extending the line east from its southwest, that the N. W. and S. W. corners of said corner, and south from its lower or bayou or S. E. corner to the point of intersection of said lines, makes the south line of said Mitchell survey 88 vrs. shorter than is called for in said field notes, and makes the east line of said survey-that is the line from the point of said intersection to said lower bayou corner-122 varas shorter than is called for in said original field notes.

"(2) I find that the Jose Padillo survey was made by L. H. Luckett on the 6th day of July, 1857, and that the field notes thereof call as follows: Beginning at the S. E. corner of the N. B. Mitchell survey (survey No. 136) a stake for corner; thence W., with the S. line of said survey No. 136, 3,605 vrs., to a stake from which calling for two bearing trees; thence S. crossing Elm creek, 3,605 varas, to a stake, calling for two bearing trees; thence E., 3,605 vrs., to a stake for corner; thence north crossing Elm creek, 3,605 vrs., to the place of beginning. I find

Jose Padillo survey are defined upon the ground by the original bearing trees called for in the field notes of said survey. I find that to begin at the N. W. corner of the Jose Padillo survey, as found on the ground, and to reverse the calls and to run E. 3,605 vrs. will not reach the S. E. corner of the Mitchell survey as established by intersection of the south and east line as herein before indicated by 374 vrs. In other words, I find that if you begin at the N. W. corner of the Padillo survey as found upon the ground, and run east to the S. E. corner of the Mitchell survey, as established by intersecting the S. and E. line of said survey from the known corners thereof, the Jose Padillo survey will have an excess of 374 varas.

"(3) I find that the west line of the Padillo survey as run from its established corners has an excess of 66 varas.

"(4) The above findings are more fully il lustrated by the following sketch: "

The black-faced names and figures and the heavy lines show the old subdivision.
The light-faced names, lines, and figures show the new subdivision.
The dotted lines show the conflict with other surveys.
o show old corners found on the ground.

The other findings of fact are omitted be- | King, supra), since such calls will be concause they have reference alone to subse- trolled by the calls for the bearing trees at quent surveys or subdivision lines of the Padillo survey, which are not regarded by us as material to the issue here involved.

the northwest and southwest corners of this survey and, if this method of constructing the Padillo survey is adopted then appellant's contention must prevail.

We believe that this survey should be so constructed. It therefore follows that we think the court below erred in its conclusions of law, for which reason its judgment should be reversed and rendered in favor of appellant; but, since the judgment is conceded to be correct so far as it relates to M. M. Cox, the same will as to him be affirmed, and it is accordingly so ordered.

Affirmed in part, and reversed and rendered in part.

JENKINS, J., having been of counsel, did not sit in this case.

Jan. 14,

CRESS v. HOLLOWAY.† (Court of Civil Appeals of Texas. 1911. Rehearing Denied Feb. 18, 1911.) 1. EVIDENCE (§ 441*)-PAROL EVIDENCE-AC

TIONS-ADMISSION OF EVIDENCE.

Where defendant agreed to convey land pursuant to an escrow agreement authorizing a third person to deliver the deed to plaintiff upon approval by the attorney of the parties and the payment of the purchase-money note. and defendant claimed that the attorney decided ed in escrow, evidence was not admissible for adversely to the sufficiency of the deed depositplaintiff of a parol agreement with defendant, made when the escrow was executed, by which the parties were to furnish abstracts in addition to the deeds deposited in escrow, and the attorney was to pass upon the sufficiency of title after examining such abstracts in connection with the deeds; such evidence varying the terms of the escrow agreement. [Ed. Note. For other cases, Cent. Dig. § 2032; Dec. Dig. § 441.*] see Evidence, 2. EVIDENCE (§ 441*)

