
    John Timon v. John Whitehead.
    (Case No. 1485.)
    1. Former judgment in- bar.— A deed was made which recited that it was upon condition that a suit then pending between the vendor and a third party should be determined in the vendor’s favor. The suit was determined in the district court against the vendor, and within two years, but before any steps were taken to carry the case to the supreme court by appeal or writ of error, that deed was offered as evidence of title by the vendee in a suit for land brought against him by such third party. Held,
    
    (1) A charge of the court directing the deed to be disregarded by the jury was proper.
    (2) The plea of outstanding title in the vendor could not avail; the judgment was a bar in any suit between the plaintiff and one claiming under the vendor involving the same subject matter.
    2. ’ Estoppel.—The congress of the republic of Texas passed an act in 1845 requiring the owners of land in San Patricio county, whose lands bad not been correctly marked and designated, to have them resurveyed within two years. The owner of a Spanish grant, after the two years had expired, had his land resurveyed in 1848, the corners marked on the ground, and the resurvey recorded in the book of resurveys in the county surveyor’s office, and delineated on the map. In a suit between the vendee of that owner of the’grant and a patentee under recent location, claiming, under patent from the state, land outside of the’limits of the grant according to the resurvey, but claimed by the vendee to be within the calls of the original grant, held,
    
    (1) That the vendee under the grant, claiming in privity of estate to the owner of the Spanish grant, who marked and recorded his boundaries, was estopped from averring as against the subsequent locator that other and different lines than those marked and recorded inclosed the land.
    (2) This case distinguished from Love v. Barber, 17 Tex., 11, and Saunders v. Hart, 57 Tex., 8.
    (8) The surveyor making the resurvey will be presumed to have done his duty.
    (4) The record of the resurvey, showing that the work was done at the instance of the owner, gave notice to the world of the extent of his claim.
    (5) The resurvey and map of the old grant remaining in the office for over thirty years before the location on which the patent issued, showed an acquiescence in their correctness by the owner of the grant and his vendees.
    (6) The record of a survey, when properly made in the surveyor’s office, is notice to the world of the lines and boundaries claimed by the owner of the land.
    Appeal from. San Patricio. Tried below before the Hon. D. P. Marr. ,
    This "was a suit of trespass to try title, brought by Whitehead against John Timón, to recover a third of a league of land described in a patent issued to Hiram Riggs. Timón claimed that the land was part of a colonial grant issued to Juan de la Garza.
    
      It was admitted that the appellee, Whitehead, was the owner of whatever right was acquired by the patent to Eiggs, and that the appellant, Timón, was the owner of the Juan de la Garza grant of one league.
    Whitehead contended that his location was not in conflict with the Garza grant, either as originally surveyed or as resurveyed for John Young, one of Timon’s vendors; and further claimed that if there should be any conflict with the Garza, as originally surveyed, that by the resurvey made for John Young, under whom appellant claimed, the appellant was estopped from claiming any land not embraced in the resurvey.
    Appellant also contended that if the land called for in appellee’s patent was not in conflict with the De la Garza grant, that it was in conflict with the ejidos or town tract of San Patricio.
    Appellee contended that the land was not in conflict with the town tract, and that this question was res adjudieata, having been three times settled by judgment of the district court; first, between the town of San Patricio and one James McGloin; second, in a suit by the town against this appellant and others, being suit Yo. 230 of docket of district court of San Patricio county; and third, in a suit between the town of San Patricio and the appellant and others (same parties as last suit), and Yo. 207 on docket of district court.
    Appellant offered a deed by T. H. O’Callaghan, as mayor of San Patricio, to Timón. It was objected to as without consideration and void, and ordered to be disregarded. The paper recited that the land was in litigation, and the sale and payment for it was conditioned on the determination of the suit then pending in favor of the town of San Patricio, and the only consideration mentioned in the document was that “said John Timón, having executed his written obligation to pay for the land the sum of one dollar for each and every acre of the same, on the rendition of final judgment in favor of the corporation in the suit now pending as aforesaid.” Final judgment was not rendered in favor of the corporation, but in favor of Whitehead and others.
    The resurvey of the Garza grant, and its registry and being mapped, are sufficiently stated in the opinion.
    The court charged the jury: “The defendant, by his pleading, admits that he was in possession of the land sued for, and he claims the same under two purchases, one under the Juan de la Garza grant, and the other under the corporation of San Patricio, through deed by Thos. O’Callaghan for himself and as mayor of the town of San Patricio. As to this last purchase, the jury are instructed that the defendant, having made such purchase pending a suit for the land by said corporation of San Patricio against the plaintiff Whitehead, and that suit" having been decided in favor of said plaintiff against the corporation, the defendant is now estopped from claiming title to the land under the corporation of San Patricio, and his said deed from O’Callaghan" is invalid, because the condition upon which it was to vest title in defendant has not been shown to have happened, and consequently the jury should find for the plaintiff, unless they find, from the evidence before them, that the land mentioned in plaintiff’s patent lies within the Juan de la Garza survey; and if the jury believe, from the evidence, that the land patented to plaintiff is within the limits of the Juan de la Garza survey as originally made, they will find for defendant, unless they find from the evidence, and under the charge of the court, that the defendant, by some act of his or those under whom he claims, is estopped from claiming the land patented to plaintiff.”
    The fourth clause of the charge was as follows: “ If the jury believe, from the evidence, that Johp Young (one of the vendors of defendant) had the lines of the De la Garza grant established in "1848 by an actual survey, and if the boundaries- so made were accepted by him as the true and real boundaries of said grant, and if this survey was duty of record in the surveyor’s office at the time that plaintiff located the land in controversy, and by reason of such survey or resurvey the plaintiff was induced to locate, and did locate, the land in controversy, in good faith, believing it to be vacant as a part of the public domain, then, if such facts are shown, the defendant would be estopped from claiming the land so located by the plaintiff, and your verdict should be for plaintiff if the land lies out of this survey of 1848. But if the jury believe, from the evidence, that plaintiff was not in fact misled or deceived in locating the land by this survey of. 1848, then defendant would not be estopped from asserting title to the land under the De la Garza grant as originally made.”
    Verdict and judgment for plaintiff Whitehead. •
    
