
    REED v. ROBERTSON et al.
    (Supreme Court of Texas.
    May 7, 1913.)
    1. Trial (§ 92) — Reception of Evidence-Motion TO STRIKE — ORDERS NUNC PRO Tunc.
    While nunc pro tunc orders are proper to record what actually occurred but was not entered of record, yet a nunc pro tunc order, sustaining a motion to strike evidence, filed after rendition of judgment, upon the ground that such evidence was not within the pleadings, is highly improper because making the record speak falsely; for parties have the right to have all the evidence, which was actually admitted, embodied in a statement of facts or bill of exceptions, and this procedure would falsify those instruments.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 245, 252; Dec. Dig. § 92.*]
    2. Appeal and Eeeoe (§ 522) — Record — Preservation oe Evidence.
    Parties have the right to have all evidence which was admitted in a trial to the court embodied in a statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2367-2371; Dec. Dig. § '522.*]
    3. Estoppel (§ 110) — Pleading—Necessity.
    In trespass to try title a party relying up.on estoppel to defeat Ms adversary’s superior title must plead it.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.]
    4. Partition (§ 36) — Decree—Conclusiveness — Matters Concluded.
    Where administration was had upon the estate of defendant’s intestate, which consisted of two tracts of land, located under a head-right certificate, and the county court in which the administration proceedings were had partitioned the larger tract of land covered by the certificate among the other heirs to the exclusion of defendant, and the parceners floated the certificate as to that tract, taking a certificate for the unlocated balance, which was subsequently located, defendant has no right in the land so located; the decree having the same effect as if the partition had been made by a deed or deeds conveying to each heir the portion of land which he received.
    [Ed. Note. — For other cases, see Partition, Dec. Dig. § 36.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by IT. B. Reed, against S. C. Robertson and others. • A judgment for the defendant named was affirmed on appeal to the Court of Civil Appeals (150 S. W. 306), and plaintiff brings error.
    Reversed and rendered.
    IT. C. Ferguson, of Bubbock, for plaintiff in error. Bean & Klett, of Lubbock, for defendants in error.
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

Plaintiff sued the unknown heirs of Jas. R. Robertson in an action of trespass to try title for a tract of land in Lubbock county granted by patent No. 49, vol. 23, dated June 17, 1879, “located by virtue of unlocated balance certificate No. 23/113 issued to Jas. R. Robertson and being the unlocated balance certificate of the headright of said Jas. R. Robertson granting to the heirs of Jas. R. Robertson 15,404,634 square varas in Lubbock county and known as survey 33, which includes the land in controvery in this cause.” The trial was had before Hon. W. R. Spencer, judge of the district court of Lubbock county, without a jury.

This written agreement was introduced by the parties: “Be it remembered that on the trial of the above entitled and numbered causes that the following agreement shall be read as evidence on the trial thereof, to wit: That at the date of the death of Jas. R. Robertson and his wife, Susan Robertson, there were three children and descendants of two predeceased children entitled to inherit from the estate of Jas. R. Robertson and Susan Robertson, deceased, to wit, Hays H. Robertson, A. J. Robertson, and Fannie Napier, sons and daughter surviving, and Sterling C. Robertson, grandson, being the son of Eliza Hamer Robertson, daughter of Jas. R. Robertson and Susan Robertson, and Van Irion, grandson, being a son of Medora Robertson Irion, who was the daughter of Jas. R. Robertson and wife, Susan Robertson. It is further agreed that ITays H. Robertson, A. J. Robertson, and Fannie Napier each inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased, and that Sterling O. Robertson, who was born April 20, 1849, inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased, and that Van Irion inherited a one-fifth interest in the estate of Jas. R. Robertson and Susan Robertson, deceased. It is further agreed that the plaintiffs in these suits hold the title of Hays H. Robertson, A. J. Robertson, Fannie Napier, and Van Irion; and that the defendant Sterling O. Robertson is entitled to recover the other one-fifth of the estate of Jas. R. Robertson and Susan Robertson, unless defeated by the matters pleaded in the plaintiff’s petition to these suits.”

The effect of the above agreement was to eliminate from the case every issue but the right of Sterling O. Robertson in the land, and, under the agreement, the burden was upon the plaintiff to prove that Sterling C. Robertson never had an interest in this land or that the plaintiff had acquired that interest.

