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3197, and it is clear to this court that the de- , assignments of error are sustained. McMurfendants, believing that by said judgment the ray v. McMurray, 67 Tex. 665, 4 S. W. 357; said Fidelity Lumber Company was acquiring Dick v. Collins, 30 Tex. Civ. App. 12, 68 S. W. the interests of all of the heirs of said Marin- 1015; Smith v. McDaniels, 170 S. W. 1070; da Hyde to an undivided one-half interest in Weir v. Carter, 169 S. W. 1114; Halliday v. said survey, and the moneys paid by the said | Lambright, 29 Tex. Civ. App. 226, 68 S. W. Carters and the Ame can National Exchange 12; Avocato v. Dell 'Ara, 84 S. W. 443; Bank of Dallas, as shown by said judgment, Heidenhammer v. Loring, 6 Tex. Civ. App. was paid in the belief that the Fidelity Lum- 560, 26 S. W. 99. ber Company was acquiring such title by The third and fourth assignments of error such judgment, and was paid to protect the will be considered together, and are as foltitle of said Fidelity Lumber Company. The lows: court in its findings uses the following lan- (a) "The trial court erred in that portion of guage:
its judgment and decree herein in holding that "I find that at the time of the rendition of titled only to the relief of canceling the release
the plaintiff Fidelity Lumber Company was en. said judgment in cause No. 3197 there were of its warrantor's liability in excess of the sum heirs of Marinda Hyde other than those who of $5,000, and in holding that the trial court were parties to said cause and those whose now could ascertain the present market value interests were owned by Ewing,” “that such of the then market value of land, the title to fact was at the time of the rendition of said which was then held by plaintiffs in said cause judgment unknown to any of the defendants in No. 3197, and charge the said Fidelity Lumber cause No. 3197, was unknown to said Ewing, Company in the present suit with such market but was known to the said S. M. Johnson and value as a credit on the liability of said warsome of the other plaintiffs, and especially to one or more of the plaintiffs whose depositions
(b) "The trial court erred in its findings of were taken in said cause."
fact that there was no definite proof as to what Matthews testified that he was induced to amount was paid the Emporia Lumber Company make the settlement because he thought the for the Marinda Hyde survey, because the undisdepositions he had examined and the affi- | $3 per 1,000 feet for the standing timber upon
puted proof showed that the consideration was davits furnished him by Johnson, in connec- the various tracts of land conveyed by the Emtion with S. M. Johnson's statement, were poria Lumber Company to Thompson Bros. such that they should make a compromise. Lumber Company, and the proof shows the esti
mated number of feet of standing timber upon He further says:
said Marinda Hyde survey from all of which the “I believed those to be all of the heirs, or I amount paid for the Marinda Hyde survey was would not have made the settlement,” and fur- made to appear." ther, "My conversation with Mr. Johnson was
The following propositions are presented: in a day or two of the entering of the judgment at that term of court in which the judgment was
(1) “The warrantors, having warranted for entered," and further, "Then I prepared the 320 acres, on their own initiative sought to judgment and went to Mr. Thomas' office, and avoid their liability to their warrantees by purMr. Thomas read the decree over and O. K.'d it chasing the title which was being asserted for the Fidelity Lumber Company and E. B. against their warrantees. Instead of buying Parker, trustee, and then I signed it as the at- and delivering to their warrantees 320 acres, torney for the Carters, and S. M. Johnson sign- which was their duty, they acquired only 131 ed it as attorney for tire plaintiffs.” “After it acres, and thus were entitled to release of their was signed up I came into court and notified warranty only to that extent; but, owing to the the court that we had the decree prepared, and proven fraud and proven mutual mistake, the he put his 0. K. on it, and it was entered.
