
    Urquhart v. Burleson.
    Where the calls of a deed or other instrument are for natural or well-known artificial objects both course and distance, when inconsistent with suuh calls, must he disregarded. (Note 85.)
    Where a purvey and patent called for “on Trammel’s Trace, including a place known as the old Choctaw village,’’ and the survey was properly made and the lines distinctly marked, but the surveyor, in making up the field-notes, called for east instead of south, by mistake, which would have excluded all the land actually surveyed, and the mistake was not discovered until after the issue of the patent: Held, That the mistake did not affect the right of the patentee to the land surveyed. (Note 80.)
    A deputy of the clerk of tho Dis'jgtct Court has no authority under the statute to take depositions.
    Appeal from Cass. This was an action of trespass to try title brought by the appellee. The petition stated “that ever since the .year 1842 the plaint iff has been the legal and rightful owner of a league of land which is described as commencing- at a certain point three hundred varas northwest of the old Choctaw village; runs south live, thousand varas to a stake ; thence east five thousand varas to'another stake; thence north five thousand varas to another slake; thence west five thousand varas to the beginning.” The petitioner further alleged “that plaintiff has a patent from the Government of the late Republic of Texas, vesting in him a title in the above premises, in which patent an error exists, inasmuch as it, describes the premises as follows: It calls to rim from the place of beginning, about three hundred varas northwest of the Choctaw village, east five thousand varus, north five thousand varas, west five thousand varas, south five thousand varas, to the place of beginning, which yonr petitioner alleges was and is a mistake of i lie surveyor in making out the field-notes, vour petitioner averring and alleging the truth to be that the said tract of land was actually surveyed and marked upon the ground as is first described; that tiie mistake was not discovered until after the issue of the patent.” A demurrer to the petition was overruled.
    It appeared that both tiie patent and the surveyor’s return correctly described the location, “oil Trammel’s trace, including a place known as the old Chocktaw village ; ” that the survey was made as alleged in tiie petition, running south from the starting point,' and including the premises described as tiie old Chocktaw village; tiiat a post was put down at the starling point, and that the lines were distinctly marked around the land so surveyed ; that the initials of tiie grantee’s name were marked on trees near the corners; that the old Chocktaw village and Trammel’s trace had sufficient notoriety; and tiiat it was welt known that the land was Burleson’s headright. The patent, however, followed the field-notes of courses and distances of the return oE the surveyor, and thereby excluded all the land actually surveyed. There was a verdict and judgment for the plaintiff.
    