The statement of facts as made and filed by the judge does not contain the evidence as introduced, because after the evidence was admitted to the court, and after the court had heard the argument and had announced judgment for defendant Sterling 0. Robertson for one-fifth of the land, the plaintiff having filed no plea of estoppel, the judge gave permission to counsel for S. 0. Robertson to file a motion to strike out certain evidence, which motion was prepared and presented, and the judge directed the clerk to filé the motion as of date December 18, 1911; and the court after having given judgment for defendant on December 23, 1911, entered an order on that date striking out and refusing to consider the evidence introduced by plaintiff, which order was entered as of date December 19, 1911, the day on which the trial began. The reason assigned in the motion was that the facts sought to be proved constituted an estoppel against defendant- Robertson, and plaintiff had failed to plead such estoppel. We have never before known of such proceeding in any court. We see no reason to believe that the action was prompted by any improper motive of the judge, but it had the effect to make a false record against the plaintiff, and, if sustained, to deprive him of a statement of the facts proved on the trial. Nunc pro tunc orders are legitimate, that is, to record what actually occurred but which was not entered of record so as to make it disclose the truth. But this procedure reverses the rule and places on the record what is done now as if done then, making the record speak falsely. Whatever may have been the purpose, such action was unauthorized and must be disregarded by this court. Parties had the right to have all evidence which was admitted in a trial before the judge without a jury embodied in the statement of facts or bill of exceptions, so that if improperly excluded it may be considered by the appellate courts. In every essential the bill of exceptions in this case constitutes a statement of the facts proved and will be so considered.

If there had been a defense pleaded which would be sufficient to defeat plaintiff’s recovery, as a matter of law, but by reason of some conduct of Robertson the plaintiff had been deceived in the acquisition of his title, which fact would estop Robertson to set up the defense, then a plea setting up the estoppel would have been necessary; but no such conditions exist in this case; there was no estoppel to be pleaded.

The undisputed evidence admitted by the trial judge proves this state of facts: A certificate for one league and labor of- land was issued to Jas. R. Robertson in 1841, which was located in Robertson county, Tex., making two contiguous surveys. Jas. R. Robertson and his wife died, and administration upon their estate was had in the county court of Robertson county. The land was partitioned among the five heirs, and, by the judgment of the court regularly entered, the four heirs under whom plaintiff claims received the larger survey in several tracts; Sterling C. Robertson was not given any part of that survey. For some reason not necessary to be stated, the certificate was floated from the larger survey at the instance of the four heirs to whom it was allotted in the partition, and a certificate for an unlocated balance was issued and delivered to the said four heirs, which was located upon this land. The question here arises: To whom did the certificate for the unlocated balance belong? The judgment of the county court is conclusive of the rights of the parties and vested title to each heir in the apportionment of the land so allotted.

The effect of the decree was to vest title to the land certificate by virtue of which the land was located, in each of the persons to whom the land was adjudged in the proportion of the number of acres allotted to each. Renick v. Dawson, 55 Tex. 102; Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300; Ansaldua v. Schwing, 81 Tex. 198, 16 S. W. 989; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102. Many cases could be cited to this proposition. The effect of the decree was the same' as it would be if the partition had been made by a deed or deeds of partition conveying to each the given portion of the land.

S. C. Robertson had no right in that part of the certificate by which the land in suit was located; therefore he could have no right in or title to the land.'

It wás not necessary for the plaintiff to show that Sterling G. Robertson received anything in the partition; the judgment is conclusive of the rights of the parties; it is conclusively presumed to have properly adjusted the claims of all of the heirs.

The application for writ of error is granted, and, the defendant Robertson having answered the application, this court will proceed to enter final judgment.

It is ordered that the judgments of the district court and Court of Civil Appeals as to Sterling C. Robertson be reversed, and that judgment be here entered that the plaintiff in error, H. B. Reed, recover of said Sterling O. Robertson all of the interest claimed by him in the land sued for, and that said Robertson pay all costs of all courts, except that which was incurred in summoning the unknown heirs of Jas. R. Robertson. This cause will be remanded to the district court for the enforcement of this judgment.  