I warrantors entered a decree releasing themdo not know who was present. Mr. Johnson selves in full. Having by their own mistake or and Mr. Thomas, I think, were present in wrong paid $5,000 for 131 acres, instead of 320 court."
acres, the loss should not be visited upon the
warrantees, but upon the warrantors. ThereTherefore the understanding arrived at by fore the court erred in holding the innocent warMatthews in reliance upon the statements of rantees liable for the amount paid in excess of Johnson and the depositions and affidavits 131/320 of the warranted liability, but appelwas communicated to Joe W. Thomas, who 0. warrantors' liability to the extent of 188/320
lants should have been permitted to assert the K.'d the judgment in said cause No. 3197 for of the total warranty liability." the Fidelity Lumber Company. Mr. Thomas
(2) “Where the title to a part of the land testified:
conveyed under covenants of general warranty
has failed, the warrantors' liability under the "I thought from what Judge Matthews said warranty is this: "The damages will bear the that it was his understanding that the plaintiff's same proportion to the whole purchase money in that suit were all of the heirs of Marinda
as the value of the part to which title fails Hyde; yes, that is all I relied upon.”
tears to the whole premises estimated at the  The trial court having, therefore, found prices paid.'” as a fact as above stated, the conclusion fol- On the contrary, the counter proposition is lows as a matter of law that the fraud was urged that the court below correctly held that supported by the testimony in the case.
We there was no definite proof as to the amount have gone somewhat at length over the ex- of the warranty liability, the proof showing haustive briefs of the several parties, and in such liability to be $3 per thousand feet for our judgment the testimony is amply suffi- the standing timber as estimated by the cient to sustain the allegations with refer- parties, and there being no evidence as to ence, not only to the fraud, but as to the mis- what the estimated number of feet of standtake upon which the compromise judgment ing timber was; therefore the court below, in was entered. Therefore the first and second setting aside the absolute discharge of the warranty liability and limiting it to the pay. H. L. McCorkle, 1/7....
9.143 ment of $5,000, granted to the Fidelity Lum- Mrs. Alice A. Mahon, 1/5 of 1.7. ber Company the fullest equity permissible to W. H. Baldridge, 1/7 of 1/7
Cullum Heirs, 1.5 of 1.7.
9.143 it under the evidence, for which reason alone Jno. T. Baldridge, 1/7 of 1/7 the judgment here under complaint can be Miranda Grantham, 1/7 of 1/7.. .39.18 affirmed.
Rachael Barrett, 1/7 of 1/7
Mrs. D. P. Foster, 1/7 of 1/7 It is shown by the testimony that the land Jennie Ercanbrack, 1/7 of 1/7 was sold on a timber estimate of $3 per thou- Presley K. Ewing acquired: sand feet of standing timber on the 640 acres. Georgia Adler's 1/5 of 1.7 9.143.. The estimate of timber upon the 610 acres in D. C. Lea's 1/9 of 1/7
Alena Smith's 1/5 of 1/7 9.143..18.286 the Marinda Hyde survey at that time was Fannie Washington's 1/9 of 1/7 :.10.16 4,000,000 feet. The total consideration for said 640 acres, upon the basis of $3 per thou
131.626 sand feet, would be $12,000. In the answer of The above, under the law of descent and the defendants S. F. and J. P. Carter in cause distribution, from the depositions of witnessNo. 3197, they alleged:
es in the case, who are the heirs of Marinda “That this cause, an action of trespass to try Hyde. After the rendition of the judgment title, was instituted in the district court of in cause No. 3197, certain of the heirs of said Tyler county about the 14th day of June, Marinda Hyde recovered a judgment against 1912, against the said Thompson Bros. Lumber Company for the recovery of said undivided the Fidelity Lumber Company and its warhalf of said 640-acre tract of land, and the rantors in the United States District Court, said Thompson Bros. Lumber Company ask at Beaumont, for an undivided interest of that, in the event of a failure to title to said 145 acres in the Marinda Hyde. Thereafter, updivided half of said 640-acre survey, it have judgment against these defendants for the certain other heirs of Marinda Hyde recoveramount of purchase money therefor paid to the ed a judgment against the Fidelity Lumber said Emporia Lumber Company, which amount Company in the district court of Tyler counit alleges was $12,000, with legal interest thereon from the 2d day of July, 1906, in their re- ty for an undivided interest of 15.33 acres spective proportions, that is, against the said in said survey. J. P. Carter for one-fourth, and against the said [3, 4] The measure of damages in a suit S. F. Carter for three-fourths of the amount upon general warranty of title to land is the so paid to said Emporia Lumber Company.”
