Patrick v. Nance

• Decision Date: 01 January 1862
• Citation: 26 Tex. 298
• Parties: H. D. PATRICK v. O. B. NANCE.
• Court: Texas Supreme Court

26 Tex. 298

H. D. PATRICK

v.O. B. NANCE.

Supreme Court of Texas.

1862.

A colonist who in 1845 settled upon and improved one of the then reserved sections of Peters' colony, and who remained thereon until the passage of the act of January 21, 1850, securing actual settlers in Peters' colony, was entitled to appropriate the land by certificate and survey in 1852, notwithstanding the location of a headright certificate made upon the land in 1846 by another person.

It was the duty of the district surveyor in 1852 to have received and recorded the field notes of such settler's survey then just made by a deputy surveyor; and the rejection of the field notes by the district surveyor, for the reason that they conflicted with a headright survey made for another party in 1846, was improper; and the settler or his vendee was thereby entitled to his legal remedy to compel the district surveyor to record his field notes.

But where no steps were taken to compel the district surveyor to perform his duty in this regard, and the period prescribed by law for the return of the field notes to the general land office was suffered to elapse without any effort to comply with the law, and the rejection of the field notes by the district surveyor was apparently acquiesced in until the state in 1856, after the reserved lands became subject to general appropriation, parted with its title by patent to the holder of the headright certificate located on the land in 1846: Held, that under such circumstances, the failure to return the field notes to the general land office within the prescribed period was fatal to the right of the settler to the land, and his vendee is precluded by such laches from impeaching the patent issued.

If the original field notes of a survey made by a deputy surveyor were not approved or recorded by the principal surveyor, they could not be properly returned to the general land office, nor become a record thereof; and consequently a certified copy of such field notes from the general land office was not admissible in evidence.

ERROR from Dallas. Tried below before the Hon. N. M. Burford.

This was an action of trespass to try title brought by the plaintiff in error against the defendant in error, for the recovery of a half section of land in Dallas county.

The land in controversy was part of one of the even sections of Peters' colony, and as such was reserved to the state by the colony contract. In 1846, Orson McDaniel, by A. Patrick, as his agent, filed a headright certificate for three hundred and twenty acres on the land in controversy, and procured its survey on the 19th of December, 1846, which was recorded by the district surveyor on the 9th of March, 1852. In 1845 Carlos Wise, a colonist, settled on the section and made improvements, which he continued to occupy until 1851. When A. Patrick as agent located the headright certificate in 1846, upon the land in controversy, Wise claimed the other half of the section, which included his improvements, and it was a disputed question whether he was not or would not become entitled as a colonist or settler to the whole of the section; and there was evidence to the effect that Patrick verbally engaged, in case Wise should be enabled to claim the whole of the section, to lift or float the certificate; under which engagement Wise assented to Patrick's location upon the half of the section not including Wise's improvements. On the 15th of November, 1850, Wise, being the head of a family, received from the commissioner, Ward, his settler's...