It will be seen from the above findings that the surveyor who made the Mitchell established its upper bayou corner, as well as its southwest corner and its lower bayou corner, since the bearing trees mentioned in the field notes are still found upon the ground; that he likewise established on the ground the northwest and southwest corners of the Padillo survey, the bearing trees of which are also found upon the ground. The court did not find that the Padillo survey was not surveyed on the ground as called for in its field notes. We think, in the absence of such proof, that it must be presumed that the survey was actually made on the ground by the surveyor, as stated in the field notes; and, when the footsteps of the original surveyor can be found and identified, they should be followed. Stafford v. King, 30 Tex. 269-273, 94 Am. Dec. 304; Phillips v. Ayres, 45 Tex. 601; Bolton v. Lann, 16 Tex. 112; Fulton v. Frandolig, 63 Tex. 330. It is true that the beginning call of the Padillo is for an unmarked corner of an older survey, but the call for an unmarked corner or line of an older survey, where the same can be easily found, will have the dignity of a call for an artificial object and will control a call for distance. See Maddox v. Fenner, 79 Tex. 291, 15 S. W. 237; Davis v. Baylor (Sup.) 19 S. W. 525; Langermann v. Nichols, 32 S. W. 126; Fordtran v. Ellis, 58 Tex. 251; King v. Mitchell, 1 Tex. Civ. App. 701, 21 S. W. 52. In the present case, if a line be projected, running east from the northwest corner of the Padillo survey, as found on the ground, until the same intersects another line running from the lower or bayou corner of the Mitchell, as found upon the ground, the same will mark or fix the southeast corner of the Mitchell, which is the beginning corner of the Padillo. It is permissible under the authorities to establish the southeast corner of the Mitchell in this way. See Woods v. Robinson, 58 Tex. 661; George v. Thomas, 16 Tex. 88, 67 Am. Dec. 612; Randall v. Gill, 77 Tex. 354, 14 S. W. 134; Longoria v. Schaeffer, 77 Tex. 551, 14 S. W. 160. And constructing the Padillo by beginning at the southeast corner of the Mitchell as thus found, and running thus west to its known northwest corner, as fixed by bearing trees, and thence south to its known southwest corner, as shown by the bearing trees as called for in the field notes, thence east, 3,929 varas, to its southeast corner, thence, north, 3,671 varas, to the place of beginning, it will be seen that the survey will be run in accordance with its calls, except that the calls for distance must be disWhere plaintiff, in an action of trespass to regarded, which is permissible (Stafford v. try title, defended on the ground that the at"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

PAROL EVIDENCE VARYING CONTRACTS-ESCROW AGREEMENT. The escrow agreement was not ambiguous, so that in absence of allegations of mistake or shown by the parol evidence was omitted, such fraud in executing it, whereby the agreement evidence was not admissible to add to its terms.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2030-2047; Dec. Dig. § 441.*] 3. FRAUDS, STATUTE OF (§ 158*)-CONTRACTS RELATING TO LAND-PAROL CONTRACT. ed for the delivery of the deed upon approval Where a written escrow agreement providby an attorney of the deeds deposited with the escrow holder, a contemporaneous parol agreement by which the parties were to deliver other abstracts which were to be considered in connection with the deeds deposited in passing upon the title could not be ingrafted upon the written agreement and enforced without violating the art. 2543), unless the escrow agreement was statute of frauds (Sayles' Ann. Civ. St. 1897, first reformed, so as to embody the terms of the parol agreement.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 375; Dec. Dig. § 158.*] 4. WITNESSES (§ 319*)-ESTOPPEL TO DENY CREDIBILITY.

torney authorized in the escrow agreement exe- [bad, N. M., March 20, 1909.
cuted to pass upon the sufficiency of the title Cress, Orla, Texas-Dear Sir:
to be conveyed decided adversely to plaintiff's
title, successfully resisted the introduction of
evidence by defendant to impeach the good
faith of the attorney in a second decision ren-
dered by him, approving the title, plaintiff
thereby vouched for the attorney's good faith
in the entire transaction.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1087-1093; Dec. Dig. § 319.*]

Appeal from District Court, Reeves County; S. J. Isaacks, Judge.

Action by Arthur L. Holloway against John A. Cress. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered for defendant.

