Prewitt v. Farris

• Decision Date: 31 December 1849
• Parties: PREWITT v. FARRIS.
• Court: Texas Supreme Court

5 Tex. 370

PREWITT

v.FARRIS.

Supreme Court of Texas.

December Term, 1849.

There is no appeal from the judgment of a justice of the peace and six jurors under the 17th section of the land law of 1837.

The jurisdiction of a justice of the peace and six jurors under the 17th section of the land law of 1837 is confined to cases of conflicting claims before the field-notes have been delivered to either party. The proceeding is for the information of the surveyor. If he has already delivered the field-notes, the case has gone beyond his reach, and the remedy of the subsequent claimant, if any, must be sought in another tribunal.

On a general demurrer the pleading demurred to is to receive a liberal construction; and if it substantially disclose a good cause of action or ground of defense, the judgment should be against the demurrer. In case of a special exception showing a want of form or that the allegations are not sufficiently special and circumstantial, a more rigid rule should be applied. (Note 66.)

Appeal from Cass. The appellant filed his petition in this case in the District Court on the 1st day of March, 1849, in which he alleged that some time in the early part of the year 1842 he placed his conditional headright certificate for six hundred and forty acres of land in the hands of one Allen Urquhart, then a deputy surveyor under one Levy Jordan, who was then a principal or county surveyor, for the purpose of having a piece of land secured, and that he subsequently thereto procured one Burrell Parker to designate and point out to said Urquhart the land intended to be surveyed; that on the 28th of June, 1842, “as appears from the field-notes, a copy of which is herewith exhibited, marked A and B,” said Urquhart surveyed and marked the line of the land in two tracts of three hundred and twenty acres each, and that said land had ever since been known as petitioner's land; that petitioner had ever since continued his efforts to secure said land by filing with each surveyor his certificate; that he had never done any act with a design to relinquish his interest in the land; that he removed to the said land in the early part of the year 1848, and made large improvements on the same; that the defendant, Farris, with a full knowledge of all these facts, caused a summons to be issued by one Baker, a justice of the peace of the county, to petitioner for the purpose of trying the location, on the 23d of February, 1849, before him, the said Baker; that he attended the trial, and moved the court to dismiss the case for want of jurisdiction, and produced before the court his field-notes, but said motion was overruled, and he was forced into a trial; that he had been advised by his counsel that his field-notes were a full and sufficient defense, and therefore had no witness in attendance to prove any of the facts that were by the justice of the peace deemed necessary to be proved, or to contradict those brought against him, all of which he could have refuted had he been advised that they were material; that on the trial the defendant was permitted to introduce a file made on the said land in the year 1847, when the claim of petitioner was fully known by the defendant to exist; that evidence was permitted to go to the jury to vacate petitioner's previous file and survey by attacks on the acts of the officers; that petitioner is advised that after land has been surveyed and the lines run and marked, a justice of the peace has no power to issue a summons and have a jury to try the right of location; that there was a verdict and judgment against petitioner. He further alleged that he has been in the possession of the land for more than twelve months, and had done all he could to consummate his title. He prayed for a writ of injunction, restraining the justice of the peace from further proceedings in the premises, and restraining all other officers and persons from further proceedings; that citation be issued, and that the injunction be made perpetual; that if mistaken in his remedy, he prayed for a certiorari and supersedeas.

The judge of the District Court granted the order for an injunction and supersedeas. After the injunction and supersedeas and bond, and also the citations, before the appearance of the defendant, there was spread on the record what purported to be copies of field-notes made for the plaintiff by the deputy surveyor, Urquhart, and approved by Jordan, the surveyor, of two tracts of three hundred and twenty acres each on his headright certificate, but bearing no date as to when surveyed or approved, or when certified to be copies, nor did it appear when they were filed in court, or by whom. They however bore the mark as exhibits A and B referred to in the petition.

The defendant demurred to plaintiff's petition, and answered. In his answer he denied that the plaintiff ever had any legal survey of the lands in controversy; that if any survey was made for him, no certificate authorizing such survey was in the hands of either the surveyor or deputy surveyor; and for further answer he alleged that the record in the surveyor's office in the said district showed that the survey now attempted to be set up is and was wholly void, no certificate ever having been applied to said survey; and he denied all the allegations in the petition. The record then showed what purported to be copies of the field-notes of two surveys made on the 28th of June, 1842, for the plaintiff on his headright certificate, certified by the deputy surveyor, Urquhart, and examined and approved by the surveyor, Jordan, and certified by the county surveyor at present to be transcripts from the records of the surveyor's office. These surveys seemed, from the filed-notes, to be for the same land mentioned in exhibits A and B, and on the margin of each of them the following words were written: “This survey made void, there never having been any certificate applied to the survey.” These marks on the margin are not dated nor signed by any person, but are to be found on the margin of both copies as cited. It did not appear by whom they were filed, nor were they made exhibits by either of the parties.

The plaintiff moved the court to perpetuate the injunction, and for a writ of prohibition to the justice of the peace, and the defendant in the injunction to stay all further proceedings in the suit enjoined on the ground that the magistrate had no jurisdiction to hear and determine the matters in the said suit; which motion was overruled; and the court decreed a dissolution of the injunction, and a dismissal of the case from the docket at the costs of the plaintiff; from which judgment and decree the plaintiff appealed.

Rogers and Ferris, for appellant.

Everett, for appellee.

LIPSCOMB, J.

The...