purchase money, with interest at the legal S. F. and J. P. Carter made a compromise rate from date of payment. Turner v. Millwith the plaintiffs in cause No. 3197, by er, 42 Tex. 420, 19 Am. Rep. 47; Johns v. which, upon the payment of $5,000 in cash to Hardin, 81 Tex. 41, 16 S. W. 623; Glenn v. plaintiffs, the plaintiffs permitted a judgment Mathews, 44 Tex. 405; Fleming v. Pringle, to be rendered against them in favor of the 21 Tex. Civ. App. 225, 51 S. W. 553; Lewis v. Fidelity Lumber Company upon an undivided Ross, 65 S. W. 504. The above measure is one-half interest in the land. The judgment applied where there has been an eviction of appealed from decrees in effect that the judg- the warrantee as to the entire tract conveyment rendered in cause No. 3197 on February ed; but where the title has not failed as to 15, 1913, in so far as it discharges defendants the whole, but as to only a part, the measure S. F. and J. P. Carter, and the American Ex- of damages is as stated by Judge Brown, in change National Bank of Dallas from their Hynes v. Packard, 92 Tex. 49, 45 S. W. 563, warranty liabilities, absolutely only to the as follows: extent of their payment thereby made, to
“If the title had failed to all the land conveywit, $5,000, be canceled and annulled, and ed by Hynes to Packard, the measure of damthat the plaintiff Fidelity Lumber Company est from the date of payment. The failure, how
ages would be the purchase money with interhave its action or actions to recover from the ever, being partial,
the rule by which defendants Carters and the American Ex- to ascertain the grantor's liability under the change National Bank and the balance of warranty is aptly stated thus: The damages their liabilities on their respective warran- purchase money as the value of the part to
will bear the same proportion to the whole ties of title as concerns said undivided 320 which the title fails bears to the whole premacres, but only so far as in excess of and ises, estimated at the prices paid.' Phillips v.
Reichert, 17 Ind. 120 (79 Am. Dec. 463]; after deducting said payment of $5,000, with Raines v. Calloway, 27 Tex. 678; Thomas v. interest thereon at 6 per cent. per annum Hammond, 47 Tex. 42; Morris v. Phelps, 5 from February 15, 1913, which shall be al- Johns. (N. Y.] 49 [4 Am. Dec. 323],” etc. lowed as a credit on said warranty liabili-  The contention of appellant seems to ties; $3,336.10 thereof on the warranty lia- be that the proper measure of damages was bility of S. F. and J. P. Carter, and $1,413.- not applied by the court in this case, and 90 thereof on the warranty liability of the that by reason thereof the judgment renAmerican Exchange National Bank.