J. W. Parker, McKenzie & Brady, and Stephens & Miller, for appellant. Hefner & Hudson, for appellee.

DUNKLIN, J. John A. Cress has appealed from a judgment rendered against him in favor of Arthur Holloway for certain real estate situated in Reeves county and the value of a stock of merchandise situated thereon. There were two suits, one for the real estate and one for the personal property. The suit for the land was in the form of trespass to try title and was the only one tried. The judgment in the suit for the personal property was rendered under and by virtue of a written agreement by the parties that judgment in that suit should abide the judgment in the suit for the land, and judgment in both suits was embraced in one and the same order.

Mr. John A.

As per your

request of yesterday, I, to-day, examined the papers in the Holloway-Harris-Cress land transaction at the First National Bank and find: Arthur V. L. Holloway and Maud Holloway, his wife, executed a quitclaim deed, dated February 3rd, 1909, to John A. Cress, of Orla, Texas, March 3rd, 1909, conveying southwest quarter section 13, township 18 south, range 25 east, N. M. P. M., containing 160 acres, with all improvements and a onethird interest in and to an irrigation ditch and flood water from the Penasco 'river. You desire my opinion on this transaction and I am unable to express one because there are no papers here showing that the title the Holloways are conveying to you was ever vested in them, or if in them, then there is nothing showing the title to ever have been vested in their grantors. In other words: I cannot give an opinion upon real estate without an abstract and until you furnish a complete abstract to the above described land I cannot advise you of its status and, therefore, in the absence of an abstract I must advise you not to accept the deed. I inclose our bill to you in the sum of $25, which please remit. Yours truly, [Signed] E. P. Bujac." Later Holloway furnished the attorney an abstract of title to his property in New Mexico, and, after an examination of the same, Mr. Bujac instructed Mr. Cooke to deliver the deeds left with him in escrow to the respective grantees named therein upon payment by Holloway for the use of Cress $1,000 in liquidation of the note mentioned in The material facts developed upon the the escrow agreement. This instruction was trial were substantially as follows: Hollo- followed by Cooke, who mailed to Cress the way and Cress entered into a parol agree deed executed in his favor by Holloway, toment for the exchange of properties; Hollo-gether with a draft for the $1,000 paid by way agreeing to convey real estate situated Holloway. About one week later he received in New Mexico, where he resided, and Cress back the draft, together with the Holloway agreeing to convey the real estate in contro- deed, both of which were returned by Judge versy, together with a stock of merchandise J. W. Parker, acting as attorney for Cress, situated in Reeves county, Tex., where he re- and thereafter Cress refused to accept the sided. Following the parol agreement for ex- same. Cress never furnished an abstract of change, the parties executed and delivered title to his property, and none was demanded to G. M. Cooke the following escrow agree of him, Holloway informing the attorney at ment in writing for the purpose of effecting the time he furnished his abstract that he the proposed exchange: "Mr. G. M. Cooke, was satisfied with Cress' title to the Texas Cashier First National Bank, Carlsbad, N. property. After receipt of the letter from Mexico-Dear Sir: You are authorized by Bujac shown above, Cress requested Cooke the undersigned, upon approval of the in- to return his deed, but the request was reclosed deeds by our attorney, Mr. Bujac, and fused. Cress then paid to Bujac the fee for the payment of the within note for $1,000.00 his services shown in Bujac's letter quoted made payable to John A. Cress, to deliver to above, and sold the stock of merchandise to Mr. Holloway the deed to him from John A. Alexander. The court gave a peremptory inCress and to Mr. Cress the deed to him from struction to the jury to return a verdict in Mr. Holloway. [Signed] Arthur Holloway. favor of Holloway, and this instruction is [Signed] John A. Cress." This written agree-assigned as error. We think this instruction ment was entered into on or about Febru- was erroneous, and that the court should ary 14 or 15, 1909, and on March 20th fol- have given the peremptory instruction in falowing Mr. Bujac, the attorney named in the vor of the defendant, which was requested agreement, wrote to Cress the following let- by the defendant, and the refusal of which ter, which was duly received by Cress: "Carls- is also assigned as error.