      A. Morrill, for appellant.
    I. It will be observed tiiat tiie league of land described in the patent of tiie appellee and tiie league claimed by him in this suit are squares; the one lying directly north of the other, and both having tiie same beginning corner.
    It is unnecessary for us to ascertain what title is sufficient under other circumstances to maiutaiu tiiis action. The plaintiff has produced a patent, and does not allege or attempt to show any title except his patent, which patent was granted in 1842 by the Republic of Texas, as he .avers.
    The common law having been adopted in 1840, this system, the Constitution of the Republic of Texas, and the Jaws of Congress will necessarily be tiie tests of the validity or unsoundness of plaintiff’s patent as applicable to tiie league of land in controversy.
    Tiie Constitution requires that the citizens “shall have their lines plainly marked.” (General Provisions, section 10, last line in first paragraph.) Tiie fifth paragraph of the same section (page 21) says, that “with a view to tiie simplification of tiro land, system, and the protection of the people and the [504] Government from litigation and fraud, a General Land Office shall be established, where all the land titles .of the Republic shall be registered ; mid tiie whole territory of the Republic shall he seetionized in a manner hereafter to be prescribed by law, which shall enable the officers of the Government or any citizen to ascertain with certainty the lands tiiat are vacant and those lands which may be covered with valid titles.”
    The laud law of 1837 (page 65, section 10) prescribes the duty of a deputy surveyor relative to tiie chain carriers, markers, and tiie field-notes. Section 9 requires tiie county surveyors to receive, examine, and record all field-notes of surveys upon which patents are to bo obtained, and tiie 30th section of tiie same law provides that tiie Commissioner of the General Land Office shall record in his office all patents.
    Prom an examination of the foregoing provisions of the Constitution and laws, one great object, has been to have the land system so conducted that “any citizen can ascertain with certainty the lands tiiat are vacant and those lands which may be covered with valid titles.” This is effected by requiring “the Hues to he plainly marked,” and every survey to be twice recorded — once in the county where the land lies and once in the General Laud Office. It would hence follow that simply going round a tract of land witli a chain and compass. or with a chain and compass and marker, would not constitute a survey, nor would a description of the natural and artificial objects, without any mention made of tiie courses and distances from one of these objects to tiie other, be a legal survey. But the survey contemplated and required by tiie Constitution and laws is one which has “the lines plainly marked,” so tiiat it maj' he known on tiie ground to be a survey, and tiie lines, courses, and distances so accurately described and recorded in the county surveyor’s office “tiiat every citizen mav know with certainty upon inspection of the records what laud is vacant and what covered with valid titles.” H we apply these observations to the case at bar we lind that a surveyor went round one tract of land with a chain and compass and tomahawk, and this was all he did to that tract. Whatever he intended to do it matters not; for although ‘•chancery looks upon everything as done which ought to be done,” the law, and especially the land law,"is inflexible. The surveyor's field-notes cannot be applied to this tract. Any citizen who would examine the field-notes as recorded and as made by the surveyor could not even suppose that the field-notes of the patent applied to the land sued for. This record is the constitutional and legal notice of tiie land surveyed; and if an error exists of such a nature as to entirely mislead the inquirer, it is, to say the least, a misfortune which cannot go to the injury of any one so misled. By tiie common law, as laid down in 2 Blackstone’s Comm., 346, 347, and 2 Thomas’s Coke, 004, note A, “A grant made by*the king at the suit of the grantee shall be taken most beneficially for the king and figaingt tiie party. When it appears from tiie face of tiie grant that the king is* mistaken or deceived, either iu matter of fact or matter of law, as in the case of false suggestion, misinformation, or misrecital of former grants, or if the grant be informal, or if he grants an estate contrary to the rules of law in any-of these eases, the grant is absolutely void.” According to plaintiff’s own showing, if the tract in controversy is granted by the .patent, inasmuch as the correct field-notes that apply to this tract were not recorded in the county surveyor’s office .as well as the General Land Office, this grant has been made “contrary to the rules of law,” and is of course “absolutely void.” Iu either view of the case, therefore, the plaintiff cannot sustain his action; for if the patent is correct and does not contain “an error in fact,” it does not apply to tiie land sued for, but a different tract. And if, as plaintiff iias alleged in his petition, the patent is erroneous in calling for a different tract of laud from what tiie sovereign power intended to grant, whereby the grantor was “deceived” or “mistaken,” by the false suggestion in the field-notes, it is “absolutely void.”
    II. But the plaintiff does not pretend that his patent, uncorrected and unaltered, can avail iu this action. This petition states that the patent contains ail error;, and the “error,” as it is called, is no less than an entirely different tract; for it is at once perceived that tins patent differs from no other, except iu the name of tiie grantee and the land granted, and the only tiling tiiat is not error in the grant is the parties to the same, tiie grantor and'grantee. The description of the entire premises is alleged as error. And the objects contemplated by the plaintiff’s suit are two: first, to amend the patent so that it will apply to the land sued for; and, secondly, to use the patent so amended as evidence of ejectment. It is contended by the defendant in ejectment that this patent cannot be amended or explained away, and that no proof can be given having a tendency to show that a different tract of land should have been described by the calls of the same.
    III. But if the defendant in ejectment is mistaken in this position, and the court should decide that the patent can be amended, the defendant still insists that at the institution of this suit, by plaintiff’s own showing, he did not have a patent to the land sued for, as he attempts to acquire it by this action. We then return to the first position, and ask tiie question, Can the plain!iff show that there is ail error in all liis calls in the patent, and prove what these calls should be? If the plaintiff should allege that his patent was entirely blank as to the subject of the grant, and offer to prove that in this blank should be written “thence south five thousand varas, thence east five thousand varas, thence north five thousand varas, thence west live thousand varas, to the beginning,” it is presumed the court would say it is the business of the Commissioner of the General Land Office to fill up this blank. But the plaintiff' insists upon doing more than this. . He insists that the memory of a surveyor and chain carriers is a higher species of testimony than the records of the deputy survey- or, county surveyor, and land office. lie calls upon the judicial tribunal to resolve themselves into a machine for extracting the ink from his patent, and, after having made it blank, leaving nothing but the signature of the president and commissioner, and the seals, lie calls'npon a surveyor to iill up this blank according to his recollection of facts that occurred ten years since. If there were no greater objection to this proceeding than the constitutional provisions already quoted, of “protecting the citizens from litigation and fraud.” and “enabling the officers of the Government and every citizen to ascertain with certainly the lauds that are vacant and those lands which are covered with valid titles,” this of itself would be sufficient.
    IV. But, admitting everything the petition alleges to bo true, the question still arises, before what ti ibnnal shall the correction he made? If'the judiciary is to sit in judgment upon the ease, it must proceed in the usual way. A patent is no more, or less than a grant from government, or sovereign power, and, like every oilier grant or deed, contains a grantor, a grantee, and a tiling granted. If a contract between two private individuals should be alleged by one of 'them to be different from what it purported to be on paper, and ho should call upon the judicial tribunal to rectify the error, the course to bo first pursued is to cull the other party before the court and give him an opportunity of admitting or denying the allegations. And no cause can be legally decided, affecting a contract, unless the opposite party should have legal or constructive notice as prescribed by law. Tliis position is deemed beyond controversy, and it malms no difference who the parties are. If eiLher of the parties is not subject to the jurisdiction of the court, no redress can be had in that court. And here we see the reason of the authority hereinbefore quoted from 2 Blaekstoue, 34G-7; because, as the sovereign power cannot bo cited before the courts, and as ttie courts can give no relief unless all the parties at interest are before them, hence the reason of the rule, “when it appears from the face of the grant that the king is mistaken or deceived, either in matter of fact or matter of law, as in the case of false, suggestion, misrepresentation, or misrecital of former grants. or if the grant be informal, or if he grants ail estate contrary to the rules of law, in any of these eases the grant is absolutely void.”
    Y. The conclusion is inevitable that the judiciary lias no jurisdiction of the parties in this case, and cannot give the plaintiff the desired relief. But it may be insisted that the judiciary, being one of the co-ordinate powers of the Government, should, ex necessitate, be' authorized to correct a mistake. Tiffs is answered by that part of the Constitution which says, “It is hereby declared that no survey or title which may hereafter be made shall be valid unless such survey or title shall be authorized by tiffs convention or some future Congress of tile Republic.”
    Tlie judiciary can decide upon the validity of a title, but have no power to make a title, in whole or in part.; neither can the judiciary do indirectly what they cannot do directly.
    
