Houston & Tex. Cent. R. R. Co. v. McGehee

• Decision Date: 01 January 1878
• Parties: HOUSTON AND TEXAS CENTRAL R. R. CO. v. T. G. MCGEHEE.
• Court: Texas Supreme Court

49 Tex. 481

HOUSTON AND TEXAS CENTRAL R. R. CO.

v.T. G. MCGEHEE.

Supreme Court of Texas.

1878.

APPEAL from Llano. Tried below before the Hon. E. B. Turner.

The facts are stated in the opinion.

Hancock, West & North, for appellant.

I. The court erred in refusing the instructions asked by appellant. The instructions refused are set out in the opinion. (1 Paschal's Dig., arts. 4573, 4574, and notes 1009, 1010, p. 752; Id., art. 4526, p. 745; Ward v. Conner, 33 Tex., 549.)

II. Although the previous entry and location was not made on the surveyor's book, yet the lawful surveys made under these valid certificates will give a superior right to that acquired by another party by virtue of a patent junior in date to such survey, unless the patentee can show a valid location or survey prior in date to the unpatented survey. (Wyllie v. Wynne, 26 Tex., 43;Sherwood v. Fleming, 25 Tex. Supp., 408;Hollingsworth v. Holshousen, 17 Tex., 47;Horton v. Pace, 9 Tex., 83.)

III. The application and file actually made in the surveyor's office by appellant, is notice to a subsequent locator, whether he found it in the file book or not. (Ward v. Conner, 33 Tex., 566;Morris v. Byers, 14 Tex., 278; McGehee v. Chadoin, 30 Tex., 644.)

IV. The court erred in not granting a new trial, as the evidence showed that appellant had made a valid location and entry in accordance with law, and that appellee had constructive notice of it, and the appellee had actual notice of the prior location and entry of appellant at and before the time he made his location. (Byrne v. Fagan, 16 Tex., 391;Wilson v. Williams, 25 Tex., 64;Franklin v. Kesler, 25 Tex., 138.)

V. The evidence of J. J. Groos and copy of Kuechler's letter were competent, and should not have been excluded from the jury. (Wilson v. Williams, 25 Tex., 64;Wells v. Fairbanks, 5 Tex., 582.)

VI. The judgment of the court is not warranted by the pleadings.

The defendant has no other pleadings than a general demurrer and general denial and plea of not guilty, and he is not entitled to affirmative relief by the judgment of the court in this statutory action of trespass to try title. (McKey v. Welch, 22 Tex., 390;Herndon v. Rice, 21 Tex., 458;Patterson v. Goodrich, 3 Tex., 331.)

Makemson & Fisher, for appellee.

I. Did appellant, at the time of location and survey of appellee's certificate, have a valid file or survey?

There must have been either a written file or entry designating the land, which file or entry must have been made at the office of the surveyor, and recorded in the file or entry book belonging to the surveyor's office; or, in the absence of this written file or entry, the appellant must have gone upon the land and designated it, and have had it surveyed prior to the intervening file or survey of appellee. (Paschal's Dig., 4573; Ward v. Conner, 33 Tex., 549;Fowler v. Hilburn, 21 Tex., 490;Hollingsworth v. Holshousen, 17 Tex., 43, 44;Lewis v. Durst, 10 Tex., 416.)

II. The court erred in its charge to the jury on the question of notice, and on the legal effect to be given to the patent.

1st. If appellee had notice, either actual or constructive, of a prior file or location made by appellant upon the land in controversy, then the judgment should be reversed. If not, then, so far as this proposition is concerned, it should not. (Lewis v. Durst, 10 Tex., 415, 416;Guilbeau v. Mays, 15 Tex., 416, 417;Danforth v. Wear, 9 Wheat., 673;Matson v. Hord, 1 Wheat., 130;Johnson v. Pannel, 2 Wheat., 206;Garnett v. Jenkins, 8 Pet., 75;Weir v. Van Bibber, 34 Tex., 229.)

2d. A patent is prima-facie evidence of title, and raises the presumption that all necessary steps have been taken to procure a patent, viz., a valid certificate, a proper file, a proper survey, and that the field-notes were recorded and returned to the General Land Office within twelve months.

It does not imply that the party's right claiming under it commenced back of the date of the patent; and if it becomes necessary to show a right anterior to that date, the party claiming under it must show how and when the right really attached. (Carter v. Spencer, 4 How., (Miss.,) 56; Surget v. Doe, 24 Miss., 118; Griffith v. Deerfelt, 17 Mo., (Bennett,) 31; Minter v. Shirley, 45 Miss., 376.)

