Bd. of Land Comm'rs of Nacogdoches Cnty. v. Riley

Decision Date31 December 1848
Citation3 Tex. 237
CourtTexas Supreme Court

Appeal from Nacogdoches County.

Applicants for headright certificates must comply with all the requisites pointed out by the land law of 1837, to sustain their claims.

The conditions on which claims are to be approved are limitations upon the authority of the tribunal acting under the law, and, without a compliance with the requisites of the statute, the legal power to grant a certificate of the claim is not vested in the court.

This was an application presented to the board of land commissioners of Nacogdoches county, by James Riley, assignee of Dolorez Hernandez, for a certificate under the 12th section of the general land law of 1837. The application was founded upon an order of survey in the following words:

“No. 283, Nacogdoches, Sept. 9, 1835, Mr.

Sir: You are hereby authorized to survey within the limits described by me in your instructions, the sito and labor of land which Mr. Dolorez Hernandez will designate to you, provided said land is entirely vacant, strictly observing in every particular the instructions given you.

                ¦(Signed)¦GEO. W. SMYTH, Comm'r.”¦

The board of land commissioners decided against the claim, and the applicant appealed to the district court, at which he obtained a verdict and judgment in his favor, and an appeal was taken to the supreme court by the attorney representing the republic.

At the trial, the following facts were agreed to by the appellant and the attorney for the republic:

“1st. The order of survey was obtained from a legally authorized commissioner, and the survey made by a legally authorized surveyor; and that the section of the general provisions of the constitution which recites “that all orders of survey legally obtained by any citizen of the republic from any legally authorized commissioner, prior to the act of the late consultation closing the land offices, shall be valid,” has been complied with.

2d. That he (the appellant) is the regular purchaser or attorney of the original grantee, and entitled as assignee or attorney to sue the board of land commissioners for a certificate: Provided, such admission of right in said Riley to sue does not go in avoidance of any duty or obligation that may by operation of law have devolved upon, or become obligatory upon, the grantee.

3d. That these are the questions to be submitted to the court and jury: 1st. That inasmuch as the grantee has not complied with the requirements of the 12th section of the land law of 1837, can the said Riley recover before the court a verdict against the board; and 2d. That an order of survey, with field notes annexed, do not constitute a legal title, and therefore is not the subject of transfer or assignment.”

After the first verdict and judgment in the district court were rendered, the cause was brought into the supreme court of the republic by appeal, and the judgment was reversed and the cause remanded for a new trial. The appellee having a second time obtained a verdict and judgment in his favor, it now comes into this court by appeal.


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2 cases
  • Capps v. Terry
    • United States
    • Texas Supreme Court
    • December 10, 1889
    ... ... below, appellants in this court, claim to own the land in controversy, the William M. Robinson 640-acre survey, in ... Commissioner, Id. 357; Commissioners ... v. Riley, 3 Tex. 237. In a collateral proceeding like the one before ... ...
  • Huston v. Berry
    • United States
    • Texas Supreme Court
    • December 31, 1848

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