      Webb £/_ Oldham, also, for appellant.
    The demurrer in this case was, as we conceive, improperly overruled. The plaintiff below exhibited in his petition a patent for a tract of land, and, by averring a mistake, attempted to convert that patent into a title lo the land in controversy. We believe that no authority can he adduced in support of such a proceeding. There is no ambiguity in the instrument, cither latent or patent. Upon its face it is clear and definite. There is no evidence that there are two tracts answering to the calls contained in the patent, rendering parol proof necessary to determine to which tract it should be applied. It is a case of an alleged mistake, in consequence of which it is attempted to substitute another and a different tract for that designated by the patent.
    The general rule of evidence that “ parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed, or other written instrn-menl,” applies to this case and must, govern it, unless it can be, shown to form an exception to the rule. (11’lffll. Év., 043.) Upon examination it will be seen that so far from such being Hie fact, this case belongs to a class to which the rule has been uniformly applied.
    In Procter v. Pool, (i Dev. It., 373,) Chief Justice Rnffln said : “It is clear that only that tiling is meant in which all the particnLrs oE the description concur.” And it was held in that ease, that when all the particulars are necessary to identify the thing described, evidence of an intent to embrace a subject-matter not answering every part of the description is inapplicable. (See also Wemlallo. Jackson, 8 Wend. It., 183; 0 Cow. It., 720, note; Worthing-ton v. Ilylyer, 4 Mass. It., 233; Jackson v. Clark, 7 Johns. B., 224; Beddiek v. Leggatt, 3 Murph. B„ 539.)
    In this ease it is attempted to substitute the tract of land called for in the patent, by one answering none of the calls save the beginning- corner.
    In (Newton v. Lucas (GSim.B., 03) it was held that “if a testator derives property by description which completely tallies with it you are not at liberty to say that some-property other than that wit.it which the description tallies passed by the device.” (See also Breedy v. Holtom, 4 Adolph. & Ellis, 81; Van Vectcn ¿.Sill, 11 Joints. B„ 201.)
    In Bell v. Morse (8 New Ilamp. B, 205) tile question -was expressly decided. It was there held time when one tract of land is by mistake conveyed instead of another by deed, the mistake cannot be corrected in a court of law.
    In 2 Cowen & Hill’s Notes to Phillips on Evidence the authorities are so fully cr.Jlected in notes 939, 948, and 931, that it is deemed useless lo do more tnan to refer the court to Litem. They are conclusive upon the question.
    It is admitted that a court of -equity may rectify mistakes of this character in deeds. But (lie proceedings must be between the parties to the deed, and to rectify the mistake. But in this case Burleson does not seek (o rectify the mistake in his patent, but to assert a right to land by virtue of it different from that conveyed to him by it, without ever seeking- to correct Lite mistake.
    But there is no mistake in the patent. It conveys the identical land intended to be conveyed, and sirictiy follows the survey upon which it was issued. Tin; mistake was in the field-notes and not in the patent.
    The surveyor is a public officer, his duties are defined by law, and he performs them under oath; his returns become matters of record, evidence of title, and the foundation upon which the patent -is supported. The impolicy and evil consequences which would result front permitting surveyors to come into court years after malting a survey, and give evidence contradicting their official returns made at the time tito ast was performed, are too pálpame for argument. It might be sliowp by analogous cases that the surveyor’s return is conclusive as lo the facts stated in ii,‘and cannot be contradicted except in a proceeding against him for a non-performance or violation of official duty, (as in tlie case of a sheriff for a false return,) and that in a proceeding- between third persons his survey is conclusive; and so it was held by the Supreme Court of Tennessw, in G-oodloe’s Heirs v. Wilson, (2 Temí. B., 59.) And in Davidson’s Lessee v. Shelton (I Tenn. B,, 74) it was expressly decided that the surveyor could not be called to controvert his official act.
    
