Murphy v. Luttrell

• Decision Date: 20 May 1909
• Citation: Murphy v. Luttrell, 120 S.W. 905, 56 Tex.Civ.App. 149 (Tex. App. 1909)
• Parties: MURPHY et al. v. LUTTRELL et al.
• Court: Texas Court of Appeals

120 S.W. 905

MURPHY et al. v. LUTTRELL et al.

Court of Civil Appeals of Texas.

May 20, 1909.

On Rehearing, June 17, 1909.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Trespass to try title by T. N. Luttrell and others against John W. Murphy and others. From a judgment for plaintiffs, defendants appeal. Reversed, and judgment rendered.

Smelser & Vaughan and M. L. Harkey, for appellants. A. A. Ablowich, for appellees.

HODGES, J.

This is a suit in trespass to try title, instituted by the appellees against the appellants to recover a tract of land situated in Bowie county. The appellees claim as the heirs and purchasers from the heirs of William McDonald, who was the owner of a headright certificate authorizing him to locate and survey a league and labor of land, issued in 1838. They rely for title upon a location and survey made upon the land sued for by virtue of an unlocated balance of this headright certificate. McDonald died some time about 1849, but prior to his death transferred a one-half interest in his certificate to one T. W. Clark. The record shows that in 1872 a tract of land in Bowie county, including that in controversy, was surveyed for one John L. Riddle, purporting to be done by virtue of the McDonald certificate, or rather of one issued for the unlocated balance due upon that certificate. Whether Riddle was the owner of the certificate, or was merely an agent acting for the real owners in having the land located and surveyed, does not appear. The field notes of this survey were promptly returned to the land office; but no patent ever issued because the location was in conflict with an older survey made for the De Kalb College, and this was noted upon the returns made. Aside from this objection, the location and survey appear to have been regular and made according to the legal requirements then existing. The appellants, defendants below, pleaded not guilty, and to defeat the claim of title offered in evidence by the appellees they offered the following: (1) The record of a survey for 1,211 acres made for the De Kalb College in 1843, which was subsequently shown to include the tract here involved; (2) a certified copy of a certificate issued by the clerk of the district court of Red River county in 1841, certifying that certain individuals, naming them, as the trustees of De Kalb College, were entitled to a survey of four leagues of land in accordance with a statute approved January 26, 1839, by the Congress of the Republic of Texas, and reciting that an application had been made to the district court for a certificate for the land, and that the court, in response, had decreed that the trustees and their successors in office were entitled to one league of land, being one of the four leagues above mentioned, to be surveyed and located on any lands not otherwise appropriated, for the benefit and use of the De Kalb College; (3) a patent from the state issued to the trustees of the De Kalb College, dated May 24, 1907; (4) deeds from the De Kalb College, signed by the president and secretary, conveying the land sued for to the appellants. It was also shown that the field notes of this survey were returned to the land office in 1855. The case was tried before the court without a jury, and judgment rendered in favor of the appellees, awarding them the land sued for.

The court filed no findings of fact or conclusions of law, and we are not advised as to what formed the basis of the judgment. We think, however, that the controlling question is one of title as between the appellees, who claim under the location made by virtue of the certificate issued to William McDonald, and the appellants, claiming through the patent issued to the De Kalb College, or upon the fact that the De Kalb College held a superior outstanding title. In suits of this character the plaintiffs in the case must recover, if at all, upon the strength of their own title, and not upon the weakness of the claim of their adversaries. We shall assume that the evidence is sufficient to connect the appellees by inheritance and otherwise with the ownership of the McDonald certificate located and surveyed for John Riddle upon the land in controversy, and that the location and survey and the return of the field notes were all done regularly and in the manner required by the existing law, and shall consider the strength of their title from that standpoint. This would be evidence sufficient to show prima facie an appropriation of the land and an equitable right to the title and possession; but upon the production of a patent issued by the state to another the prima facie case was overcome, and the burden rested upon the appellees to show a legal or equitable right to the land superior to that of the patentee. Johnson v. Eldridge, 49 Tex. 507; Miller v. Browson, 50 Tex. 591; Deen v. Wills, 21 Tex. 649; Miller v. Moss, 65 Tex. 181; Clements v. Egleston, 2 Posey, Unrep. Cas. 483; Rutherford v. French, 2 Posey, Unrep. Cas. 725. It is true this patent was not issued to the college for this particular land until the year 1907; but when issued it vested in the college the absolute right to the land except as against the state or some one having a prior legal or equitable claim. Wood v. Durrett, 28 Tex. 438; McLeary v. Dawson, 87 Tex. 535, 29 S. W. 1044. The De Kalb College was created by an act of the Congress of the Republic of Texas passed January 26, 1839. 2 Laws of the Republic of Texas 1838-39, p. 128. The provisions of the act material to this controversy are as follows:

"An act to establish and incorporate the college of De Kalb:

"Section 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas in Congress assembled, that there shall be and is hereby established a college at the village of De Kalb, in the county of Red River, to be under the superintendence of James Browning, David ____, James N. Smith, Richard Graham, William ____, John H. Dyer, Jackson Titus, Hiram A. Allen, Richard Ellis, Isaac Jones, George Wright, John Fowler, Holland Coffee, and their successors, who are hereby constituted a body politic and corporate, in deed and in law, by the name and style of the Trustees of the College of De Kalb; and by that name, they and their successors shall and may have perpetual succession, and be able and capable in law to have, receive and enjoy, to them and their successors, lands, tenements and hereditaments, of any kind or value, in fee, or for life, or years, and personal property of any kind whatsoever, and also all sums of money of any amount whatsoever which may be granted or bequeathed to them for the purpose of promoting the interest of the said college.

"Sec. 2. Be it further enacted, that the trustees of the College of De Kalb shall and may have a common seal for the business of themselves, their successors, with liberty to change or alter the same from time to time, as they shall think proper, and that by their aforesaid name, they and their successors shall and may be able to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all courts of law and equity within this republic, and to grant, bargain, sell or assign any lands, tenements, goods or chattels, in such manner as may hereafter be specified, and to act and do all things whatsoever for the benefit of the said institution, in as ample manner as any person, or body politic or corporate, can or may do by law."

"Sec. 4. Be it further enacted, that the first meeting of the board of trustees shall be at the said college on the first Thursday in March, 1839, when they shall proceed to elect out of their own body, a president, secretary and treasurer; the president shall have power to call extraordinary meetings of the trustees, by giving the members due notice thereof. The ordinary meetings of the board shall be on their own adjournments; seven men shall constitute a board to do business. In case of death, removal from the country, resignation, refusal or neglecting to act, of any of the trustees, the board may at any time appoint a successor.

"Sec. 5. Be it further enacted, that the trustees of the College of De Kalb, and their successors, shall have power to engage a president and other professors, and all other officers necessary for the conducting the literary concerns of the college, and to displace and appoint others at pleasure; they shall have power and authority, and it shall be their imperative duty, to examine the proficiency of the students and to make all laws and regulations (not contrary to the Constitution of the republic) which they shall deem necessary for the good government of said college, and for promoting learning, morality and virtue, among the students; they shall take effectual care that students of all religious denominations may and shall be admitted to equal advantages, and that they receive alike fair and generous treatment during their residence thereat.

"Sec. 6. Be it further enacted, that the lands, public buildings and other property belonging to the College of De Kalb, are hereby declared to be free from any kind of public tax."

"Sec. 10. Be it further enacted, that (there) shall be granted to the trustees and their successors in office, four leagues of land, to be located on any vacant and unappropriated lands in the republic, in tracts not less than one league square, and that the board of land commissioners for the county of Red River, are hereby authorized and required to issue certificates in tracts not less than one league square, in the name of the trustees of De Kalb College and their successors, without charging any fees for the same; and the said trustees and their successors are empowered to employ any legally authorized surveyor to locate and survey the same, and make return of his field notes, which shall be received and examined by the county surveyor in the same manner as prescribed by law, without charging any fees for the...