      Pat O'Docherty, for appellant.
    I. The first error assigned is that the court erred in its charge to the jury a’s to what would constitute an estoppel, and as to the law applicable thereto. Burleson v. Burleson, 28 Tex., 415, and authorities there cited; Love v. Barber, 17 Tex., 312; Williams v. Chandler, 25 Tex., 11; Page v. Arnim, 29 Tex., 69.
    II. The court, in withdrawing from the consideration of the jury by its charge, the deed made by T. H. O’Callaghan, as mayor of San Patricio and for himself, to the defendant, committed error.
    ... V. The fifth error assigned is as to admitting in evidence the copies of the judgments in San Patricio and Nueces counties, over the objections of the defendant; the judgments in San Patricio county not being final judgments, and the judgments in Nueces county having no reference to any of the issues in this case.
    As to the first error assigned, it is evident that the court misdirected the jury as to what would constitute an estoppel. Before a party can lie estopped by an act done, he must be shown to have done the act, set up as an estoppel, with a full knowledge of his rights, and the party asserting the estoppel must show that he ivas deceived by such act. The effect of an estoppel is to prevent the assertion of an unequivocal right, or preclude a good defense, and justice demands that it should not be enforced unless substantiated in every particular. The ground upon which the estoppel proceeds is fraud’ actual or constructive, on the part of the person sought to be estopped. What will amount to a suggestion of falsehood, or the suppression of truth, may be difficult to determine in all cases; but some turpitude, some inexcusable wrong, that constituted the direct motive, .or induced the outlay or purchase, is necessary to give silence or acquiescence the force of an estoppel. Hence the ignorance of the true state of the title on the part of the purchaser must concur with wilful misrepresentations on the part of the person estopped. If the real owner knowingly permit a third person to purchase property Avithout notice of his claim from the apparent owner, he will be estopped from asserting his title against such innocent and Iona fide purchaser. But in order to apply an estoppel, it is indispensable that the party standing by and concealing his rights should be fully apprised of them, and should by his conduct or gross neglect encourage or influence the purchase; for if he be ignorant of his rights, or any fact connected Avith them of importance, or if the purchaser knew them, or if his acts, silence or neglect do not mislead, or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. Rights can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert them. Noav Avhat is the evidence as to any act of the defendant, or of those under XAffiom he claims, by which he should be estopped from asserting title to the land claimed by the plaintiff in this action as being a part of the Juan de la Garza league? It is only this: that on the records of the office of the district surveyor of the land district of San Patricio a resurvey of the Juan de la Garza land appears, made at a place different from where the land xvas originally located.
    How, or for what reason, the resufvev of this land Avas made, it is impossible at this date to say; but from the many fraudulent transactions in land matters, especially in western Texas, it is safe to say that it was, if made at all, done with a fraudulent intent, and for the purpose of confusing the boundaries of the adjacent lands, and thus leaving vacancies between adjacent grants, so that location could be made, as in this instance. Will the court so enlarge the doctrine of “ estoppel” as to assist these parties in perpetuating a fraud?
   Willie, Chief Justice.