      J. P. Henderson, for appellee.
    I. It is true that by following the courses and lines called for in the patent it would cover a league of land immediately north of the land in controversy. Tiiis fact is alleged in the petition. And the testimony shows that the mistake occurred in making up the field-notes. It was also-in proof that the land in controversy was generally known as the Burleson league. Where a mistake is alleged to exist in a patent, parol proof may be received to explain or correct. it.. (Leech v. Cooper, 1 Cook B., and cases there cited; Sup. U. S. Dig., vol. 2, p. 282, sec. 103; Parsons v. Bouudtree, 1 Hayw. B., 378; Garner & Dixon v. Norris, I Yerg. B., 62.)
    
      IT. The court below did not err in overruling the objections made by the defendant’s counsel to the reading o£ the deposition of llowe. The commission under which said deposition was taken was directed (o the clerk of the District Court of Travis county and was executed by the deputy, who is an officer recognized and whose appointment is authorized by the laws of this State, and who has the right to administer oaths and perform all other acts which his principal is authorized by law to perform in his official capacity.
   Lipscomb, J.

TVe propose briefly to discuss, first, the rights of the patentee, derived from a construction of tiie patent itself; and, secondly, under the patent, in connection with the evidence in its support.

TVhat is the legal construct ion of tiie patent? It is an acknowledged rule in construing a grant that all of its parts must be taken together and supported, if it eail be done. If this cannot be done, tiie principal object supposed to have been in the mind of the party, and sought by him to be secured by obtaining the patent, must prevail over, all subordinate or secondary ones. It cannot bo questioned but that tiie particular piece or parcel of laud described was the primary object of the location. The linos and courses were subordinate to that object. It was held by the Supreme Court of the United States, in Chinowctli v. Haskell, (3 Pet. R., 90,) that “agrant must describe ilie land conveyed, and the subject granted must be identified by tiie description in tiie instrument. TVhcn course and distance are tiie only guides, these, though unsafe, must be used.” It is said to be a well-settled principle in Pennsylvania that where the calls of a deed or other instrument are for natural or well-known artificial objects, botii course and distance, when inconsistent with such calls, must give way and be disregarded. (McPherson v. Foster, 4 Wash. C. C. R., 43; see also Welsh v. Phillips, 1 McC. R., 215; McIver v. Walker, 9 C. R., 173.)

This is now believed to be the well-established doctrine. Nor are wo aware that it is opposed or contradicted by tiie decision of ¡my court at tiie present day.

To apply this rule to tiie patent set out in tiie plaintiff’s petition, it will be seen that tiie premises described are not embraced by tiie courses and distances, and if tiie latter arc to govern it will be at tiie sacrifice of tiie premises which were tiie primary object of tiie location. If, however, tiie same starting point, by running south instead of east, would give the same quantity of land of a similar figure, and thereby include the premises-described and called for by tiie patent, it would seem to answer the obvious intention of tiie grant or patent. Are we not authorized to give it that construction? If we were to give, tiie patent such a construction,"it would be sustaining tiie most material part of it, which would otherwise be defeated.

