Crook v. Texas Co.

• Decision Date: 27 May 1932
• Docket Number: No. 2165.,2165.
• Citation: 51 S.W.2d 651
• Parties: CROOK et al. v. TEXAS CO. et al.
• Court: Texas Court of Appeals

51 S.W.2d 651

CROOK et al. v. TEXAS CO. et al.

No. 2165.

Court of Civil Appeals of Texas. Beaumont.

May 27, 1932.

Rehearing Denied June 22, 1932.

Appeal from District Court, Orange County; G. E. Richardson, Judge.

Action by W. M. Crook and others against the Texas Company and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Crook, Lefler, Cunningham & Murphy and Holland & Cousins, all of Beaumont, for appellants.

B. C. Clark, Wm. E. Loose, and Williams, Lee, Hill, Sears & Kennerly, all of Houston, for appellees.

WALKER, J.

This was an action in trespass to try title, filed in Orange county on the 26th day of August, 1929, by appellants, W. M. Crook Selestin E. Schlovan, and Pattillo Higgins, against appellees, the Texas Company, Gulf Production Company, and W. H. Stark, to recover the title and possession of Mary A. E. Hall survey No. 1 in Orange county containing 654.3 acres of land, and for rents, profits, etc. The defendants answered by general and special demurrers, pleas of not guilty, the several statutes of limitations, and other pleas not necessary to mention. The trial was to a jury with judgment, after motions for an instructed verdict had been overruled, for appellees.

The facts are as follows: Under the provisions of the Act of April 9, 1881, granting certificates for land to persons permanently disabled in the service of the state or of the Confederate States, Confederate Veteran Certificate No. 1489 for 1,280 acres of land was issued to Mary A. E. Hall on December 14, 1881, and by her transferred to Thos. J. Smith on the 21st of December, 1881. The law under which this certificate was issued provided that "the certificate granted under the provisions of this act shall be located as follows: The locator shall also locate a like amount of land for the benefit of the permanent school fund before either shall be patented, and such locations shall be made on any of the public domain of Texas not reserved by law from location." General Laws 1881, p. 122, c. 106, § 3. This certificate was delivered by Smith to the county surveyor of Newton county, who, under its authority, on the 12th day of March, 1883, surveyed for him in Newton county 1,280 acres of land. The field notes of this survey were filed for record on the 23d of March, 1883, and the certificate itself, bearing the indorsement of the county surveyor, dated the 24th of March, 1883, that he had surveyed "on the within certificate in Newton County, Texas, for T. J. Smith 1280 acres of land," together with the field notes of the 1,280 acres of land, was filed in the General Land Office on the 12th of November, 1883.

On the 12th day of November, 1883, the Commissioner of the General Land Office issued a certificate, directed to any legally authorized surveyor of the state of Texas, directing him to survey 1,280 acres of any of the vacant and unappropriated public domain in the state of Texas for the benefit of the public free school fund. On its face, this certificate recited all that Smith had done under Certificate No. 1489 and directed that the survey be made under authority of that certificate. This certificate was delivered to the county surveyor of Orange county, who, acting under its authority, surveyed 1,280 acres of land in Orange county for the benefit of the public free school fund. The field notes of this survey were certified to by the county surveyor on the 19th of November, 1883, and were filed in the General Land Office on the 31st of December, 1883. This tract of 1,280 acres was classified by the General Land Office as "watered grazing" and valued at $2 per acre on July 15, 1892. The classification and appraisement of this land as public free school land was duly recorded in the General Land Office and in the proper records of Orange county. Subsequently it was resurveyed and revalued at $1 per acre and record thereof again made in the General Land Office and in the proper records of Orange county.

