Jennings v. De Cordova

• Decision Date: 01 January 1857
• Citation: 20 Tex. 508
• Parties: JOHN JENNINGS v. PHINEAS DE CORDOVA.
• Court: Texas Supreme Court

20 Tex. 508

JOHN JENNINGS

v.PHINEAS DE CORDOVA.

Supreme Court of Texas.

1857.

Quere, as to the effect of a valid survey for the very colonist, made before the closing of the land offices in 1835, where the final title was void because made subsequent to the closing of the land offices.

As said in the case of Cravens v. Brooke (17 Tex. 274), the only condition imposed by law to secure a pre-emption is that of settlement and improvement on vacant land; whether the settler supposed it vacant or otherwise, and entered without title or upon a claim of title supposed by him to be valid. 26 Tex. 332.

Had the appellant, within eight months after his settlement, discovered his mistake as to the validity of Owens' title (under which he entered) and then claimed to have a survey on the land as a pre-emptionist, his claim would have been valid against all locations made after his settlement, whether these locations were made before or after the appellant knew the land was vacant. 17 Tex. 268;27 Tex. 205;28 Tex. 240.

And if a settler should remain silent for years, he might at any time, no matter how long after the expiration of the eight months, claim the benefit of pre-emption, provided a location had not intervened and been so perfected as to exclude any opposing right or equity to the land. 21 Tex. 781;26 Tex. 244.

We are inclined to the opinion that the proof was sufficient to establish the fact of location (by appellee) in December, 1853, provided such location could have been received or entered by the surveyor without possession of the certificate, for there is no proof that the certificate was on file prior to August, 1854. If the entry was not valid without the possession of the certificate--and this is certainly the policy, if not the express letter of the law--the question would, without further difficulty, be settled in favor of the claim of the appellant, as his claim would then have priority in time. But admitting that appellee's location was prior, etc.

But admitting that the location was prior to the application of pre-emption, and waiving the argument that the provisions with respect to the survey of pre-emptions within eight months is directory, and that such claim is not forfeited by failure to make the survey within the time prescribed, we will proceed to consider the effect of the act of the 16th of August, 1856 (Acts, p. 39), which by its second section declares that all pre-emptionists who failed to have their land surveyed within eight months after their settlement, shall have eight months further time to do so.

The effect of the act of August 16th, 1856 (Acts, p. 39), which did not save the rights of third persons, was to revive the dormant equities of all pre-emption claims, under all the pre-emption laws from 1845 to the last on the statute book, where the fee had not already passed out of the government by the issue of a patent to a third person; and to give such claimants eight months within which to make their surveys; and to give priority to their surveys, where they had already been made, although made more than eight months after settlement, and after a location on the land by a third person, after the expiration of the eight months.

Where pre-emptionists had been required to have their claims surveyed within eight months after settlement, and a law was passed giving them eight months from the passage of the law, it was held that surveys made after the eight months from settlement, and before the passage of the law, were ratified by the aw, and that re-surveys were not necessary.

Appeal from Burnett. Tried below before the Hon. Thomas H. DuVal.

Action of trespass to try title to a league of land, by appellee against appellant and six others, brought to spring term, 1856. Appellant disclaimed as to all except seven hundred and seventeen acres specially described, to which he claimed title under David F. Owens, to whom he alleged the league was granted by the government in the early part of the year 1835. And for further answer defendant says he is informed that said plaintiff alleges that the aforesaid grant to Owens was and is void; and this defendant says, if it is true, which is denied, then that the survey of said league of land, made for said David F. Owens, as a colonist of the late republic of Texas, was lawfully made, at a time when there was no law prohibiting said survey, by reason of which this defendant avers that said Owens obtained a valid legal and equitable title to said land from the government of the republic of Texas, and that the field-notes of said survey were returned to the general land office within the time prescribed by law.

Defendant's answer then set up a pre-emption claim to 320 acres in case it should be held that the title of Owens was void. Defendant also denied that plaintiff had any title to the land for which he took defense. There was also a suggestion of improvements in good faith.

At the trial the plaintiff gave in evidence a copy of a letter from J. & P. De Cordova to the district surveyor of Milam county, without date, requesting an entry of the league of land now in controversy, by virtue of a duplicate certificate to John Stephenson, described by its number and date; certified on the 11th of August, 1854, by the district surveyor of Milam land district, to be a true copy of the original on file in his office. Then followed a certificate, of same date, by the district surveyor that the certificate of John Stephenson, as above named, is on file in my office, with file of same. The foregoing copy and certificate was on a half sheet of paper, on the back of which was indorsed, “Received on file December 6th, 1853. Wm. Armstrong, D. S. M. D.” Same surveyor who gave the copy. Plaintiff then gave in evidence a certified copy from the general land office of the John Stephenson duplicate certificate for a league of land, and proved the transfer thereof to himself. Plaintiff also proved, by a son of Jennings, that the latter went on the land in the fall of 1851, under deed from one Casner, and had been there ever since. Here plaintiff rested.

The defendant read in evidence, for the purpose of laying a predicate for possession in good faith (in the language of the statement of facts), a translated copy of the original grant from the government of Coahuila and Texas, issued by William H. Steel, commissioner of Robertson's colony, to David F. Owens, for the same league of land covered by plaintiff's location, dated 28th December, 1835; plaintiff admitting that the survey was made for Owens in the spring or summer of 1835. Defendant then proved a chain of title by mesne conveyances from David F. Owens to 718 acres of land to E. E. Casner, and a deed therefor from Casner to himself, dated May 27th, 1852, duly recorded. Defendant then proved his application for pre-emption survey of 320 acres, including his improvements, on the 24th of February, 1854, and a survey thereof on the 3d of March, 1854. Defendant then proved that seventy-seven acres of the pre-emption field-notes were on the Owens league, the value of his improvements, and the value of the land. There was no question as to the fact that the plaintiff had used due diligence to get his survey made and returned. A great many instructions were given and refused, but, in the view taken of the case by this court, they are not now important. There were also bills of exception to the admission and exclusion of testimony. The jury found for the plaintiff, but that the defendant settled in good faith, and was entitled to the value of his improvements, assessed at $540; and valued the 718 acres at $1.75 without the improvements. Judgment accordingly. Motion for new trial by both parties overruled, and appeal and cross-appeal.

Hamilton, Chandler & Co., for appellant. I. The survey for Owens was made in the summer of 1835. We submit the question whether or not, under the provision of the 10th section of the general provisions of the constitution of the republic, which declares valid all orders of survey legally obtained by any citizen of the republic, before the closing of the land offices, the land was subject to location by the plaintiff at all. If it was, then we insist that the land was public domain, and the proof shows that defendant settled upon the land, made improvements upon it, and had it surveyed under his pre-emption claim, before the plaintiff's certificate was filed for location.

II. We insist, under the first section of the act of 1845, that when a party has settled upon and improved a portion of the public domain that has not been filed upon, entered, located or surveyed, that these 320 acres, including such settlement and improvement, are exempt from location; and the 6th section of the act of 1845, requiring the pre-emptor to make the affidavit and have the land surveyed within eight months from the date of his entry upon the land, is directory only, and simply one of the stipulations of the contract between the settler and the government, and it matters not so far as the rights of third parti...