It is not, however, essential to tiie decision of bills case to rest it on tiie construction of tiie grant itself, standing alone, because, when taken in connection with ilie evidence, it is much stronger in favor of tiie grantee. It appears from t he statement of facts that it was proven that the survey made for the appellee was actually made as lie lias alleged in his petition, running south from the starting point, and including the premises described in the patent — the old Choctaw village; that a post was put down at tiie starting point and tiie lines distinctly marked around the land so surveyed; that the initials of the grantee’s name were marked on trees near the corners; that tiie old Choctaw village and Trammel’s trace had sufficient notoriety, and that it was well known that the land claimed in the petition w.as Burleson’s headlight, and that the mistake was made, not in the actual survey,- but by the surveyor in preparing ins field-notes of the survey. Under such circumstances no subsequent locator could lie deceived. Must the mistake of the surveyor, not in making the survey, lint in making up liis field-notes, defeat tiie rights of the locator? TVe are, fortunately for us, not called upon to discuss what kind of proof can be. received of tiie mistake having been made. If the proof would be admissible, either in a court of law or equity, it. is sufficient under our system of jurispru-(fence, and it cannot be controverted that parol testimony of such mistake could be received either at law or in equity.

Note 85.—Hubert v. Bartlett, 9 T., 97; Bolton r.rLann, 1G T., 90; Dnlby v. Booth. 70 T., 500; Swisher v. Grumbles, 18 T,, 1G4: Ande-son r. Stamps, 19 T.,400; Barr v. Milcholh 22 T., 2S5; Mitchell v. Burdett, 22 T.. 603; l/uau i\ lres. .rry, 25 T., 5X2; Booth v. Upshur, 20 T., G-l; Robertson v. Mosson, 26 T., 248; Booth v. Strippleman. 26 T., 436; Stafford v. King, 30 T., 257; Smith v. Russell, 37 T., 247; Galveston v. Tankersley, 30 T., 651.

In tlie State of Tennessee a difference between the grant and tlie actual survey made on tlie location of a warrant lias been often presented to the consideration of the court. Tlie case of Parsons v. Roundtree (1 Hay. R., 3T8) is considered a leading case in tlie courts of 'that State. I'Ve give a brief ab-strart of the facts of that case: “Roundtree entered a tract of land lying, on Siioco creek, running south, then east, then north to the creek, then up the creek to the beginning. In the grant tlie courses were reversed, beginning on tlie creek at a tree, and running north, then oast, &c., placing tlie ¡and on the opposite side of the creek from that on which it was really surveyed, so (hat the grant did not cover any of the land surveyed. Roundtree settled on tito land, which was afterwards entered by Parsons, who got a grant and brought an ejectment.” The case was several times argued, and at last determined by tlie unanimous opinion of the court that tlie mistake of the surveyor or secretary who idled up the grant should not prejudice the defendant, hut that he was well entitled to the land intended to he granted and which had been surveyed. The authority of this ease is believed never to have bren questioned in the State where it was decided, but li'as been in subsequent cases referred to with approbation as a leading case. (See Garner & Dickson v. Norris, 1 Yerg. R.. 62.)

That case goes much further than tlie one under consideration. In that case there was no locative call inconsistent with the courses and distances of the lines, and no repugnancy presented by the patent on its face with tlie survey described therein. In this the premises located are particularly described, both in the patent and in tlie surveyor’s return, and the courses and distances are altogether inconsistent, and entirely leave the premises out of the survey and grant. Yet in the former it was decided, although nota foot of the land located by Roundtree was embraced by the courses and distances in his grant, that, because it had actually been located and surveyed, lie could hold the land, and his title was good, on the ground that the mistake of the surveyor or tlie secretary ought not and could not prejudice tlie title of the patentee. On principle and authority of adjudged cases, we believe that if the facts alleged in the petition are true the title of the appellee is fully sustained in law. Whether they were proven was a question for the jury to respond to, and not for the court. Their verdict is in his favor, and there is nothing in the statement of facts to authorize us to say that they found contrary to the evidence.

i Tlie last assignment of error presents a question that has been decided by this court in tlie case of Hughes v. Prewitt, (5 Tex. R., 264.) There was a commission directed to tlie clerk of the District Court of Travis county to take tlie testimony of James Rowe. This commission purports to be executed by Risk, as deputy clerk of Travis county. In the ease cited above we decided" that Live power given by the commission could not be executed by a substitute; that in performing tlie duties required by the commission the clerk was not discharging a duty appertaining to liis office as clerk, and consequently the deputy, wiio was only authorized to perform official duties, could not execute and return the commission for the principal, the clerk. The reading of the testimony of the witness was objected to expressly on the ground that it iiad been taken and returned by the depnt.y clerk, and tlie objection was overruled by the court and tlie exception properly taken. The materiality of the testimony is very manifest, aud for this error in permitting tlie testimony to be read to the jury the judgment.must be reversed and the canse remanded.

Judgment reversed.

Wheelbb, J.

Having been of counsel, Í did not sit.

Note 86.—Berry v. Wright, 14 T., 270; Smith v. Hughes, 23 T., 248; Hughes v. Sandal, 25 T., 162.  