The only pleading filed by Holloway was posited in escrow and the election of Cress a petition in statutory form of trespass to to accept the same, established a perfect detry title. After introducing in evidence the fense to the prima facie showing of title in deed from Cress to himself to the land in Holloway as evidenced by the deed from controversy, Holloway next introduced the Cress to Holloway introduced in evidence by written escrow agreement recited above, and the plaintiff. Evidently the testimony offerthen testified, in effect, that there was a pa-ed by Holloway to show the parol agreement rol agreement between himself and Cress testified to by him was for the purpose of made at the time the written escrow agree- controverting in advance the defense, but ment was executed that he and Cress would this parol testimony tended to vary the terms each furnish abstracts of title to their re- of the written agreement, and was without spective properties, which abstracts were to effect at all events under Holloway's formal be submitted to Mr. Bujac for examination, petition of trespass to try title. Watts v. and that on such abstracts and the deeds Howard, 77 Tex. 71, 13 S. W. 966; Cavin v. mentioned in the escrow agreement the at- Hill, 83 Tex. 76, 18 S. W. 323, and decisions torney was to pass upon the titles to the re- there cited; Matador Land & Cattle Co. v. spective properties, and not merely upon the State, 54 S. W. 256. The escrow agreement instruments deposited in escrow. Holloway in writing was not ambiguous, but was plain further testified as follows: "I expected and specific in its terms. There was no alleCress to give me a perfect title to the land. gation in the plaintiff's pleading of any misI expected him to deliver to me such papers take or fraud in drafting the escrow agreeas would show a perfect title in the land. ment, and, without some pleading of that An abstract was to be procured. The reason character, he could not be heard to say that we would not state that in that escrow it did not contain the full agreement of the agreement, I suppose, was that we just want-parties thereto. Even though a pleading of ed to make it, that agreement, as short an the character indicated had been filed by instrument to the bank as possible. We Holloway, there was no proof to support it, both had confidence in one another that there was no use to put that in the escrow agreement. I had told Bujac what I wanted him to do, and that I considered settled it. I had some title papers there in the bank at the time we entered into the written agreement; had quite a number of deeds there; had some title papers pertaining to the New Mexico property at the time, some of which are deeds. Yes; in the escrow agreement, where it says the deeds are to be delivered to us, respectively, when Bujac passed upon the inclosed deeds, that clause in the agreement had reference to the deed I had on file with the bank." Appellee Cress testified as follows: "There was no such understanding as that there should be an abstract furnished at the time Mr. Holloway and I were talking about what was to be put in the escrow agreement. The understanding was that we were to have perfect title, and Mr. Bujac was to pass upon the title for us; inclosed in the envelope the deeds which convey the land down there one to the other. All the deeds I had pertaining to this land or ever had pertaining to this land up there was in it. The deeds was in there I think, except the one from Hughes. Hughes had his in the bank with the others. He had Hughes' deed in the bank with the escrow agreement some way. I do not understand it, but he went over to the bank and got it by executing his part of the contract with Hughes-got the Hughes deed." Proof of the adverse decision of Bujac under the written escrow agreement, after an examination of the title papers de

for his own testimony quoted above shows that the parol agreement testified to by him, if made, was omitted from the written agreement as a matter of convenience to the parties, and not through mutual mistake, accident, or fraud. To enforce such parol agreement without first reforming the written escrow agreement so as to embody therein the terms of the parol agreement would contravene our statute of frauds. Sayles' Ann. Civ. St. Tex. 1897, art. 2543.

The uncontroverted testimony shows that the second opinion upon the title rendered by Bujac was based upon the abstract of title furnished him by Holloway, and not upon the instruments deposited in escrow, and upon which he rendered his first decision. In other words, the testimony conclusively shows that the first decision rendered by the attorney would not have been changed but for the abstract furnished to him by Holloway. Mr. Bujac, who was introduced as a witness by Holloway, testified that he acted in perfect good faith in rendering his first decision, and his good faith in the transaction was not assailed in any manner by Holloway. Holloway successfully resisted the proposed introduction of certain testimony offered by Cress for the purpose of impeaching the good faith of the attorney in rendering the second decision, thereby expressly vouching for his good faith in the entire transaction.

For the reasons noted above, the judgment is reversed, and here rendered in favor of appellant.

1. APPEAL AND ERROR ($ 609*)-RECORD-er that, "if plaintiff * ** had complied with

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes