Baugh v. McLain
| Decision Date | 02 February 1915 |
| Docket Number | (No. 1384.) |
| Citation | 173 S.W. 922 |
| Parties | BAUGH v. McLAIN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Panola County; W. C. Burford, Judge.
Trespass to try title by W. Pauline Baugh against Julia A. McLain and others. Judgment for defendants, and plaintiff appeals. Affirmed.
This is an action of trespass to try title, brought by appellant for the recovery of 1,280 acres of land in Panola county. The case was tried before the court without a jury, and judgment entered denying appellant a recovery of the land.
It is admitted that appellant is the sole heir of James T. Kelly, and her claim to ownership of the land in suit is in virtue of such heirship. And appellees have title through vendors under patents issued on surveys made since 1870, covering all the land in suit.
The material facts in the case are that on June 11, 1838, the board of land commissioners issued to Joseph Humphreys conditional land certificate No. 36, second class, for 1,280 acres of land. This certificate was located and survey made for Joseph Humphreys on August 20, 1838, by the deputy surveyor in then Shelby, but now Panola, county; and on January 30, 1839, the field notes were filed and approved by the county surveyor. The field notes of this survey were never returned to the general land office. But it appears as a fact that on August 5, 1838, Joseph Humphreys, by written conveyance, sold and transferred, for a valuable consideration, this conditional certificate to Richard Hooper. In 1842 Joseph Humphreys died, and the probate court of Harrison county appointed two joint administrators of the estate of Joseph Humphreys, and the survey of August 20, 1838, was inventoried as a part of the estate. On an order of sale of the probate court, the administrators, by deed of April 18, 1844, for a valuable consideration paid by Kelly, conveyed to James T. Kelly, by metes and bounds, 1,230 acres of the land out of the survey for the conditional certificate. And by deed of June 30, 1846, the administrators under orders of sale conveyed, for a valuable consideration, to James T. Kelly 50 acres of this same survey. It does not appear that Kelly had notice of the transfer of the certificate to Hooper at the time of his purchase from the administrators. On February 16, 1852, the county court, sitting as a land board, issued an unconditional certificate No. 41, second class, on the conditional certificate No. 36, reciting that James T. Kelly was entitled to it as assignee of Joseph Humphreys, deceased. The conditional certificate was filed in the land office on March 13, 1854, and the unconditional certificate was filed in the land office on October 24, 1854. On August 4, 1853, James T. Kelly as a fact relocated the unconditional certificate No. 41 on the same survey in Panola county made for the conditional certificate. The surveyor's records of Panola county show the following:
Kelly had the surveyor of Panola county make survey of the land on the ground July 28, 1854, and such certified field notes of the survey were filed in the general land office October 21, 1854. It reasonably appears that these field notes are corrected field notes of the surveyor made August 20, 1838. No other person had located upon or surveyed the land for appropriation. The land commissioner, acting on the return of the field notes, entered the following:
"Forfeited in consequence of nonreturn of field notes within the proper time, and the claim patented in Anderson county."
The date of the forfeiture, it is inferred, was at the time of or before the patent dated September 17, 1858. A survey was made, it appears, in Anderson county on March 10, 1853, by virtue of the conditional certificate No. 36 for John Smith as assignee, and filed and certified by the county surveyor. The administrator of Richard Hooper, deceased, conveyed to John Smith the land in Anderson county and the unlocated balance of unconditional certificate No. 41. It appears as a fact that the issuance of the unconditional certificate No. 41 was by the commissioner of claims approved on July 27, 1858, but was by him "registered and approved for the benefit of the heirs of Joseph Humphreys, the board not being authorized to issue to an assignee, and Humphreys seems to have been dead." The notation also appears on the record of the headrights registered by the court of claims in reference to the certificate No. 41, "alleged owner, John Smith." On September 17, 1858, a patent was issued to the heirs of Joseph Humphreys, by virtue of unconditional certificate No. 41, for 946 acres in Anderson county, Tex. On September 24, 1858, the commissioner of claims issued certificate to the heirs of Joseph Humphreys, deceased, for the unlocated balance of 334 acres of unconditional certificate No. 41, and a survey made therefor June 10, 1862, and field notes returned to the general land office for land in Shelby county February 23, 1863. The Humphreys certificate was not patented in Panola county. The several patents under which appellees hold title were on separate and distinct surveys made since 1871, and cover all the land in suit. It appears that Richard Hooper was county surveyor in 1838, but it does not appear that this Richard Hooper was the same Richard Hooper that purchased the conditional certificate. The court made the finding, which is supported by proof, that Richard Hooper was by purchase the owner of conditional certificate No. 36.
W. S. Anthony, of San Antonio, H. N. Nelson, of Carthage, and A. C. Bullitt, of San Antonio, for appellant. Brooke & Woolworth and R. W. Priest, all of Carthage, and Charlton & Charlton, of Dallas, for appellees.
LEVY, J. (after stating the facts as above).
Appellant's right, as heir of James T. Kelly, is entirely dependent upon James T. Kelly's having title or claim as against the state for the land situated in Panola county prior to and at the time the state patented the land to the several vendors of appellees. And it is believed that the trial court properly entered judgment for the defendants, for the record shows that appellant failed to establish title or claim in James T. Kelly to the land in suit in Panola county on any ground upon which the court should have decreed title to her.
Finding the fact to be, as the court did, that on August 5, 1838, Joseph Humphreys made conveyance of his conditional certificate No. 36 to Richard Hooper, and that Richard Hooper became the legal owner of the same, it would not appear that James T. Kelly was the legal assignee. And James T. Kelly not being the legal assignee of the original grantee, then neither Kelly nor his heir for him would be in a position to question the issuance of the patent in virtue of the certificate by the state.
As the conditional certificate was issued under the law of 1837, there was no prohibition or restriction upon such sale by the grantee. Graham v. Henry, 17 Tex. 164; Merriweather v. Kennard, 41 Tex. 281.
And as there is no proof in the record that the Richard Hooper who purchased the certificate was the same Richard Hooper who was county surveyor at the time, and as the court's judgment would comprehend the finding that he was not, the sale of the certificate to Richard Hooper was not void. The recital in the unconditional certificate that James T. Kelly was the assignee of Joseph Humphreys, deceased, was not conclusive of his ownership. The...
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