
    DENTON v. ENGLISH.
    (No. 5335.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    On Motion for Rehearing, Dec. 5, 1914.)
    1. Boundaries (§ 46) — Boundary Agreements — Fraud—Concealment oe Facts.
    If defendant, who knew that the state surveyor had surveyed and established plaintiff’s boundary line some distance east of a fence, failed to tell plaintiff of his survey in obtaining a boundary agreement fixing the boundary line at the fence, thereby depriving plaintiff of a quantity of land, he was guilty of fraud justifying a rescission of the boundary agreement, and hence, where there was evidence of this fact, the jury were justified in finding that the boundary agreement was procured by fraud.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 212-226, 249-251; Dec. Dig. § 46.]
    2. Evidence (§ 333) — Documentary Evi-DENC35 — Public Records — Surveys.
    Under Rev. St. 1911, art. 3694, providing that copies of the records of all public officers and courts certified by the lawful possessor thereof shall be admitted as evidence, article 5397, donating the excess in surveys to the public free school fund and requiring the Commissioner of the General Land Office to ascertain the existence and extent of such excesses and to provide and direct necessary surveys or corrected surveys, and the article providing that all hooks, papers, etc., required by law to be kept, filed, or deposited in any office of the executive department shall constitute a part of the archives of such office, the report of the state surveyor concerning a survey made by him of the boundary of a railway survey which made it apparent that there was vacant land adjoining such survey, which report was filed in the General Land Office, was an archive therein and was admissible in trespass to try title between private parties involving the location of such boundary line.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.]
    3. Evidence (§ 333) — Documentary. Evidence-Public Records — Surveys.
    Where a document containing a report of the acts of the state surveyor concerning a survey made by him also contained argument and opinions, such argument and opinions were not admissible in evidence in trespass to try title and should have been excluded if properly objected to.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.]
    4. Trial (§ 85) — Reception oe Evidence-Evidence Admissible in Part — Objections.
    Where in trespass to try title, though a report of the acts of the state surveyor concerning a survey made by him also contained, argument and opinions not admissible in evidence, the only objections to the report went to the report as a whole and did riot call the court’s attention to the objectionable parts thereof, no duty rested upon the court to exclude such objectionable parts, especially where the assignments of error on appeal attacked the whole report, since, when a writing is offered in evidence, parts of which are admissible and parts inadmissible, the whole writing should be admitted unless the inadmissible parts are specifically pointed out.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    5. Appeal and Error (§ 499) — Bill oe Exceptions — Matters to be Included — Objections to Testimony.
    Assignments of error complaining of the admission of testimony will not be considered, where the objections to the testimony are not stated in the bills of exception reserved to its introduction.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    6. Witnesses (§ 268) — Cross-Examination —Scope.
    Where, in an action involving a disputed boundary, a witness for defendant testified that he went with the county surveyor to properly locate surveys, plaintiff was entitled to cross-examine him as to his knowledge of the matter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    7. Evidence (§ 317) — Admissibility—Hearsay Evidence.
    In an action involving a disputed boundary, the testimony of a witness that he was with the surveyor who made a survey and that he found the corner of the survey by trees called for in the field notes was not hearsay, but related to knowledge gained by him on the ground.
    [Ed. Note. — F'or other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    8. Appeal and Error (§ 1051) — Harmless-Error — Admission oe Evidence.
    Such testimony could not have been prejudicial, where other witnesses testified to the same matters and such corner was unquestioned and was established beyond a reasonable doubt to be where such witness said he found it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    On Motion for Rehearing.
    9. Appeal and Error (§ 994) — Review — Questions oe Fact.
    The Court of Civil Appeals is not the judge of the credibility of the witnesses or the weight to be given their testimony; that prerogative belonging to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.]
    Appeal from District Court, Dimmit County ; J. F. Mullally, Judge.
    Action by Ed English against G. Denton. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 157 S. W. 264.
    W. H. Davis, of Crystal City, and R. E. Hannay, Jr., and R. P. Ingrum, both of San Antonio, for appellant. Vandervoort & Johnson, of Carizo Springs,' N. A. Rector, of Austin, and West & McMillan, of San Antonio, for appellee.
    
      
      For other oases see same topic and section NUMBER'in Dec, Dig. & Am: Dig. Key-No. Series & Rep’r' Indexes.
    
    
      
      For other cases see same topic and section NUMBER, in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   FLY, C. J.