dered, in effect, allowing S. F. and J. P. The interests of the plaintiffs in cause No. Carter a credit of $5,000 upon their war3197, who sued as heirs of Marinda Hyde, or ranty, being the amount paid by them to prostanding in the place of such heirs, and cure for their warrantee the title of the whose title was vested in the Fidelity Lum- heirs of Marinda Hyde and those in the right ber Company by the decree rendered in that of such heirs, does not accord to the war. case, amounted to only 131 and a fraction rantee its rights under the law. And the acres, say 132 acres, as follows:
contention is further made that the title of
the Fidelity Lumber Company to an undivid- ja sum equal to 188/320, or $1,816.56. But, it ed interest of 320 acres in the Hyde 610- is claimed, the judgment allowed as a credit acre survey has not been questioned, and has on the warrantors' liability, not the propor. not been claimed by any one, but that Ma- tion that the amount paid by them for onerinda Hyde's heirs appear also to have had half of the 320 acres bore to the whole, but title to an undivided interest of 320 acres of the entire sum of $5,000 paid by them, and the 640-acre survey. In cause No. 3197, a part discharged them from their warranty liabiliof said heirs, claiming to be all of the heirs ties to that extent, and restricting their liaof Marinda Hyde, brought suit to recover bilities as to the 188 acres lost to the differan entire undivided interest of 320 acres of ence between $5,000 paid and the purchase the 640-acre survey. Deceived and misled price of the 160 acres lost, claiming that by by S. M. Johnson, the witness Mrs. D. P. thus restricting the warrantors' liability the Foster, who was also a plaintiff, and the warrantee could not recover $4,816.56, which Washington affidavit, and believing that such was the proportionate price with interest heirs were all the heirs, or stood in the right added received by the warrantors for the of such heirs, S. F. and J. P. Carter, recog- 160 acres, but only the difference between the nizing their liability to the Fidelity Lumber $8,200, being the price with interest added Company as warrantors, paid to said heirs, received for 320 acres, and the $5,000 paid or those standing in the right of such heirs, by the warrantors for the 132 acres secured $5,000 to secure for their warrantee the title, for the warrantee, which, it is claimed, is as they believed, to an undivided interest of greatly less than the sum to which the war. 320 acres. The payment was not made to the rantee is entitled. warrantee to discharge, or to discharge pro  Under the fourth assignment, as above tanto, their warranty, and was not, in fact, set out, the proposition is that a finding of paid to the warrantee at all, but to those fact by the court against the undisputed tesclaiming the land adversely to the warrantee, timony is erroneous, and should be set aside. and it is therefore contended that the pay The court found that: ment of $5,000 to secure for the warrantee “There was no definite proof as to what the land did not entitle the warrantors to amount was paid to the Emporia Lumber Comdischarge from their liability for any greater pany for the Marinda Hyde survey." amount or proportion of their liability than
The proof of the consideration paid for the the quantity of the land owned by the plain- Marinda Hyde survey was established by the tiffs, and which passed to the warrantee by testimony of W. A. Vinson, who testified: the judgment in 3197, bore to the entire 320
"In the deed from the Carters to the Thompacre undivided interest, and they illustrate tioned, but the value of each particular tract
son Bros. Lumber Company, the lands are menthis as follows: The amount received by the is not mentioned. It was sold on a timber estiwarrantors for the purchase price of the mate,
and they figured the values of land, based on three dollars per thousand the land at so much per thousand feet. Generfeet, and upon a timber estimate of four inil- ally, it was $3, I think." lion feet upon the 610 acres, amounted to
Further he testified: $12,000, and this, with interest added, would I have stated, was based upon a timber estimate
“The deal, as I got it from Mr. Carter, as have been the measure of the warranty lia- of $3 per thousand feet.” bility had the warrantee lost the entire 610
And again, he testified: acres. On the basis upon which the pur
“The rate per thousand feet on that warranchase price was arrived at, the purchase ty, as I understood from Mr. Carter, was on price of an undivided interest of 320 acres a basis of $3 per thousand feet.” would be $6,000, which with interest at 6
The answer of Thompson Bros. Lumber per cent. from the date of the guaranty and Company in cause No. 3197 was introduced warranty of the title by S. F. and J. P. Car- in evidence, and contained the following alleter, to wit, December 13, 1906, to February
gation: 15, 1913, the date of the judgment in cause
“Defendant further represents and charges No. 3197, would amount to about $8,200. that the land sued for herein by plaintiffs is a Therefore, by the judgment rendered in the part and parcel of said 640 acres of the Marinda United States District Court and the subse- Hyde survey so conveyed by said Emporia quent judgment rendered in the district court and defendant charges that said land has a
