, as well as of arguments and inferences from the facts stated. Upon the principles announced, it should have been stricken from the report. *Page 94
The objections as to the statements with reference to the tree known as Encino del Poso were not well taken. The facts were such as may have been ascertained by a surveyor from his own inspection while making the survey, and were proper to be reported. So much, however, of that part of the report as states the contents of Canales' plats and field notes of La Blanca and the Encantada grants, were best shown by the plats and field notes themselves, and if excepted to by itself alone, should have been excluded.
The field notes of contiguous surveys are frequently most material evidence in settling a question of boundary, and we are aware that it is the practice of surveyors appointed by the court to state in their reports the contents of such field notes. They are usually well known to both parties, so that no question arises as to the facts, and the statement is permitted to stand without objection. In such cases the practice is convenient and saves unnecessary labor and expense; but it can not change the law.
In this connection we will consider appellants' first assignment of error, which is the last presented in their brief. It complains of the action of the court in rejecting a report of the survey of the land in controversy made by one Prandy, county surveyor of La Salle County, by virtue of an order of the judge. The order directed a survey of the El Perdido and La Blanca grants, in order to ascertain the true boundary line between the two tracts; appointed the surveyor of the county last named to make the surveys, and required him to "be guided by the field notes, etc., of the original surveys, and other information that may be useful and obtainable to aid said surveyor in arriving at the true location of said boundary line." The report consists, first, of the field notes of the two surveys respectively; and second, of remarks in justification of their correctness. Taking the whole report together, the field notes seem to us a mere statement of the surveyor's conclusions upon such evidence as was accessible to him as to the true location of the lines and corners of the two surveys, and not a description of the objects, natural and artificial, found upon the ground while surveying the lands according to the field notes of the original surveys, as directed by the order of the court. The reports resemble rather a referee's statement of his conclusions of facts than a detail of evidence. Moreover, it shows that instead of taking the field notes and the plats of the original surveys as his guide, he based his work upon "the field notes of a survey of La Blanca made in 1853, and approved by" one Berna, a district surveyor. This not only shows that he disregarded the order of the court, but also strengthens the conclusion that he mistook his function and did not report the evidence tending to establish the line in dispute found upon the ground while making the survey, but gave merely his opinion as to the true location *Page 95 of the lines and corners of the surveys, with a description of objects by which they are to be identified. We conclude that the court correctly rejected the report.
During the course of the trial, the plaintiff asked a surveyor the following question: "From your experience in resurveying the surveys and grants originally made by Canales, state what the character of his work as such surveyor is. Is it not correct work as such surveyor? Or, in other words, in your resurveys of the grants originally surveyed by Canales, did you find his work correct upon the ground, and does the variation of the needle call for course and distance, marked natural and artificial, as called for and described by him in his original surveys and plats and field notes of said surveys?"
The question was objected to by defendant, but the objection was overruled, and the witness answered: "I find it (meaning the work of Canales) very good." We think the court did not err in its ruling. The fact that Canales' surveys were generally found correct was a circumstance tending to show that the surveys in controversy were correctly made. He made the original surveys of both grants. Whether Canales' surveys were usually correct or not could be proved by a surveyor who had resurveyed lands originally surveyed by him.
Upon the trial the plaintiff was permitted to read in evidence, over the objection of defendant, an examined copy of the original grant to one Pelar Zarate of a survey adjoining La Blanca, known as the Alameda grant. The original was proved to be in the possession of Juan Zarate, who lived in a county different from that in which the case was tried, and who had refused to surrender possession to the plaintiff. Plaintiff made affidavit that he could not procure the original. No proof was offered to show the execution of the original instrument; but the plaintiff claimed that the copy should be admitted without proof, because the original was an ancient instrument. It was shown that Juan Zarate was in possession, holding the land as one of the heirs of the grantee, and that he had been residing there for three years. Whether he had resided upon it for a longer period or not did not appear. The grant, as shown by the examined copy, was dated in 1835, but no other evidence was introduced tending to show its age or authenticity. We have found no case in which it has been ruled that an examined copy of an instrument can be admitted in evidence without proof of the execution of the original, however old the instrument may purport to be. When a deed has been duly recorded over thirty years, and the original has been lost, a certified copy has been admitted without proof of the original; but this was by force of the statute. Holmes v. Coryell, 58 Tex. 688.
We are of the opinion that the evidence was not sufficient to authorize the admission of the examined copy in this case. It being out of *Page 96 the power of the plaintiff to produce the original, and the instrument being so old as to render direct evidence of its execution improbable, we are of the opinion that he should be permitted to show its execution by circumstances. Long possession under it, the payment of taxes upon the land, the marks of age upon the paper itself, are all circumstances which might be looked to. Indeed, we think it possible to make a case under which the copy would be admissible as the copy of an ancient instrument, but certainly it should require much stronger corroborating proof than when the original is produced before the court, bearing the appearance of age and authenticity upon its face. If the document in question be genuine, some better evidence of its authenticity can certainly be produced. Juan Zarate, it would seem, should know the facts bearing most nearly upon the question of its genuineness, and his testimony should be procured.
There was no error in giving the charge complained of in the nineteenth assignment of error. It is correct as a matter of law, and was applicable to the facts of the case. Nor do we think the court erred in refusing the charge set out in the same assignment. The words the court was asked to construe required no construction. They were doubtless well understood by the jury.
The charge the refusal of which is complained of in the twentieth assignment of error, was calculated to give undue importance to one call in the grant over others of equal dignity, and was therefore misleading. Neither, in our opinion, did the court err in refusing to give the special charge set out in appellants' twenty-first assignment of error. Acquiescence of the plaintiff in the boundary line claimed by defendants (if he did so acquiesce) under circumstances not amounting to an estoppel, was a mere fact to be considered by the jury in determining the question of boundary. Its weight was a matter to be argued by counsel for the defendants; but it was not the duty of the court to aid their argument. The evidence bearing upon the question having been admitted, the jury doubtless knew they were at liberty to consider it.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered January 22, 1892. *Page 97