
    Croft v. Rains.
    In an action of trespass to try title it is sufficient to describe the premises by reference to the adjoining surveys and the map of the county.
    The defondant cannot object to the petition that it sets out matter of evidence where the facts averred show a right of action.
    A party is not precluded from his right to amend by announcing himself ready for trial before the issues of law are disposed of. (Note 91.)
    It cannot be objected, in a suit by a tenant in common, where there has been a partition since the commencement of the suit, that he seeks to recover on a title acquired after the commencement of the suit. (Note 95.)
    The tenant in common can sustain trespass to try title against a stranger.
    Where objections to evidence are such as the party by his silence may be deemed to have waived, as where they do not go to the relevancy or sufficiency of the evidence proposed to establish the matter of fact in quostion, it is well settled that they will not be considered by t-ne appellate court unless the grounds of the objections were assigned at the time of making them; and for the obvious reason that had this been done the party might, perhaps, have had it in his power to obviate them. (Note 90.)
    Objections to the form and manner of taking depositions cannot be taken orally at the trial. (Hart. Dig , art. 733.) (Note 97.)
    If the ground of objection to evidence is that it is secondary, it should be stated at the time when the objection .is made, and tho bill of exceptions should show that it was so stated.
    In order that a location and survey should bo valid it is not necessary that the surveyor should be furnished with aoercifieate of the recommendation of the certificate; it is sufficient if the fact be proved that the certificate was recommended.
    Appeal from Cherokee. The plaintiff (appellee) in March, 1849, brought his action of trespass to try title to a tract of land containing nine hundred and sixty acres, described in his petition by a reference to.the comity map and the adjoining surveys. In an amended petition, filed in September, 1S50, he alleged that at the date of the trespass complained of he had an undivided interest of six hundred and forty acres in the tract of land containing nine hundred and sixty acres, described in his original petition, and surveyed upon the head-right certificate of Jacob Garrett in 1841. The original survey was described by reference to the county map anti the field notes of the survey which were set out in the petition. He further alleged that he purchased his interest of six hundred and fort}'- acres of the said G-arrett in 1843; that it was to be set apart to him according to quality and quantity; that in 1848 lie obtained from the District Court of Nacogdoches county an order of survey; that in June, 1849, his portion of the tract was set apart to him and surveyed, (giving tlie field notes of the survey;) and that in December, 1849, tlie said District Court decreed to him the part so surveyed, repeating his allegations of a trespass by the defendant. Tlie plaintiff further amended his petition, averring the loss of Garrett’s certificate and the original field notes of his survey, and praying that he he permitted to supply their loss upon the trial by secondary evidence. The defendant excepted to the original and amended petition, and answered to the merits. The court overruled tlie exceptions to tlie petition; and after the parties had announced themselves ready for trial permitted the plaintiff to amend by averring that Garrett’s conditional certificate was in the General Land Office, to wliicli the defendent excepted.
    The plaintiff introduced in evidence a transcript from the record of the Board of Land Commissioners of San Augustine comity, showing the issuance to Garrett of a conditional and an unconditional certificate for 1280 acres of land in 3838, and also a transcript from the records and a certificate of the cleric of tlie county court of the same county, showing the recommendation of Garrett’s certificate by the commissioners under the act to detect fraudulent land certificates, to the reading of which the defendant objected, but his objection was overruled. The plaintiff also offered in evidence the depositions of the Commissioner of the General Land Office, to the reading of which tlie defendant objected, on the ground that they had not the proper indorsement of the postmaster where they were mailed or of filing by the cleric. The court overruled the objection. The plaintiff also read in evidence the county map, on which were delineated the surveys of lands, and proved by the testimony of' the county surveyor that the survey appearing on the map as made for “T. Garrett,” was in fact made for Jacob Garrett; or that the field notes of Jacob Garrett, which were on record and in evidence, covered the same, to which also the defendant objected, and his objection was overruled. The plaintiff gave in evidence a copy of the decree of the District Court of Nacogdoches county, referred to in his petition, and the bond for title from Garrett to himself, with a certificate of the proof of its execution before a notary public of Travis county, and of its having been recorded in Cherokee county, with certain other matters of evidence^ to each of which in their order the defendant objected, and his objections were overruled.’
    There were various instructions asked and refused, upon which the court ruled in effect that the plaintiff might maintain the action, though the land was not partitioned between himself and Garrett, and his portion set apart to him, until after the commencement of his suit, and that it was not necessary for the plaint ill'to prove expressly that the certificate of Garrett was accompanied by the certificate of its recommendation by the Board of Land Commissioners at the time of making the survey; that this might be presumed from the fact that it had been duly recommended as legal and genuine and returned with the field notes of the survey to the General'Laud Office.
    There was a verdict and1 judgment for the plaintiff, and the defendant appealed.
    