This is, in form, an action of

trespass to try title to a strip of land 5,700 varas long by 491 varas wide, alleged to be off of the east ends of surveys 39, 46, and 51 in block 6, International & Great Northern Railway Company lands in Dimmit county, Tex. It is in reality a controversy over the location of a boundary line. Appellant claimed that the land in controversy did not form any part of the surveys named, and also pleaded a boundary agreement to fix the line along a certain fence between the lands of W. I-I. Warner on the west of the fence and the lands, of appellant on the east of the fence. Appellee pleaded, in reply to the allegations of appellant, the fraud of appellant in procuring the boundary agreement from him; that neither he nor Warner, his immediate vendor, knew anything of the true location of the line; and that appellant knew that the true bound-dary line was in a different place from that agreed upon. The cause was tried by jury, resulting in a verdict and judgment for ap-pellee. This is a second appeal, the former opinion of this court being reported in 157 S. W. 264, which is referred to as containing a full statement of the issues in this case.

The testimony justified the jury in finding that the boundary agreement was obtained by fraud and that the true boundary Une is 5,700 raras long and 491 Taras east of the fence at the north end and 475 Taras at the south end, and that it belonged to appellee, and was a part of surreys 39, 46, and 51 in block 6, International & Great Northern Railway lands.

The first and second assignments of error are oyerruled. Appellant knew that the state surreyor had surreyed the land and had established a boundary line different from the one in regard to which he after-wards procured the agreement from appellee. He knew of the boundary established by Leckie, who made the surrey for the state, because he applied for and purchased from the state the racant land made apparent by the surrey. He knew that the Leckie surrey threw the east lines of block 6 and block 10, 475 to 491 raras further east than they were thought to be when appellee built his fence, and he knew that when he obtained the agreement from appellee that the boundary line was not along the fence and that he was depriring appellee of about 490 acres of land. Appellee did not know that Leckie had placed the line where he did and appellant failed to disclose that fact to him. The eridence showed that the Leckie surrey fixed the true boundary line. The question of fraud was raised by the testimony and was properly submitted to the jury. This question was fully determined on the former appeal of this case. As said in our opinion:

“A failure to disclose a material fact affecting the subject-matter of a contract, howerer unintentional and blameless, often constitutes a sufficient ground for the annulment of a contract procured thereby. When there is intentional fraud connected with the concealment of the fact, equity will always relieve the party who has been injuriously affected by it. If, as appears from appellee’s testimony, appellant, who knew about the Leckie survey, concealed that fact from appellee and thereby induced him to sign the agreement as to boundary, his action would amount to such fraud as would justify a rescission of the contract.”

Appellant applied for and obtained the survey and knew where the lines were placed in that survey, but he told appellee that the true line was along the fence. 1-Iis attorney advised him to obtain the boundary agreement from appellee, and he did it. 1-Ie claimed to hare told appellee about the survey, but appellee denied it, and it is highly improbable that appellee would have agreed to a boundary which deprived him of nearly 500 acres of land, if he had known the same facts that appellant knew. The jury were justified in finding that the boundary agreement had been procured by fraud.

The report of the state surveyor was filed in the General Land Office and became an archive therein. The survey was made by the state and had reference to public lands of the state. The report of the surveyor was one permitted, if not required, to be filed in the General Land Office. “All the books, papers, records, rolls, documents, returns, reports, lists, and all other papers that have been, are now, or that may hereafter be required by law to be kept, filed or deposited in any of the offices of the executive department of this state, shall constitute a part of the archives of the offices in which the same are so kept, filed or deposited.” The survey was made under orders of the land commissioner, given by virtue of the authority vested in him by the statutes of the state. Article 5397, Rev. Stats. That statute makes it the duty of the land commissioner to ascertain by all means practicable the existence and extent of all excesses in surveys and to provide for surveys or corrected surveys. The reports of those surveys, as a matter of course, are kept, filed, or deposited in the General Land Office. The report was admissible in evidence. Article 3694.

There were portions of the document, however, that were not a report of the acts of the surveyor, but consisted of argument and opinions, and those parts of the paper were not valid testimony and no doubt would have been rejected by the court if they had been called to his attention. The only objections urged to the admission of the report were:

“Because the aforesaid report constituted but mere declarations of the surveyor, was hearsay and argumentative, and because it was not shown that it was an official survey, nor was it shown that the surveyor was dead; but, on the other hand, it was admitted that W. H. Leckie, the surveyor, was still living at Runge,' Tex., and for the further reason that the report offered in evidence was not in itself complete in that the report calls for a map attached called ‘Green’s Map’ and marks the same ‘Exhibit B.’”

