
    Hubert v. Bartlett's Heirs.
    (Note 21.)
    To the objection now urged to the land-office copy of the title to Miller, that it was not a translated copy, it is a sufficient answer that this objection was not made at the trial. (Note 22.) • }
    
    Where the translator and recorder of Spanish deeds in the General Land Office certified to the correctness of a copy of an original Spanish document on file in that office, and the Commissioner of the General Land Office certified “that 10. Sterling C. Robertson, whose “ name is signed above, is the translator and recorder of Spanish deeds in this office,” it was held that although the attestation was not in the most approved form,yet that it was sanctioned by long usage, (of which the court took notice judicially,) and sufficient.
    A certified copy of an original Spanish title properly on file in the General Land Office is admissible, without further proof of the original, and without the filing previous to trial and notice to the opposite party. (Note 23.)
    ■Certified copies of public acts which were filed in the office of any alcalde or judge in Texas previous to the first Monday in February, 1837. are admissible in evidence, without other proof of the originals, and without the necessity of filing three days previous to the commencement of the trial and of giving notice to the opposite party. (Hart. Dig., art. 740.) (Noto 24.)
    The most material and most certain calls will control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, will control both course and distance, although there are many cases where the course and distance will control natural marks or boundaries, as whore it is apparent on tho face of the grant that these were inserted by mistake or were laid down by conjecture; and so of a variety of cases which may bo supposed. (Note 25.)
    Appeal from Washington. Trespass to try title by the heirs of Jessoe Bartlett against Mary A. Hubert. The plaintiff deraigneil title from Samuel Miller, who received a grant from the government of Coálmila and Texas of one league of laud in 1S24, which lie conveyed, by public act before Horatio Chrisman, alcalde of the municipality of Austin, to Bartlett in 1832. The defendaut claimed the land in controversy as being included within the boundaries of Adam Lawrence’s survey, made in 1831, and by him conveyed to her husband, of whose estate she was the administratrix. The matter in controversy was as to the true western line of the Miller survey.
    The record contained the following bill of exceptions:
    “Be it remembered that on the trial of this cause the plaintiffs offered to “ read in evidence a copy of a deed in the (Spanish) language, marked exhibit “A, and also a paper in the Spanish language purporting to toe a grant from “the government, marked B, without having filed the same or given the “defendant notice thereof, to which the defendants objected, as well for the “ reasons aforesaid as for the manner in which said copy was authenticated, “ which objection was overruled by the court and said paper read to the jury; “and also the plaintiff offered to read in evidence a paper purporting to be a “deed fronj Samuel Miller to Jessee Bartlett, marked C, which was fill'd in “the office of the clerk of this court March 15th, 1851, and no notice (hereof “given to the defendant, and. the trial of this cause commenced on the “17th March, 1851; to which the defendant objected; which objection was “overruled by the court, and said papers permitted by tlie court to be read to “the jury; to all of which the defendant excepts and tenders this bill of' “exceptions, which is signed, sealed, and made a part of the record.”
    Exhibit A was a certified copy of the original title to Miller. Exhibit B was the original testimonio of same title. Exhibit A was authenticated in the following manner :
    “GbneRal Land Opeioe, 1 State of Texas. J
    
    “I, E. Sterling 0. Robertson, translator and recorder of Spanish deeds in “ tlie General Land Office of said State, bonded and sworn, certify the fore- “ going to be a correct copy of the original document on file in this office. “Given, &c.
    “E. Sterling- C. Robertson.
    “General Land Office, 1 State of Texas. }
    
    “I, George W. Smyth, Commissioner of the General Land Office of said “ State, certify that E. Sterling C. Robertson, whose name is signed above, is “the translator and recorder of Spanish deeds in this office, bonded and sworn. “In testimony, &c.
    [l. s:]
    “George W. Smith.”
    The deed from Miller to Bartlett was a public act done before Horatio Chris-man, alcalde of the municipality of San Felipe, in 1832, with three assisting witnesses. On the 29th of August, 1839, one of the assisting witnesses appeared before the chief justice of Austin county, and declared on oatli that the signature of Clirisman was genuine, that the instrument was signed by Chris-man in bis presence, and that the signature as assisting witness was his own and done by him. Sworn to and subscribed, &c.
    Same day Oliver Jones appeared before said chief justice and made oatli that he was wrell acquainted with the signature of Samuel M. Williams, another of the assisting witnesses, and that tlie signature of the public act, purporting to be tlie signature of said Williams, was genuine.
    Then followed the certificate of the clerk of the County Court of Austin comity, dated March, 1S51, that “the above and foregoing is a correct “copy of a deed in the Spanish language from Samuel Miller to Jessee Bart“lett,” on file in his office, and that lie is proper keeper of conveyances and other instruments of writing between private individuals which were filed in the office of the alcalde or judge of Austin’s first colony.
    Tlie field notes of the Miller survey were as follows:
    “Beginning at the upper corner of the above survey, a post from which an “ash twelve inches in diameter bears S. 40° W. Svs., another nine indies in “ diameter bears 27. 30° W. Gvs., thence W. 3143 vs. to S. W. corner, a post “from which a cedar twelve inches in diameter bears S. 20° E. 4-vs., and a. “pecan fourteen inches in diameter bears 27. 45° W. 5.vs.; thence 27. 5,000 vs., “to 27. W- corner, a post from which an elm nine inches in diameter bears S. “40° E. 3vs.; a cedar twelve inches in diameter bears 27. S0° W. 3vs.; t-lience “E. 7,310 vs., to upper corner on the river, a post from which a burr-oak “ eight inches in diameter bears 27.13° W. 4 vs.; an elm ten inches in diameter “bears S. 2° W. 4 vs.; thence down the river with its meanders to the place “of beginning.”
    A survey of both tracts was ordered by the court.
    