The above-described tract of 1,280 acres of land in Newton county was resurveyed on the 28th of October, 1893, by dividing it into two surveys, designated respectively as surveys Nos. 1 and 2, each containing 625½ acres, and the corrected field notes were filed in the General Land Office on the 18th of November, 1893. The field notes of survey No. 1 recited that it was made for T. J. Smith, and of survey No. 2 that it was made for the benefit of the public free school fund by virtue of Confederate Scrip No. 1489, issued to Mary A. E. Hall. Survey No. 1 was patented to T. J. Smith on the 1st day of January, 1895, and under the patent the title to that survey passed to Smith. Survey No. 2 was claimed by the Commissioner of the General Land Office as belonging to the public free school fund, and the timber thereon was sold by him to Alexander Gilmer on the 28th of August, 1900, at $3.75 per acre. Afterwards survey No. 2 was regularly sold to Alexander Gilmer by the commissioner, on his application, dated the 13th day of June, 1905, stating that he was the owner of the timber on this survey, for the sum of $1,251, and patent duly issued to him for this land on the 29th day of September, 1905.

On the 12th day of April, 1900, J. A. Bunn filed in the General Land Office his application and the affidavit required by law to purchase the Orange county 1,280 acres under its classification and appraisement as public free school land, at $1 per acre. The cash payment required by law and Bunn's obligation for the unpaid purchase price, duly executed by him, accompanied his application. The treasurer of the state accepted the cash payment, and issued his receipt therefor, dated the 10th of November, 1900. On the application thus made, the land was awarded to Bunn on the 19th of November, 1900, as public free school land. On the 26th of December, 1900, Bunn sold this 1,280 acres of land to appellant Selestin E. Schlovan, who duly filed his deed in the General Land Office on the 21st of January, 1901, together with his application and obligation as substitute purchaser. Schlovan was duly accepted by the General Land Office as substitute purchaser and record thereof regularly made in the General Land Office on the 5th of December, 1901. On the 15th of March, 1905, he made and filed in the General Land Office proof in due form of his occupancy and improvements of the home section under which he had made the purchase of the 1,280 acres.

On March 13, 1901, the county surveyor of Orange county divided the Orange county 1,280 acres into two tracts, just as the Newton county tract of 1,280 acres had been divided; the south tract containing 654.3 acres, described as surveyed for T. J. Smith and designated as Mary A. E. Hall Survey No. 1, the north tract containing 667.3 acres, described as surveyed for the benefit of the public free school fund and designated as Mary A. E. Hall Survey No. 2. The corrected field notes were returned to and filed in the General Land Office on the 13th of April, 1901. On the 12th of June, 1901, the Commissioner of the General Land Office entered the words, "Cancelled for abandonment of home tract," on the application and obligation of J. A. Bunn. On the 17th of June, 1901, patent to the Mary A. E. Hall Survey No. 1 of 654.3 acres of land in Orange county was regularly issued to T. J. Smith. On the 10th of December, 1901, Selestin E. Schlovan filed in the General Land Office his application and affidavit to buy, as public free school land, the Mary A. E. Hall Survey No. 2, containing 667.3 acres of land, and it was regularly awarded to him on June 2. 1902. His title to this survey is not in question.

On the 4th of December, 1906, Selestin E. Schlovan, joined by his wife, deeded the Orange county 1,280 acres to appellants W. M. Crook and Pattillo Higgins. As originally filed, this suit was by appellants for the entire tract of 1,280 acres, but by amendment they sued for only survey No. 1, patented to T. J. Smith, as stated above. Appellees hold under T. J. Smith, to whom the land was patented.

Opinion.

The jury found that on June 22, 1901, J. A. Bunn did not desire to purchase "for a home for himself" the land designated by him in his application as his home section; that he had not in good faith "actually settled upon" his home section; and that he had not in good faith actually resided thereon and occupied the home section as his home. These were the only questions submitted to the jury. In view of the fact that Schlovan received a conveyance from Bunn and filed the same in the General Land Office and was duly accepted by the General Land Office as substitute purchaser under Bunn and subsequently performed all the things required of him by law as a purchaser of public free school land, it was immaterial that Bunn did not desire to purchase the home section for a home and had not settled thereon in good faith and had not occupied it in good faith. It is the law that, when a substitute purchaser complied with all the conditions of his purchase, the irregularities or even the invalidity of the prior sale, made by the state to his grantor, became immaterial as affecting his title. Goodwin v. Koonce, 62 Tex. Civ. App. 161, 130 S. W. 620; Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71; ...