Jacob Elliott's Adm'r v. Mitchell

• Decision Date: 01 January 1877
• Citation: 47 Tex. 445
• Parties: JACOB ELLIOTT'S ADM'R v. DAVID R. MITCHELL ET AL.
• Court: Texas Supreme Court

47 Tex. 445

JACOB ELLIOTT'S ADM'R

v.DAVID R. MITCHELL ET AL.

Supreme Court of Texas.

1877.

(Associate Justices MOORE and GOULD, having been of counsel, were disqualified. This fact was certified to the Governor, who appointed Charles S. West and William M. Walton special justices for the trial and determination of this cause.)

Special Court: ROBERTS, Chief Justice; WEST and WALTON, Associate Justices.

APPEAL from Navarro. Tried below before the Hon. F. B. Wood.

The facts are given in the opinion.

No brief for appellants came to the reporters.

C. M. Winkler, for appellees, cited Lambert v. Weir, 27 Tex., 359;Kimbro v. Hamilton, 28 Tex., 560;Overton v. Crockett, 12 Tex., 523;Whitehead v. Foley, 28 Tex., 14; Angel on Lim., 417, 418, 427, 428; Johnson v. Irvine, 3 Serg. & R., 290; Jackson v. Howe, 14 Johns., 405;Doe v. Thompson, 5 Cowen, 371;Doe v. Campbell, 10 Johns., 475; Gonzales v. Ham, 6 Serg. & R., 291; Farley v. Lenox, 8 Serg. & R., 392.

R. Q. Mills, also for appellees.

C. S. WEST, SPECIAL JUSTICE.

This suit was instituted in June, 1852, against twenty-five defendants, for two leagues of land. By compromise and settlement, however, the number of defendants has been reduced to two, and the controversy as to the land has been narrowed down to less than two thirds of a league.

The present appellees are the executors of Solomon Van Hook, one of the original defendants, who died pending this suit, and Jubilee L. McKinny, also one of the original defendants.

The appellees did not rely on the statutory plea of “not guilty,” but set up four grounds of special defense.

1. That the plaintiff's title, a grant of a league of land made to Rachel Leach on the 27th of October, 1835, by George Antonio Nixon, commissioner, to extend titles to Burnett's colonists, was void for want of authority in that officer to make it, because the land lay beyond the limits of the colony.

2. That the defendants were innocent purchasers, in good faith, and for a valuable consideration, without notice from the State, under junior patents, because the Leach league was not placed on the maps of the county until after the issuance of the patents under which the appellees claim.

3. That the grant is void, for uncertainty in its calls, and is incapable of identification on the ground.

4. The statutes of limitation of three and five years were also relied upon.

I. With regard to the first defense, it will suffice to say, that it was based upon the conclusion that the proper mode of ascertaining the boundaries of Burnett's colony was to begin the survey of it at the public square of the town of Nacogdoches, and run thence north 24° west fifteen leagues; thence south, 78° west to the west bank of the Navasota river; and that, run in this manner, the league of land in suit would lie fifteen or eighteen miles north and beyond the limits of the colony.

On this point, however, this court held, when this case was before it at a former term, (Elliott v. Mitchell, 28 Tex., 109,) that this was not the proper mode of running the lines of the colony, and laid down the proper rule.

Applying the rule thus laid down to the evidence in the case now before us, it seems reasonably certain that this league was within what was recognized and generally understood to be the boundary of Burnett's colony; and even if it were made to affirmatively appear that it was not precisely within these boundaries by actual measurement, yet, as the lines and boundaries of the colony were never actually run on the ground, under the decision of this court in Hamilton v. Menifee, 11 Tex., 749, on a similar question, we would still hold that the title to that league was not void, under these circumstances, for want of authority in the officer issuing it.

II. In support of their second defense, the appellees relied upon the fact, proven by them, that the Beach league had never been delineated upon any map of the General Land Office until the year 1854, several years after the date of the patents under which they held.

The evidence discloses the fact that the original title to the Beach league was filed in the General Land Office as early as 1838, and that it still remained on file there. In Byrne v. Fagan, 16 Tex., 393, this court held that if the original title was on file in the General Land Office, the mere failure of the officials, whose duty it was to delineate the surveys on the proper maps of the county, to do so, could not prejudice the rights of the owner.

In the case at bar it appears that the Beach league was not delineated, because there was a dispute as to its proper location. In the case last cited, the court say: “An owner might believe his lines to be correctly delineated, at least as much so as is required under the general law of the land, and as is usual under old titles in other parts of the State; and relying on his ability to trace his lines and identify his lands when required to support his title, he might well refuse to incur the expense of a resurvey, and his failure or refusal could not impair his ultimate right. If, from such failure, the grant was not delineated on the county map, the Commissioner of the General Land Office might regrant the land; but in the controversy between the two titles, the elder grant, if capable of identification, must prevail over the junior patent.” (Musquis v. Blake, 24 Tex., 466;Wilson v. Williams, 25 Tex., 65.)

Under this decision, it is plain that, in a case like the present, the older grant will not fail because not on the map, if it be capable of identification.

III. The evidence as to the location of the grant in this suit, and the identity of its lines, is quite voluminous. It is not necessary to notice it further than to say that the proof adduced on the trial was sufficient to identify and locate the grant; and if the verdict of the jury rested upon that issue alone, the judgment would not be reversed.

IV. Such, however is not the case. There was still the defense of the statute of limitations.

The evidence fully sustained this defense, both under the three and the five years' statute, in favor of the appellee McKinny, holding under the James Powell one third of a league certificate and patent.

As to the remaining defendants, who are the executors of Solomon Van Hook, the evidence in support of this defense is substantially as follows: On January 20, 1838, the County Court of Fort Bend county issued a genuine headright certificate for one third of a league to Wiley Powell, under which the land was surveyed the...