3d. We respectfully submit the following as the law: First, the entry, to be valid, must be made in writing, describing particularly the land sought to be located, which entry must be made at the office of the surveyor, and recorded in the file or entry book kept by the surveyor for that purpose, and must be accompanied with the file of the certificate or scrip; or, second, if made without entry, it must be followed by a survey prior to the entry or location of any other certificate by some other person. (Paschal's Dig., art. 4576; Ward v. Conner, 33 Tex., 545.)

III. The only questions--priority of location and of notice--were questions of fact, to be passed upon by the jury; and if there was a conflict of testimony, the jury had the right to reconcile the conflict, and give credit or weight to that portion of it that they saw proper. (Merriwether v. Dixon, 28 Tex., 19;Montgomery v. Culton, 23 Tex., 156;Baldridge v. Gordon, 24 Tex., 288;Anderson v. Anderson, 23 Tex., 641;Cummings v. Rice, 19 Tex., 226;Alley v. Booth, 16 Tex., 94;Chevallier v. Denson, 8 Tex., 439.)

ROBERTS, CHIEF JUSTICE.

Appellant was the plaintiff in the suit of trespass for the trial of the title to the land in controversy. Appellee, the defendant below, plead not guilty. Plaintiff's claim rested on two propositions of fact, as shown by the evidence stated in the briefs of both of the parties in advancing the case, upon which there was no material difference between them.

1. That plaintiff made a valid file upon the land before the file of defendant, McGehee.

2. If his file was irregular and not complete, it was substantially sufficient, because McGehee was put upon notice of it at the time he made his file subsequently.

Under the first proposition of fact, the evidence as stated showed certainly that defendant made a file on the 17th of April, 1868. But as to the file of plaintiff having been previously made, when it was claimed to have been made, to wit, on the 13th of May, 1867, or at any time previous to defendant's file, there was a direct conflict of evidence,--Cowan, the surveyor, swearing that it was entered in the file book kept by him, and another witness swearing that it was not in the book previous to the defendant's file, supported in a degree by several others.

Upon the second proposition of fact, Cowan swore that plaintiff's agent made a verbal designation of the land to be surveyed, pointing it out on the county map, and he (Cowan) entered it in his file book, which he kept for the purpose, the county not then having furnished him with a file book or an office; and that when the defendant's agent, his son, made his file afterwards, he told the agent, and sent word to the defendant, about the previous file of plaintiff having been made. On the other hand, said agent of defendant swore that no such information was given or sent; that the file book referred to was examined and no such file was found; that the surveyor said the land was not then filed on; and this was supported by another witness, who then and there examined the book with the agent, and stated that no such file as that of plaintiff was then in the book.

It was proved that plaintiff's survey was made a few days after the date of defendant's file, to wit, on the 23d of April, 1868; and defendant's patent issued for the land in 1872. The land sued for and claimed by the plaintiff was covered by the defendant's file and patent. It is unnecessary to mention other incidental facts pertaining to the validity of the respective claims on each side.

It was evident, that, under this conflict of evidence, this court could not reverse the judgment rendered in favor of defendant, upon the ground that the verdict was contrary to, or not supported by, the evidence. Therefore, the appellant, in making the brief upon which to advance the case, selected the assignments of error relating to errors of the court, in refusing the charges asked by the plaintiff, in giving the charge that was misleading, in excluding the evidence, and in rendering the judgment under which the propositions were made; and the subjoined facts, and other matters of record, were stated.

The third assignment of error, first presented, is that “the court erred in refusing the instructions asked by appellant,” under which two propositions were set forth.

“First proposition: The verbal designation of the land appropriated, made by the appellant to the proper surveyor, and the indorsement by the surveyor at the time on the certificate, and writing the application, or a full memorandum of it, in his book of files and entries, is as valid, if accompanied by the deposit with the surveyor of the land certificate at the time, and has the same effect as to notice to third parties, as an application and designation in writing signed by the party, and recorded in such file book, would be.” That is a correct proposition only upon the hypothesis that such book was kept in the office of the surveyor as prescribed by the statute of 1856, so as to be accessible to those who might desire to make a file on the same land. And in the absence of there being a surveyor's office in which said book was kept, a person subsequently making a file upon the same land should be put upon notice in some way or other, which alternative is not embraced in the proposition; and neither one of the qualifying facts here brought to view is contained in the statement of facts made under and in support of this proposition. The statement under this proposition should also have contained the substance of any charge that was given on this subject, or if none was given, that fact should have been stated, so as to have shown that it was not unnecessary for this charge to have been...