Lumber Company by the deed above described, of Tyler county, the heirs of Marinda Hyde, growth of standing pine timber thereon agother than those sued in 3197, recovered an gregating 4,000,000 feet log scale, for which the undivided interest of 16033/49, or a fraction defendants' warrantors paid the said Carters
$12,000.” of an acre more than half of the 320 acres undivided interest. The title of the warran
In the answer of the defendants S. F. and tee having failed to say 188 acres, the war- J. P. Carter in cause No. 3197, it is alleged: rantee was entitled, as against the warran
"That this cause, an action of trespass to tors, to an amount in the proportion that the of said Tyler county about the 14th day of
try title, was instituted in the district court price paid for the 188 acres bears to 320 June, 1912, against the said Thompson Bros. acres; and as the purchase price, with inter- Lumber Company, for the recovery of said unest added, for the 320 acres, as above shown, divided half of said 640-acre tract of land,
and the said Thompson Bros. Lumber Company was $8,200, the proportion of the warran-lask that, in the event of a failure of title to tors' liability for the 188 acres lost would be said undivided half of said 610-acre survey, it
have judgment against these defendants for the isfaction of Judge Matthews, my attorney, I amount of purchase money therefor paid to the am ready to make payment." said Emporia Lumber Company, which amount
On December 12, 1912, Presley K. Ewing it alleges was $12,000, with legal interest thereon from the 2d day of July, 1906, in their re
wrote J. C. Matthews, of Lampasas, Tex., as spective proportions, that is, against the said follows: J. P. Carter for one-fourth, and against the said
“In Ewing et al. v. Thompson Bros. Lumber S. F. Carter for three-fourths of the amount so Company, Marinda Hyde survey, Tyler county, paid to said Emporia Lumber Company."
answering yours of 9th inst., I am inclosing The testimony, as above set out, seems to to you a letter written to you by Mr. S. M. be undisputed, and in our judgment a finding Johnson, which he forwarded to me for approv
al before mailing, and which I do approve, to would necessarily be that the amount re- the effect that he would settle for $20.00 per ceived by the warrantors for said land, based acre, being practically one-third of the value of upon a timber estimate of four million feet, the land, although we regard our title as clear at $3 per thousand, would be $12,000.
as yours." Viewed in any light, from this record, it is
The court found: our opinion that the third and fourth assign
"This consent judgment was pursuant to an
agreement exclusively between the plaintiffs in ments of error must be sustained.
the former suit and the warrantors of title for  Appellants' fifth and sixth assignments what was in effect a chance of sale of their of error are as follows:
interest by way of compromise with the distinct (a) “The trial court erred in its finding of terms stipulated by the warrantors, as the deal facts, holding that the judgment in cause® No. would be consummated only in the event of a 3197, Ewing v. Thompson Bros. Lumber Com- verbal report from their attorney, Judge J. C. pany, was one based upon a chance of title Matthews, upon independent investigation into between plaintiffs in that suit and the war
the title including heirship." rantors impleaded therein, because the undis As opposed to this finding, Judge J. C. puted facts showed that the said warrantors Matthews testified: would not have entered into said agreement of settlement nor have agreed to the entry of said
"As to what induced me to make a settlement consent decree had it not been represented to of the case for S. F. and J. P. Carter and the them and had they not believed that plaintiffs American National Bank of Dallas, well, I bein cause No 3197 were all of the heirs or stood lieved that the case would probably come to in the right of all of the heirs of said Marinda trial pretty soon if we didn't settle, and I be
lieve that if we ever went to trial we would Hyde.”
(b) “The trial court erred in its finding of lose half of the land, and I thought that the facts holding that the judgment in cause No. depositions that we had examined and the affi3197, Ewing v. Thompson Bros. Lumber Com- davits furnished me in connection with the Silas pany, was one based upon a chance of title be- make a compromise. I believe these to be all
M. Johnson statement was such that we should tween the plaintiffs in that suit, and the war- of the heirs or I would not have made a settlerantors impleaded therein, because the overwhelming and great preponderance of the tes
ment." timony shows that the said warrantors would Further he says: not have entered into said agreement of settle “I did not understand that Mr. Johnson and ment, nor had agreed to the entry of said con- myself were looking after the question of heirsent decree, had it not been represented to ship. I understood that Mr. Johnson was lookthem, and had they not believed, that the plain- ing after the question of heirship.” tiffs in cause No. 3197 were all of the heirs, or stood in the right of all of the heirs of said
He further testified: Marinda Hyde.”