      “To tbo Honorable District Court, ’Washington county : Agreeably to your “order, issued October 2d, 1S50, 1 proceeded to the S. E. comer of tlie Samuel “Hiller survey ou the Brazos river, where I found two ash trees marked as “bearing trees, hut caved over the bank. I then run due. west between the “Miller and Barnett surveys, an old lino 1,017 varas to N. W. corner of the “ Barnett survey; continued on said line 2,650 vs., to a cedar and pecan marked “ as bearin'; frees; found no stake; continued due west on said liue 3,300 vs., “to tln> lilie of Gibson Kuykendall’s survey, an old field; thence due north “by said survey 1,32S vs., to a stake from which a hackberry bears N. 6 vs. “distant ; this the N. E. corner of Kuykendall’s; and from this point I find “ no old line continuing north; return to the cedar and pecan on the “lino of Miller’s survey; thence due north, and after passing some distance “through prairie, enter timber, whore I find an old line blazed and running “ due north; continues about 4,900 vs. by our measure, to an elm tree marked “as a bearing tree, notched and blazed, but no stake standing. Thence due “east about 7,300 vs. to the Brazos river. Thence down said river with tlie “meanders thereof to the place of beginning, a plot of which survey you will “find attached, within the lines of which is contained an area of about 3,900 “acres of land. All of which is respectfully submitted.
    [Signed,]
    “D. PARKER,
    
      County Surveyor, W. (7.”
    In pursuance, of an order of court tlie deputy surveyor, O. H. P. Garrett, also made a survey of tlie Lawrence quarter league, tlie field notes of which lie returned as follows :
    Beginning at a stake in tlie north boundary of Gibson Kuykendall’s three-fourth league; thence 1ST. 80° E. 1,254 vs., to a stake in old marked line; thence due IST. 3,075 vs., to corner; thence due E. 880 vs., to New Year creek; thence run up said creek with the meanders thereof for tlie line to where Little Cedar creek empties into New York creek, corner on an elm eighteen inches in diameter; (lienee W. 300 vs., to a stake; tills tlie N. W. corner; thence due N. with the E. boundary of tlie Miller quarter league; at 20S vs., cross Little Cedar creek, 5,143 vs., to the place of beginning.
    This survey was certified to be correct "by the county surveyor of Washington county, b. Parker.
    The testimony of several witnesses corroborated the return of the survey of the Miller league as to present appearances, but tiiere’was no proof as to the actual survey. Verdict and judgment for the plaintiffs. Motion for new trial overruled.
    
      J. Sayles, for appellant.
    
      J. Willie, J. 7<J. Shepard and A. M. Lewis, for appellees.
   Wheeler, J.

It is objected to the judgment, 1st, that the court erred in its rulings upon the admissibility of evidence introduced by the plaintiffs; 2d, that tlie verdict ivas contrary to law and the evidence.

To the objection now urged to the land office copy of the title to Miller that it was not a translated copy, it is a sufficient answer that this objection was not made at the trial.

'1'ln' manner in which the instrument was attested is certainly obnoxious to just criticism. It was a mode of attestation adopted, doubtless, from a supposition that tlie Spanish clerk was especially responsible for tlie accuracy of copies of instruments in tlie Spanish language. It is not the most approved form, certainly, of attesting copies of such instruments, but it is believed to have been used for years without having been questioned; and wo think we may apply a liberal construction in favor of a practice of attesting copies as old, perhaps, as tlie office from which they emanate, and hold it a substantial compliance with the statute. The copy introduced was a copy of a record in tlie land office, and as such was rendered admissible by the attestation of the commissioner. (Hart. Dig., art. 744.)

