Hume v. Ware

• Decision Date: 10 December 1894
• Citation: 28 S.W. 935
• Parties: HUME et al. v. WARE.
• Court: Texas Supreme Court

28 S.W. 935

HUME et al. v. WARE.

Supreme Court of Texas.

December 10, 1894.

Certified questions from court of civil appeals, Third supreme judicial district.

Action by Robert Ware against J. L. Hume and another to recover land. The case was taken to the supreme court on certified questions from the court of civil appeals.

Hewlett & Von Rosenberg and R. C. Walker, for appellants. D. W. Doom, for appellee.

BROWN, J.

The land in controversy was located by virtue of certificate No. 30/191 class scrip issued to the B. B. B. & C. R. Co. When it was located does not appear. The patent issued May 22, 1876. J. M. Douglass transferred the certificate to John R. West August 16, 1877. The statement accompanying the certified questions does not show how Douglass claimed the land or certificate.

Questions: "(1) Does the instrument above set out [the transfer from Douglass to West of the certificate, not necessary to copy] convey title to the grantee therein named to the land in controversy, which had been previously patented by virtue of certificate No. 30/191 therein conveyed? and if so, was the title so conveyed to said grantee a legal or equitable title? (2) If it is held that the instrument does not in and of itself convey the land previously located by virtue of said certificate, will it be permissible to show by other testimony that the parties thereto intended said instrument to convey the land, or, on the other hand, that it was intended to convey only the certificate?"

The transfer of the certificate conveyed to the grantee an equitable title to the land located by virtue thereof if the grantor had title to the land. Lewis v. Johnson, 68 Tex. 448, 4 S. W. 644; Simpson v. Chapman, 45 Tex. 566; Hearne v. Gillett, 62 Tex. 25; Thomson v. Langdon (decided at present term of this court), 28 S. W. 931. It is true that all of the cases cited were instances of transfer of the certificate after location, but before patent, but we can see no difference in principle between those and the present case. When the certificate was located, it became merged in the land, and it was no more a part of the land after than before patent. It is not intended to overrule East v. Dugan, 79 Tex. 329, 15 S. W. 273, which is distinguishable from this case in the fact that in that case the certificate was sold by the order of the probate court, after the patent issued to the land. The law requires that the order of the probate court shall describe the land which is ordered to be sold, and it must be advertised 20 days, and sold on the first Tuesday in the month, at the...