"I did not understand that there were any Appellants assert the proposition that a lost heirs of Marinda Hyde. I understood that
I was getting all the heirs." finding of fact by the court against the undisputed testimony is erroneous, and should be
And also: set aside, and we are of opinion that the testi
"My idea was, at the time I filed suit, that mony in this case was practically undisputed, time of the settlement I believed that my as
we had all the heirs of Marinda Hyde. At the and in our judgment the assignment is and sociates and myself had before the court all the must be sustained.
heirs of Marinda Hyde.” In the first place, we do not believe that the In this connection, W. A. Johnson (not S. evidence shows the compromise to have been M. Johnson), the attorney who filed the origia chance of title. On January 21, 1913, S. F. nal petition for the plaintiffs in cause No. Carter wrote Presley K. Ewing, as follows: 3197, testified:
"I have been delayed in answering your favor "My idea was, at the time I filed the suit, that of the 13th inst. on account of the pressure of we had all of the heirs of Marinda Hyde. business.
* At the time of the settlement I believ"I have a letter from Judge Matthews stated that my associates and myself had before ing that Mr. Johnson had advised him that he the court all of the heirs of Marinda Hyde.” would proceed to take depositions showing that the plaintiffs are the only heirs of Marinda
Joe W. Thomas, attorney who approved the Hyde, and when this is done I presume that will settlement in behalf of the Fidelity Lumber cover the point at issue.
Company in cause No. 3197, testified: "All we want to know is that when we have
“I did not learn that these plaintiffs were paid you the $5,000.00 on your claim we will not all the heirs of Marinda Hyde until this not be bothered about this title later on. "Furthermore, as
Beaumont suit was filed.” we expect the American Exchange National Bank of Dallas to make
He further testified: good on their warranty, their pro rata, which “When the case came on for trial or settlewill be something over $1,400.00, that bank will ment, I was not here and had nothing to do naturally want to know that there will be no with the negotiations whatever. I understood further litigation.
all the time that Judge Matthews was handling "As soon as the matter is arranged to the sat- I that part of it and it was not expected of me.
I recollect, however, that when the judgment court, paying the money. It was perfectly satwas written up that I 0. K.'a the judgment. isfactory to chance it. The instances are nuJudge Matthews came to my office one day at merous where the lawyers and parties settle noon and left there some interrogatories and these matters and leave out heirs.
I am peraffidavits, and told me, 'Here are two sets of fectly certain of this, that I didn't know or depositions and two or three affidavits, and he have any reason to believe, until long after the left them on the table by the machine, and settlement was consummated and the money also the draft of the judgment probably. At distributed, that there were outstanding heirs any rate, he told me that if I wanted to look of Marinda Hyde who were not plaintiffs in the over them to do so, but that he was of opin- suit No. 3197. Understand, your honor, I don't ion from the evidence that they had all the say there were any such outstanding heirs that heirs and it was all right. I was in the trial they didn't know of or were not willing to take of another case at the time, and my not receiv- the chance of having left out. I do not, of my ing any fee and not being employed in this case, own knowledge, know about that. I have no as I considered it, I did not look them over. I knowledge of it." did not examine any of the testimony, either the
The original petition in cause No. 3197, as depositions or the affidavits."
well as the amended petition, sued for an Again he says:
undivided interest of 320 acres of land. "I was not interested with reference to the question of heirs. No, I did not go into the
On September 13, 1912, J. C. Matthews question of heirship. Judge Matthews told me wrote Mr. Ewing a letter, which is the bethat he had them all there, and that was the ginning, so far as this record shows, of the reason for the release of the warranty.”
negotiations looking toward a settlement: Wm. A. Vinson, the attorney who filed the “The plaintiffs in that case (Ewing v. Fidelanswer of Thompson Bros. Lumber Company ity Lumber Company, No. 3197), as I underin cause No. 3197, testified:
stand, claim an undivided half of said survey.
