The opinion
On Rehearing.
Having overruled appellants’ motion for a rehearing, we are requested' to make additional, findings of fact, and, among others, to set out in full the field notes contained in the original grant to Andrew, Caddell, and also the field notes contained in the deed from Andrew Caddell to David Brown. In the preparation of the opinion in this case, we deemed it immaterial to set out the field notes in these instruments in full, but have no hesitancy in granting appellants’ requests and now do so.
The field notes, in full, as contained in the- original grant, are as follows:
“The land surveyed to Colonist Andrew Cad-dell is situated on the northeast margin of the Angelina river; on which margin the first landmark, formed of a mound of earth around a stake, was raised; from which a gum 12 inches in diameter bears north 72 deg. west 8.2 varas distant, and another gum 20 inches in diameter bears south 82 deg. west 11 varas distant. Thence north 26 deg. east 10,712 varas were measured, and the 2nd landmark was raised; from which a pine 12 inches in diameter bears south 35 deg. east 5.8 varas distant and another pine 13 inches in diameter bears north 45 deg. west 10 varas distant. Thence north 64 deg. west 2,105 varas were measured, and the 3rd landmark was raised; from which a gum 9 inches in diameter bears north 81 deg. east 4 varas distant and a red oak 20 inches in diameter bears south 47 deg. east 9 varas distant. Thence south 26 deg. west 1,092 varas were measured, and the 4th landmark was raised; from which a dogwood 6 inches in diameter bears north 15 deg. east 8 varas distant and a white oak 12 inches in diameter bears south 62 deg. east 9 varas distant. Thence north 64 deg. west 400 varas were measured, and the 5th landmark was *147 raised; from which a pine 15 inches in diameter hears north 8 deg. east 7.2 varas distant and another pine 12 inches in diameter bears south 66 deg. east 8 varas distant. Thence south 26 deg. west 8,363 varas were measured, and the 6th landmark was raised, it being the last, from which a hickory 24 inches in diameter bears south 15 deg. east 8 varas distant, and a gum 12 inches in diameter bears north 30 deg. east 10 varas distant. . Thence following said river along its meanders downward to the 1st landmark, thus completing the league of land which you ordered me to have surveyed.”
The field notes in the deed from. Andrew Caddell to David Brown are as follows:
“A certain tract or parcel of land * * * containing one-half league more or less lying and being in the county and republic aforesaid, lying on the northeast side of the Angelina river and known as the upper half of the said Caddell land or survey, beginning at a stake on the N. E. boundary of Caddell’s survey at a stake from which a post oak 9 inches diameter bears N. 76° W. 3 varas, also a post oak 12 inches diameter bears S. 65° E. 4.6 varas. Thence S. 26° W. 1,092 vrs. to 2nd cor. a stake from which a pine 12 inch dia. brs. N. 58° W. 6.4 vrs. and white oak 22 in. dia. brs. S. 22° W. 10.8 vrs. Thence N. 64° W. 200 vrs. 3rd corner, a sweet gum 10 inch dia. from which a black oak 12 in. dia. brs. N. 80 deg. E. 2 vrs. and a hickory 14 inch dia. brs. N. 67 deg. W. 11.4 vrs. Thence S. 26 deg. W. 4th corner on bank of Angelina River on a Holly 5 in. dia. from which a white oak 42 in. dia. brs. N. 10 deg. W. 4.2 vrs. and a sassafras 8 in. dia. brs. S. 60 deg. W. 8.8 vrs. Thence with the meanders of the river to the 5th cor. Thence N. 26 deg. E. to the place of beginning containing one-half league of land more or less, being a part of the head right it being the upper half of the said Andrew Caddell.”
We make this further additional finding:
The evidence adduced upon the trial below showed, without contradiction we think, that the northwest half of the Andrew Caddell league was lowei’, from the standpoint of elevation, than the southeast half of the league, and that the east side of the league was the higher side, from the standpoint of elevation; that the league as a whole drains largely, not into the Angelina river, hut to a creek called Harvey creek on the west, which creek runs to the river near the southwest corner of the league. There is more bottom or wider bottom on Harvey creek than on the river itself, and this bottom from Harvey creek extends practically eastward and covers a considerable part of the northwest portion of the Caddell league. Into Harvey creek several other drains empty, which rise on the eastern part of the league and flow downward through portions of the western part of the league and then into Harvey creek. Such drains run practically west into Hai’vey ci'eek from higher lands to the east. Most of the bottom land of the creek and river, too, is on the west side of the league. The drains that run west into Harvey creek are the ones that largely drain the greater portion of the league.
We are asked to make this further additional finding:
“Fourth. There is no evidence in the record that upon the death of Andrew Caddell in 1868, any debts, community or otherwise, existed against the estate, nor is there any evidence that any claims against the estate, whether for debts or legacies under the will, remained unsatisfied at the time of the death of his widow, Khoda Caddell, in December, 1879, nor that there were any valid claims against such estate existing on October 26, 1881, the date of the deed from John C. Caddell as executor of the estate of Andrew Caddell to E. L. Johnson, through which deed alone defendants in error claim title to the southeast one-half of the league of land in controversy.”
We decline to find, as requested, that there was no evidence introduced upon the trial showing the facts mentioned in the requested finding above, and the most that we find in that connection is that there was no direct and positive evidence of the facts there mentioned, but it is our opinion that there were circumstances of probative force tending to establish each of the facts mentioned in the requested finding, and this, too, without regard to the presumptions that should he indulged as mentioned in our opinion in this case.
We further find, as requested by appellants, that in December, 1869, John C. Caddell, as independent executor under the will of Andrew Caddell, filed an inventory of the estate, which included both real and personal property, and in such inventory said independent executor did not list any claims or debts against the estate.