Heirs of Ross v. Mitchell

• Decision Date: 31 October 1866
• Citation: 28 Tex. 150
• Parties: THE HEIRS OF JOHN E. ROSS ET AL. v. WILLIAM L. MITCHELL ET AL.
• Court: Texas Supreme Court

28 Tex. 150

THE HEIRS OF JOHN E. ROSS ET AL.

v.WILLIAM L. MITCHELL ET AL.

Supreme Court of Texas.

October, 1866.

A contract for the location of a land certificate, when the terms of such contract are not shown, does not give, by implication, to the party locating the certificate and procuring the patent, a right to any portion of the land. The only assumpsit implied by law in such a case would be for the payment in money of the reasonable value of the services rendered.

Title to an interest in land cannot be sustained by mere inferences from isolated facts, without anything to show how, when, or from whom the claimant acquired his interest.

See the mortgage in the statement and the opinion in this case, as to the rights of the mortgagee of a land certificate, by virtue of a mortgage empowering him to “locate, enter upon, enjoy, and dispose of said land.” Such a clause must, like all others, be construed with reference to the character and purpose of the instrument. It cannot change the instrument from being a mere security for a debt to an absolute conveyance, nor does it enlarge the rights or privileges of the mortgagee, otherwise than for the purpose of giving him more ample and certain security for his money.

That the rights conferred by a mortgage cease when the debt thereby secured becomes barred by limitation is no longer an open question.

It was incumbent on parties claiming rights under the mortgagee, in the case above indicated, to show that the debt to the mortgagee was a valid and subsisting liability against the mortgagor, at the time the mortgagee assumed, by the exercise of his powers under the mortgage, to transfer to another an interest in the subject-matter of the mortgage.

ERROR from Ellis. The case was tried before the Hon. NAT. M. BURFORD, one of the district judges.

Suit for specific performance and for partition, commenced in the district court of Hill county, on the 31st day of May, 1856, by William L. Mitchell, against the plaintiffs in error. Subsequently the venue was changed to the county of Ellis, and Mitchell was joined by Stubblefield, as a co-plaintiff. These parties claimed one-third of the “John E. Ross league and labor,” as their “locative interest” in the tract. The derivation of their claim is substantially indicated in the opinion of the court, it being understood that Mitchell, the actual locator, claimed one-sixth by contract under Wynne, and Stubblefield the other sixth by purchase from Wynne. Wynne claimed the third under Taylor, whose interest in the certificate consisted in a mortgage from Ross, which, being referred to in the opinion, is here set out:

“This indenture, made the seventh day of August, A. D. one thousand eight hundred and thirty-nine, between John E. Ross, of the county of Harrisburg, republic of Texas, of the one part, and Nathan Taylor, of the city of Galveston, republic aforesaid, of the other part: Whereas, the said John E. Ross, by a certain obligation or writing obligatory, under his hand and seal, bearing even date herewith, stands bound unto the said Nathan Taylor in the sum of three hundred and twenty-five dollars, on the first day of October next ensuing the date hereof: Now, this indenture witnesseth, that the said John E. Ross, for and in consideration of the aforesaid sum or debt of three hundred and twenty-five dollars, and for the better securing the payment thereof unto the said Nathan Taylor, his executors, administrators, and assigns, or discharge of the said recited obligation, as of the further sum of one dollar, to him in hand paid by the said Nathan Taylor, at and before the ensealing and delivering hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released, and confirmed, and by these presents doth grant, bargain, sell, release, and confirm, unto the said Nathan Taylor, his heirs and assigns, all of a certificate for one league and labor of land, No. 1023, issued by the board of land commissioners for Harrisburg county to the said John E. Ross, as a citizen's headright, together with all and singular the rights, hereditaments, liberties, and privileges thereunto belonging or in anywise appertaining, with full authority to locate, enter...