East v. Dugan

• Decision Date: 26 January 1891
• Citation: 15 S.W. 273
• Court: Texas Supreme Court
• Parties: EAST <I>et al.</I> v. DUGAN.

15 S.W. 273

EAST et al. v. DUGAN.

Supreme Court of Texas.

January 26, 1891.

Commissioners' decision. Error to district court, Archer county

Action by E. H. East, Richard K. Milton, Charles F. Milton, Mary L. Mitchell, and her husband, Sterling Mitchell, Ben F. Mitchell, Mary F. Pearson, and her husband, William W. Pearson, Sarah L. Pearson, Sarah E. Pearson, and Austin Pearson against George W. Dugan in trespass to try title to 320 acres of land, being the west half of 640 acres patented

to Madison M. Miller. Judgment in favor of defendant, and plaintiffs bring error.

S. Abercrombie, for plaintiffs in error. L. C. Barrett, for defendant in error.

COLLARD, J.

The court below decided that the plaintiffs below (plaintiffs in error) failed to make out a legal chain of title, and therefore gave judgment for defendant that he go hence with his costs. The evidences of title introduced by plaintiff are: Patent to M. M. Miller to the 640 acres of land, the west half of which is in controversy, patented by virtue of national road certificate No. 2, on the 12th day of January, 1868. Administration upon the estate of M. M. Miller, deceased, in Dallas county, by William B. Miller; order of sale by the probate court upon the application of the administrator to sell the certificate to pay debts of the estate, of date 27th of January, 1868; report of sale to Jesse Houx on a credit of six months, and confirmation of same, 30th March, 1868. Plaintiff then attempted to prove the existence and loss of a transfer of the certificate by Houx to George W. Guess, which the court below held insufficient for the purpose. Administration upon the estate of George W. Guess, June 3, 1872, by E. G. Bower; sale of the west half of the 640 acres of land to W. N. Coombes by order of the court in course of administration to pay debts, duly confirmed, April 6, 1883; deed of Bower, the administrator, to Coombes, pursuant to the order of the court, April 19, 1883; and deed of Coombes to R. R. Milton (ancestor of the Milton plaintiffs) and to plaintiff East. There was no evidence of a deed or transfer of the certificate by the administrator of Miller's estate, and no evidence that Knox ever complied with the terms of the sale. We are not, however, required to consider the question that might be involved in the absence of such proof, (but see Sypert v. McCowen, 28 Tex. 636,) because there is a controlling question as to the effect of the sale presented by the facts. The patent issued on the certificate for the land on the 12th day of January, 1868, and the order of sale and confirmation did not occur until afterwards, to-wit, on the 27th of January and the 6th of March, 1868. Such sale of the certificate did not convey the land that had already been appropriated and patented by it. It has been too often decided to require citation of authorities in this state that the certificate is a chattel until it is located and land has been appropriated by it; but when land has been located by it, and so severed from the public domain, the certificate is merged in the land. Before such location it is a mere right to locate land. After location it has served its function, and is merged in the land. The sale of the certificate at administrator's sale after patent does not convey the land. Houx acquired no title to the land or the certificate by the sale to him. We cannot follow the case of Peevy v. Hurt, 32 Tex. 146, in so far as it may hold contrary views to those expressed above. The conclusion, then, must be that the title to the 640 acres of land remained in the estate of Miller, notwithstanding the order of sale and confirmation of the sale of the certificate. We have only stated our opinion as to the law of such a sale by orders of the probate court of an estate in administration, and have intimated no opinion as to the law of such a sale by the owner of the land. It, then, becomes unnecessary to consider the assignment of error attempting to point out error of the court below in failing to find that the parol evidence offered by plaintiffs was sufficient to establish the existence and loss of a transfer of the certificate or the land by Houx to G. W. Guess. The assignment does not, however, raise the question intended, as it relates to existence and loss of the certificate, and not the transfer of it....