The copy oí the act oí sale from Miller to Bartlett, passed before the alcalde, Chrisman, and certified by the clerk oí the Comity Court of Austin county, was admissible in evidence under the 91st section of the act of 1S4G. (Ilavt. Dig-., art. 746.) It was the original or protocol which remained in the office of the alcalde, and is now in tiie legal custody of the clerk of the County Court. It was admissible, therefore, upon his certificate.

Tiie principal question in the case is whether the verdict was warranted by the evidence. The evidence establishes, wc think, beyond question, the northwest and southwest corners of the Miller league, by marked trees answering to the calls of the survey of that league, and also a plainly marked line from one corner to the other, as its western line. Ho witness testified to the fact, as of his own knowledge, that this ivas the line actually run find marked in making the original survey of the land to Miller; hut the facts and circumstances iii evidence ail tending to this conclusion and admitting of none other wore so numerous, so clearly and folly proved, and were of so conclusive a character and tendency, as to leave no doubt of the. fact. This line, it is true, does not answer to tiie calls for distance west, hut there is none which does. Proceeding west the distance called for, and there are neither lines nor corners found which could have been’ marked as the corners and lines of the survey. The conclusion, therefore, is inevitable that the marked corners and lines found answering- to the description given in the field-notes were the corners and lines marked and run in making the survey, unless we adopt the supposition that the survey was not actually made and the lines run and marked as the survey purports. The appellees do not ask us to indulge this supposition, nor would it become them, claiming under the grant to Miller, to rest their case upon it. We are not at liberty to assume that there was no actual survey made ; on the contrary, we must suppose that the surveyor did his duty, and that he actually traced and marked the lines of the survey, and the testimony establishes the fact beyond a doubt.

But the line thus run and marked as the western line of' the survey and the. calls of tiie field-notes for distance west do not agree. The surveyor stopped short of the distance called for and included in ‘the survey less than the required quantity of land. And the question is presented whether tiie marked lines of the survey actually made or tiie course and distances shall govern in ascertaining the land conveyed in the grant to Miller.

The law, as applicable to a case like the present, seems to he well settled. The general rules are, that, 1st, natural boundaries; 2d, artificial marks, and 3d, course and distance should govern the location. A correct location, it lias Been said, consists in tiie application of any one or all of these rules to the particular case; and when they lead to contrary results, that must he adopted which is most consistent with the intention apparent on tiie face of tiie grant. (McCullough v. Richardson, 1 McC. S. C. R., 167.) Hence, there are many cases where the course and distance will control natural marks or boundaries, as where it is apparent on the face of tiie grant that these were iuserted by mistake, or were laid down by conjecture and without regard to rule; and so of a variety of cases which may be supposed to exist. (Ib.; 2 Const. R., 115.) There is, however, nothing in the present case to exempt it from the operation of tiie general principle we have stated, and which is thus stated by Chief Justice Marshall in the case of Newsom v. Pryor’s Lessee: “It is,” he said, “ that the most material and most certain calls shall control those which are “ less material and less certain. Acall for a natural object, as a river, a known “ stream, a spring, or even a marked tree, shall control both course and clis- “ tance.” (7 Wheat. R., 7; Urquhart v. Burleson, 6 Tex. R.)

The application of this principle to the facts of the case in evidence required that the verdict should have been set aside, as manifestly contrary to law, and a new trial awarded. The judgment must therefore be reversed, and tiie cause remauded for further proceedings.

Reversed and remanded.

Lipscomb, J., did not sit in this case.

Note 21. — Same case, 21 T., 8.

Noth 22. — Loach t\ Millard, post 651; George v. Lemon, 19 T., 153. A party objecting to written evidence for any cause not going to its relevancy or competency, bub only for the manner of its authentication or proof, must specially allege the grounds of his objection at the trial and cause them to appear upon the record. (Ryan-u. Jackson, 11 T.,391; Croftv. Rains, 10 T.,520.)

Noth 23. — Andrews v. Marshall, 26 T., 212.

Note 21. — Andrews v. Marshall, 20 T„ 212. In a county clerk’s authentication of a public instrument executed before a primary judge in 1833 ho certified the copy to be a “true copy “taken from the original in my office and an archive thereof:” Held, that the certificate is sufficient. (Hooper y. Hall, 35 T., 82)

Note 23. — George v. Thomas, 10 T., 74; Bolton v. Lamí, 10 T., 90; Bartlett v. Hubert, 21 T., 8; Mitchell r. Bimlo.tt, 22 T., 033; Anderson y. Stamps, 19 T., 400; Bass v. Mitchell, 22 T., 285; Booth v. Upshur, 20 T., 04: Robertson v. Masson, 26 T., 218; Booth -y. Strippleman, 26 T,, 436; Stroud v. Springfield, 28 T., 049; Stafford v. King, 30 T., 257.  