Ellis v. Batts

• Decision Date: 01 January 1863
• Citation: 26 Tex. 703
• Parties: MORGAN P. ELLIS v. JAMES H. BATTS AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 703

MORGAN P. ELLIS

v.JAMES H. BATTS AND OTHERS.

Supreme Court of Texas.

1863.

The holder of a survey and the surveyor thereof were both enjoined from sending up the field notes previous to the passage of the act of February 10, 1852 (General Laws, 1852, p. 58), which provides “that the field notes of all surveys made previous to the passage of this act shall be made out and returned in the manner now required by law to the general land office, on or before the 31st day of August, 1853, or they shall become null and void, and the said surveys shall become vacant, and be subject to be relocated and surveyed as in other cases, by any persons holding a genuine land certificate or other legal evidence of claim to land:” Held, that the title of the holder to the land by virtue of his location and survey was not forfeited by reason of his failure, on account of the injunction, to return the field notes within the time prescribed by said act to the general land office.

Subsequent to August 31, 1853, but pending the injunction as above stated, the land was surveyed for and patent issued to a third party, having knowledge of the prior survey and of the pendency of the injunction. Such second survey and the patent issued thereon were held to be null and void.

A general law will not be held to repeal a particular and special law upon the same subject.

ERROR from Smith. Tried below before the Hon. R. A. Reeves.

The facts appear in the opinion of the court.

Donley & Anderson, for plaintiff in error. There are, we submit, but two material points presented in the cause. The first is, did the injunction granted to Wells, the plaintiff, relieve the defendants from the necessity of complying with the requisitions of the act of 1852, requiring the return of the field notes of defendant's survey, prior to the 31st of August, 1853? The second is, did the statute of limitation commence running against the intervenor before his right to the land had accrued, as against the plaintiff, who shows no title? In presenting the first question, we would refer again to the manner in which this cause was conducted. The suit had been in existence for nearly ten years anterior to the time when the intervenor acquired his title and made himself a party to the suit, and during that period, conducted with a degree of negligence and carelessness that has, we hope, scarce a parallel in the state, and in which both plaintiff and defendant had displayed about an equal participation.

The ordinary diligence required of parties in preparation for trial, had it been pursued by the defendant, would surely have ended the litigation anterior to the time required by law to return his field notes; and even admitting that the injunction could relieve him, ordinarily, from the consequence of not having done so, yet in this instance, the continuance of the injunction was caused by his own neglect in failing to make preparation and force his adversary to trial. In White v. Holliday, 20 Tex. 679, the excuse for not returning the field notes by the 31st of August was, that they were filed in a suit pending between the parties, and that the judge of the court, although applied to in vacation for that purpose, would not grant the order, and that the opposite party would not consent to it; and it did not appear that he sought to withdraw them during the several succeeding terms that expired afterwards, before the 31st of August, 1853. And the court decided that the excuse was not sufficient. See White v. Holliday, 20 Tex. p. 681.

We submit that this cause bears a strong and striking analogy to the cause above referred to, and in principle is not at all dissimilar.

The injunction never was of any advantage to the plaintiff, for even had defendant gone on to perfect his title and procured a patent, it would not have prejudiced the plaintiff's right, if he ever had any. And it would have taken but a slight showing at a later period, when the proceedings in causes like this were better understood by the courts, to have dissolved the injunction. But although the defendant pleads that he made a motion to dissolve the injunction, in order to send up the field notes to the general land office, yet in truth, no such motion ever was made, and no other effort to comply with the requisitions of the statute of 1852.

It would have been in the discretion of the court to dissolve the injunction at any time, by showing that irreparable mischief would result from its continuance. Poor v. Carleton et al. 3 Sumner, 70, and authorities there cited. And we would further submit--even if there were no authority or precedent precisely analogous to the question--that the expansive powers of equity are capable of reaching all new cases arising, and always adapt itself to them in such way as to prevent its powers from working hardships or wrong; and...