The appellee claimed the land in controversy under a patent to Hiram Riggs, dated July 10, 1879, and appellant claimed it under two Mexican grants, one to the town of San Patricio, of four leagues as an ejidos, and the other of a league to Juan de la Garza. The validity of these several original titles was not in dispute; and a regular chain of title to the Riggs survey was shown in appellee, and to the Juan de la Garza grant in appellant. The conveyance from the corporation of San Patricio to Timón of a portion of its ejidos was made upon condition that a suit then pending, in which the corporation was plaintiff, an& the firm of Coleman, Mathis & Fulton, together with John Whitehead, the appellee, were defendants, in which the title to the land conveyed was involved, should be determined in its favor. It was proven that in said suit judgment final had been rendered in the district court in favor of defendants, and that up to that time no steps had been taken to remove it for revision to the supreme court.

It is assigned for error that the court should not have charged the jury to disregard said deed to Timón. This assignment is not well taken, for he purchased pending the suit brought by the city for the land, with full knowledge of it, and in effect agreed that he should receive no title by the conveyance unless that suit should be decided in favor of his grantee, which it was not. It is of no importance that a writ of error from the judgment of the district court could be sued out, the two years of limitation not having expired. Ho steps had then been taken to obtain such writ, and the judgment was at the time of the trial, for all purposes of the cause then at bar, a final judgment.

As Whitehead, the appellee, was a party to that suit and judgement, the plea of outstanding title in the corporation could not avail. The judgment was a bar to any suit between him and one claiming under the corporation involving the same subject matter. The question of title to the land on which the Riggs certificate was located, as between him and1 the corporation, was res adjudioata, and Timón, as the assignee of San Patricio, could not litigate it again in this action.

The decision of this appeal must turn upon the charge of the court on the subject of estoppel, regardless of all proof as to the true boundaries of the De la Garza grant, and of whether or not they conflicted with the Biggs survey. For the verdict of the jury might have been, and doubtless was, influenced by this charge.

This charge was as follows: “If the jury believe, from the evidence, that John Young (one of the vendors of defendant) had the lines of the De la Garza grant established in 1848 by an actual survey, and if the boundaries so made were accepted by him as the true and real boundaries of said grant, and if this survey was duly of record in the surveyor’s office at the time that plaintiff located the land in controversy, and by reason of such survey or resurvey the plaintiff was induced to locate, and did locate, the land in controversy, in good faith, believing it to be vacant as a part of the public domain, then, if such facts are shown, the defendant would be estopped from claiming the land so located by the plaititiff, and your verdict should be for plaintiff if the land lies out of this survey of 1848. But if the jury believe, from the evidence, that plaintiff was not in fact misled or deceived in locating the land by this survey of 1848, then defendant would not be estopped from asserting title to the land under the De la Garza grant as originally made.”

The rule of estoppel by conduct is laid down as follows: “ When one by his conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is concluded from averring, against the latter, a different state of things as existing at the same time.” Big. on Estoppel, 479. This is the exact language of Lord Denman in the case of Pickard v. Sears, 33 Eng. C. L. Rep., p. 117, and has been followed universally by the highest courts of America, including our own supreme court in the case of Love v. Barber, 17 Tex., 312, and others since decided, as expressive of the whole doctrine on the question.

An analysis of the charge will show that it fully meets the requisites of this rule. It requires, first, that Young, under whom Timón claimed, should have had the lines of the De la Garza grant established in 1848. This action on Young’s part would not of itself have prejudiced his right to claim any other boundaries, if nothing was done to show that he accepted them as the correct boundaries of his land. Love v. Barber, supra. But the charge goes further. and requires that Young should have accepted these lines as the true boundaries of his grant. Still some of the elements of an equitable estoppel are lacking. The extent of Young’s claim, as defined by these"boundaries, must have been brought to the knowledge of the party pleading the estoppel. Hence the charge requires further, that the jury must believe that the survey was duly recorded in the surveyor’s office at the time appellee located the land in controversy. This brings the character and extent of Young’s claim to the knowledge of the world, as much so as if directly stated by Young, and is calculated to influence the conduct of parties seeking vacant land to locate upon in San Patricio county. The charge, as a last element of the estoppel, requires that' the jury should find that appellee was induced by this conduct of Young to locate, and did locate, the land in good faith, believing it to be vacant. This is that change in position induced by the conduct of another so necessary to constitute an estoppel.

