Cullem v. Latimer

• Court: Texas Supreme Court
• Writing for the Court: HEMPHILL
• Citation: Cullem v. Latimer, 4 Tex. 329 (Tex. 1849)
• Decision Date: 31 December 1849
• Parties: CULLEM, ADM'X, v. LATIMER.

4 Tex. 329

CULLEM, ADM'X,

v.LATIMER.

Supreme Court of Texas.

December Term, 1849.

The remedy by writ of mandamus is not allowed in cases where the law affords other adequate means of redress, nor in any case, except to perform a dutyclearly defined by law, involving no discretion nor leaving any alternative. The petition should therefore be very distinct and precise in the statement of the circumstances, so as to show that the party is entitled to this peculiar remedy. (Note 68.)

In the answer or return of the defendant to a rule to show cause why a mandamus should not issue according to the strict rules of the common law, the same certainty is required as in indictments, returns to writs of habeas corpus, counts, replications, &c.; and under any system there should be a reasonable degrees of certainty; a fair and legal reason should he disclosed why the alternative mandamus should not be obeyed.

The 17th section of the land law of 1837, (Hart. Dig., art. 1853,) authorizing the summary determination of conflicting claims to a location by the nearest justice of the peace and six jurors, contemplates the adjustment of the controversy before the transmission of the fieldnotes for record to the office of the county surveyor. But there may be circumstances which might authorize a resort to this summary remedy within some reasonable time after the field-notes have been transferred to one of the parties and placed upon the record; such as, for instance, fraud on the part of the officers, ignorance of the party that the survey had been made, &c.

Where the right to a location has been contested and determined by a justice of the peace and six jurors under the 17th section of the land law of 1837, the determination is final, and there is no appeal. (Note 69.)

It is a rule in application for a mandamus that all persons interested in the defense must be included in the rule to show cause. Therefore, where application is made for a mandamus to compel a survey or to survey, or the Commissioner of the General Land Office to issue a patent, all persons who, to the knowledge of the applicant, claim property in the land should be summoned to defend their rights.

Error from Red River.

Morgan, for plaintiff in error.

Morrill, for defendant in error.

HEMPHILL, CH. J.

This is an application for a mandamus to compel the defendant, as county surveyor, to survey for the petitioner, as administratrix of the estate of Benjamin F. Brewster, deceased, and by virtue of his headright certificate, nineteen hundred and twenty acres of land, specially described in the petition, and including an improvement occupied and settled by the decedent in 1835, and on which he continued to live until the time of his death, and which from that time has been and is now in the possession of the petitioner. The petition alleges that the certificate was lodged with a deputy surveyor in July, 1838, with directions to survey a league and labor so as to include the said improvement, and that there was sufficient vacant land for that purpose; that the surveyor was repelled by a force of armed men and prevented from completing the same; that the certificate was recommended as a legal and genuine claim, and placed in June, 1841, in the hands of another deputy surveyor, with directions to survey so as to include the settlement; that the survey was but partially made; that at some time not stated in the petition the deceased instituted a suit before an acting justice of the peace, against one John H. Duke, for having located seven hundred and ten acres of the land (for the survey of which this application for a mandamus is made,) and that on the 10th day of November, 1842, the said court adjudged that the right to locate the said seven hundred and ten acres of land was then and has been in the said deceased, Brewster; that the survey of Duke was wholly void; and that the county surveyor should deliver the field-notes of the said survey to Brewster; and that this judgment still remains in full force and effect, not reversed, satisfied, or in anywise vacated; that the certificate of Brewster had in the meantime been lost, and, from a suspension of business in the land office, a duplicate could not be obtained previous to the death of Brewster in 1843; that this was issued in 1845 and placed, in 1847, in the hands of the defendant, with directions to survey nineteen hundred and twenty acres of land so as to include the improvement to which reference has been made.

The defendant, in his answer or return, states that he is informed and believes that John H. Duke, John H. Glover, and others are interested in the matters set forth in plaintiff's petition, and prays that they may be cited to defend, and himself released, as he has no other interest than as county surveyor; and in an amended return he states as his reasons for not surveying the said land according to the directions of the plaintiff that it appears from the records of his office that on the 20th July, 1841, seven hundred and fifty acres of the land were surveyed and recorded by his predecessor in office.

On the pleadings it was adjudged that, as it appeared from the answer of the defendant a portion of the land had been surveyed for other persons and the field-notes recorded, the rule should be discharged and the mandamus refused; and from this judgment an appeal has been taken to this court.

The allegations of the parties on applications for a mandamus to compel the survey or patent of lands are frequently so indefinite and vague as to the grounds on which the right is claimed or denied as to create embarrassment in rendering the judgment demanded by the justice of the case. The circumstances under which the applicant claims the right should be positively and distinctly stated, and objections which might be anticipated should be met and answered. (1 Chitty Gen. Prac., 808; 25 Maine R., 291.) In the answer or return of the defendant, according to the strict rules of the common law, the same certainty is required as in indictments, returns to writs of habeas corpus, counts, replications, &c.; and under any system there should be a reasonable degree of certainty. A fair and legal reason should be disclosed why the alternative mandamus should not be obeyed. (2 Tex. R., 461; 6 Tex. R., 495; 10 Pick. R., 59.)

This certainty of pleading on the part of the plaintiff or relator is essential as well from the general rule requiring in petitions, in all cases, a full and clear statement of the facts as upon the grounds...