The objections were aimed at .the whole report, and no effort was made to call the attention of the court to the hearsay or .the argument in the report. In the propositions under the two assignments of error the whole report is attacked as being hearsay and argumentative. All of the report is not hearsay, all is not argumentative. I.t was not the duty of the court to cull the objectionable parts of the report; that duty rested upon appellant. Even in this court the objectionable portions of the report are not pointed out.

In the case of Schunior v. Russell, S3 Tex. 83, 18 S. W. 484, cited by appellant, the court mentions the fact that each part of the report of the surveyor that was objected to was specifically pointed out. The rule is well established that when a writing is offered in evidence parts of which are admissible and parts inadmissible, unless the latter are specifically pointed out, the whole should be admitted. Railway v. Gallaher, 79 Tex. 685, 15 S. W. 694; Railway v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Schulze v. Jalonick, 18 Tex. Civ. App. 296, 44 S. W. 580; Sanford v. Finnigan Co., 169 S. W. 624, not yet officially reported. For the reasons given, the third, fourth, and fifth assignments of error will be overruled.

The sixth, seventh, ninth, and tenth assignments of error will not lie considered because tbe objections made to tbe introduction of tbe testimony sought by appellant are not stated in tbe bills of exception reserved by appellant. Tbis is .tbe uniform practice of tbe bigber courts of Texas, from tbe earliest reports of tbe Supreme Court down' to tbe present day. Styles v. Gray, 10 Tex. 503; Saunders v. Kincaid, 168 S. W. 977; Solomon v. National Bank, 168 S. W. 1029.

Tbe witness Cartledge stated that be was with tbe surveyor at “Cathedral Rock,” a well-known object situated on one of tbe surveys; that be found tbe southwest corner of tbe survey by mesquite bearing trees called for in the field notes. This was objected to by appellant. Cartledge bad testified for appellant and tbe evidence referred to was brought out on cross-examination. He bad •testified that he went with tbe county survey- or to properly locate the surveys, and appellee bad the right to cross-examine him on bis knowledge of the matter. His testimony was not hearsay, but was as to knowledge gained by him on the ground. Tbe answers of Cart-ledge could not have injured appellant because tbe same matters were testified to by Barker, Maddox, and Yandervoort Tbe southwest corner of survey 6, in block 7, was unquestioned and was established beyond a reasonable doubt to be where Cartledge said he found it..

Tbe charge of tbe court is not attacked, nor is tbe sufficiency of the evidence to sustain the verdict brought in question, except on the issue of fraud. Appellant does not claim that tbe southwest corner of survey 6, being tbe northwest corner of survey 7, was not situated in tbe place in which it was located by Cartledge; but, on a mere technical objection to testimony which could not have influenced tbe verdict, a reversal of tbe judgment is sought.

Tbe judgment is affirmed.

On Motion for Rehearing.

Tbis court was fully justified in finding that tbe attorney of appellant advised him to obtain tbe assent of appellee to tbe boundary agreement. It is inconceivable that an attorney should go with bis client to Austin to ascertain tbe details of tbe survey made by tbe state, and should then prepare a boundary agreement and still not advise bis client as to getting it executed. This court did not bold expressly or by innuendo that tbe attorney was guilty of fraud in advising a boundary agreement and preparing tbe same for bis client. Tbe fraud, if any, did not consist in advising tbe client to obtain a boundary agreement, but in tbe suppression of facts intentionally or innocently. There is nothing in the record that indicates that tbe attorney advised his client to suppress facts that would have placed appellee upon bis guard.

Appellant testified to facts which show .that there was no suppression of tbe facts, but be is contradicted by appellee, and tbe jury chose .to believe appellee. Tbis court has not made any charge of fraud against appellant. He may be perfectly innocent, but in compliance with law we have merely held that tbe testimony of appellee, which the jury credited, showed that appellant was in possession of facts bearing upon tbe boundary line, of which appellee was ignorant, and which, if known to him, would have prevented him from signing tbe boundary agreement. They were not dealing with each other on equal terms, and, however innocent appellant may have been, tbe fact remains that the jury found that appellee was induced to sign an agreement which be would not have signed had be known the facts. This court does not charge litigants with fraud, but merely declares the effect of evidence and sustains tbe verdict of a jury finding fraud, as it is compelled to do if there is any evidence to sustain it. Tbe members of this court are not made tbe judges of the credibility of tbe witnesses or tbe weight to be given their testimony ; that prerogative belonging to the jury alone.

Tbe motion for rehearing is overruled.  