Here, then, we have all the necessary constituents of an equitable estoppel.' The conduct of Young in having his land resurveyed and the new field notes placed upon the record, was sufficient to make the public believe the existence of the fact that the land included in those field notes was all that he claimed as embraced in the Garza grant. Informed of this by an examination of the records, Whitehead alters his previous position so far as to bécome a locator upon land not included in Young’s .recorded boundaries. Shall one claiming in privity of estate .to Young be allowed to aver against Whitehead that a state of things different from what Young had placed upon the records existed at the time, viz., that other and different lines inclosed the land?

This case differs in important particulars from that of Love v. Barber. In that case the surveyor testified that he did not return the field notes to be recorded, nor was he instructed to record the same as an official act. That the survey was not made as an official act, to be returned and recorded in his official capacity. It was under a private employment that he resurveyed the land. And in that case the surveyor was employed to resurvey' and remark the old lines, and did not perform his duty, but changed thejn and made new corners so as to contract the owner’s boundaries, and the work was repudiated by his employer.

Wo one seeking vacant land for location would be guided by surveyor’s marks alone, but would look to the records of his office for the true facts. A record of a survey, when properly made in the surveyor’s office, is notice to the world of the lines and boundaries claimed by the owners of the land. From these surveys the county map is made. All persons liaxfing their suiweys made part of such records must know that parties in search of vacant lands for location will be guided by them. In other xvords, xvill be induced to change their position, and xvill incur loss and unnecessary expense, if such records do not speak the truth.

The case of Saunders v. Hart, 57 Tex., 8, differs in almost every essential from the present one. It xvas held there, that the act of the surveyor in running the lines should have been authorized by the individual against xvhom the estoppel was pleaded in order to bind him, or he must subsequently have ratified it after full knoxxdedge of the facts. “ Long acquiescence,” says the court, “ might be evidence of such ratification, and if, in the meanxvhile, the line thus established had been acted upon by an innocent third party under such circumstances that his rights xvould be materially prejudiced should the line be subsequently changed, it might bind the true oxvner by estoppel.” The charge of the court in the present case brings it exactly xvithin this rule.

In the case of Saunders v. Hart, the survey made at the request of Tucker gave him more land than did his original survey. The estoppel xvas claimed, not against him, but against the state of Texas, upon whose land this nexx survey encroached. The only ground of estoppel xxras acquiescence on the part of the state in the recorded lines. Whilst Tucker might have estopped himself from claiming beyond such lines, he could not by his act estop other parties claiming in opposition to them. Iloxvever, it xvas proven that the state repudiated these new boundaries so soon as made knoxvn to the proper authorities. Finally, the decision xvas rested on the ground that the doctrine of estoppel did not apply ordinarily to a state, as it does to individuals. Further comment on this case is unnecessary, as it is so clearly different in all its aspects from the one noxv under decision.

Hpon the whole, we conclude that there is no material error in the charge. Did the facts of the case xvarrant it? On the trial of the cause James Gaffney, the then county surveyor, produced the records of the surveys of San Patricio county,, and amongst them was a resurxroy for John Young of the De la Garza tract, dated January 6,1848. It begins: “ Survey for John Young, assignee of Juan de la Garza, of txventy-six labors of land.” These field notes were in the resurvey book. This survey purported to be made by one Swing, the surveyor of San Patricio county at the time, and a map of the county made by him and kept in the office had the lines of the survey delineated on it according to said field notes. Gaffney’s map of the county was plotted in the same way. This ivas perhaps the best eATidence on the subject which could be obtained after a lapse of more than thirty years. The surveyor Avas presumed to have done his duty and to have acted in accordance with the statements of his survey. If so, the records themselves showed that the Avork Avas done at the instance of Young for the purpose of being recorded, and thereby giving notice of the extent °of his claim. The survey and the map had remained in the office for thirty years at the time the Biggs certificate was located on it, without objection on the part of the claimants of the Garza tract. This showed an acquiescence on the part of Young and those claiming under him in its correctness.

[Opinion delivered January 16, 1883.]

An act of congress was passed in 1845 requiring the owners of lands in San Patricio county, Avhere the lands had not been correctly and permanently marked and designated, to have them resurveyed within two years. These resurveys were to be regarded as the only true boundaries of the land. Although the two-' years had expired Avhen this survey occurred, it was doubtless the object of Young in making it, to accomplish the purpose mentioned in the act, which he could do by agreement, perhaps, as well as under compulsion. His survey was recorded in the same book with those made under the law, and we think should be binding upon those claiming in privity with him after so great a lapse of time.

Taking the facts altogether, we think there was evidence sufficient to warrant the charge of the court on the subject of estoppel, and that there is no error in the judgment, and it should be affirmed.

Affirmed.

Justice Stayton did not sit in this case.  