I would be pleased to know the amount of your “I understood that all of the heirs were rep- interest in the survey, whether the heirship of resented when I approved the disposition of those from whom you purchased can be clearly that case at the time that Judge Matthews re- established, and what is the least amount you ported to me on his return from Woodville that will take for your interest in the land.” he had settled the case."
On December 9, 1912, Matthews writes S. C. L. Carter, who, as attorney for the Fi
M. Johnson: delity Lumber Company in cause No. 3197, had active charge of the case, testified:
"If any compromise is effected, I will want to
know that Mr. Ewing is the purchaser from “I had no knowledge that there was any ques- some of the heirs of Marinda Hyde, and that tion as to the Fidelity Lumber Company hav- all the other heirs are parties to the suit.” ing acquired title to the entire undivided onehalf interest in the Marinda Hyde survey until
In response to this last letter, Johnson this suit was filed in the federal court in Beau- writes on December 11, 1912, to Judge Matmont.”
thews, the letter which first went to Mr. EwThe only evidence as to "chance of title,” ing for his approval, and which Mr. Ewing and upon which the court must have based did approve, in which he makes the followits findings, if upon any evidence at all, is ing declaration: found in the testimony of Judge J. C. Mat "If he (Mr. Ewing) thinks proper to send you thews and Judge Ewing. Judge Matthews, this letter, as far as me and Judge Johnson and in his cross-examination by Mr. Ewing, tes- our clients are concerned, we think that we
would consider a proposition of $20 per acre, tified:
provided we will not have to go to the expense “I have been practicing law in Texas a long of taking further depositions to prove heirship, time, in land and other litigation. Yes, I have of course, in event of settlement we would furin my experience come across cases in which nish you affidavits of heirship. There is no heirs were seeking to recover on an ancient shadow of a doubt that our clients are entitled claim of title. I cannot recollect any specific to one-half of this survey, 320 acres. If there instance, but I think it is a common thing for is a prospect of your recommending this propthere to be heirs that you can find no trace osition for settlement, write me at once, because of, that have been lost sight of. Yes, it is a I was on the eve of preparing several lots of common occurrence upon adjustment to be made depositions to prove their heirship, and this is of the chance that they will never turn up. the only thing we have to do in this case to be I don't know how common or frequent such oc- ready for trial." currences happen, but it is done. I don't know how many instances I have known. I cannot
On December 12th Mr. Ewing writes to recollect any, but I have known instances. I Judge Matthews inclosing the letter from Mr. don't know how frequently it is, but it hap- Johnson, and stating his approval of the setpens."
tlement at $20 per acre, and stating: "We Mr. Ewing testified:
regard our title as clear as yours." "I will say that I do know that it is a common thing in this country that unknown heirs
On the 24th of December, Matthews writes are dropped out, and a settlement made, and Johnson: money paid, with the understanding that there "I note what you say in regard to taking the may be some heirs that they don't know where depositions of witnesses to prove the intermedito find them, and a chance settlement made ate heirship, and I think it is important that upon the idea that they will never turn up. you take them, because we want to be sure that I know of one case in Jefferson county, involv- the heirs with whom we are settling are in fact ing a league of land, where three or four times the heirs. And because we have a warrantor successively other heirs turned up; and I know to deal with, and he, as well as we, wants to another case involving a league where some know that there are no other heirs with whom heirs were dropped out and never turned up; we will have to litigate in the future. and I know another in Angelina county, in “I am sorry to have put you to this trouble, which the firm of Terry, Cavin & Mills were which may seem to you to be unnecessary, but engaged as attorneys, and made a settlement I feel that it is important to my client that you where unknown parties were not before the prove up your case thoroughly."