      Donley %• Anderson, for appellant.
    
      Shanks £*• Bonner and Davis, for appellee.
   ■Wheeler, J.

The assignment of errors and the argument of counsel for the appellant bring hr question the rulings of the court upon the sufficiency of the petition and' the admissibility of evidence and in the instructions to the jury.

It is objected to tlio petition that it is not sufficiently certain in its description of tlie premises. If tlie original petition was obnoxious to this objection as amended, it certainly is not. Tlie field notes are set out and the premises described by reference to the adjoining surveys and to the map of the county, and it is not perceived in what respect greater certainty of description is or can be desired.

It is further objected that the petition sets out matter of evidence. This may be true; the petition may be liable to the objection that it needlessly apprised tlie defendant of the evidence of title intended to be relied on at the trial. But surely this cannot, be canse of complaint to the defendant, nor can it be objected to the legal sufficiency of tlie petition when the facts averred show a right of action. It may not have been judicious in the pleader, lie may have taken upon himself sin unnecessary burden of proof, or have incurred the risk of a variance between iiis averments and proof. But this petition cannot be adjudged insufficient for this cause.

Again, it is objected that the court permitted the plaintiff to amend after the parties liad announced themselves ready for trial. This objection may he answered by a reference to our opinion in the case of Jennings v. Moss. (4 Tex. R., 452.)

Another objection is that the plaintiff seeks to recover on a title acquired after the commencement of tlie suit. This objection is not well founded in fact. Tlie plaintiff’s interest was acquired by purchase in 1843, long before the commencement of the suit. Before partition between tlie plaintiff and ids co-tenant in common he might well maintain this action. 1-Iis amended petition, filed after the partition by which his interest was severed and set apart to him, charges the trespass to have been committed upon the land so set apart to the plaintiff. Iiis right to recover, therefore, was not affected by tlie. partition. The plaintiff’s interest and right was acquired not by tlie act of partition hut by his purchase.

There is nothing in the several rulings of tlie court upon the admissibility of evidence which will authorize a reversal of the judgment. Except as to the depositions of the commissioner, Smith, the grounds of the objection are not stated, but tlie objections are general. Where objections to evidence are such as tlie party by his silence may be deemed to have waived, as where they do not go to tlie relevancy or sufficiency of the evidence proposed to establish the matter of fact in question, it is well settled that they will not be considered by tlie appiellate court unless the ground of tlie objection was assigned at tlie time of making it; and for the obvious reason, that had this been done the party might perhaps have had it in his power to obviate tlie objection.

Tlie depositions of the commissioner appear to have been filed more than two months before the trial, and the objection to their introduction was made orally at the trial. It was not then entitled to be heard, for the reason that it was not made at the time or in the manner prescribed by the statute. (Hart. Dig., art. 733.)

If tlie defendant’s objection to tlie secondary evidence offered at the trial was that the uou-produetiou of the better evidence had not been accounted for, he should have indicated this as tlie ground of his objection at the time. Hot having (lone so, tlie objection comes now too late, and it is not necessary to inquire whether, if rightly taken, it was well founded in fact.

It certainly was competent to show and explain tlie mistake in the initial of the Christian name of the grantee in the entry and delineation of his survey on the county map ; and it is not perceived what other or better evidence than, that offered could have been adduced for that purpose.

The objection to the rulings of tiie court in the instructions to the jury not already disposed of in considering tlie sufficiency of tlie petition, may be answered by a reference to our opinion in the case of Howard and Wife v. Perry. (November Term, 1851, 7 Tex. R., 259.) The certificate having been duly recommended as legal and genuine, it was not incumbent on the plaintiff to prove that the certificate of such recommendation was attached to or accompanied it in the hands of tho surveyor at the time of making the survey. And there is no error in the instructions.

There are various other objections urged to the action and rulings of the court upon tho trial, hut not of a character to require a particular notice.

We are of opiuion that there is no error in the judgment, and that it he affirmed.

Judgment affirmed.

Noth 94. — DeWitt v. Jones, 17 T., 620.

Noth 95. — A plaintiff who at- the time of instituting his suit had a good prima fade title had ii right to protect himself by bringing up a conflicting outstanding title, even after issue joined. (Martin v. Parker, 26 T., 253.)

Note 96. — Watrous v. McGrow, 16 T., 506; Grassmeyer v. Beeson, 18 T., 753; Hooper v. Hall, 30 T., 164; Presley v. Holmes, 33 T., 476.

Note 97. — Hagerty v. Scott, post 525; Bracken v. Neill, 15 T., 109.  