State v. Sandlin
| Decision Date | 07 April 1965 |
| Docket Number | No. 5691,5691 |
| Parties | The STATE of Texas et al., Appellants, v. Mary Dan Wilson SANDLIN et al., Appellees. |
| Court | Texas Court of Appeals |
Waggoner Carr, Atty. Gen., Milton Richardson, Asst. Atty. Gen., J. S. Branwell, Asst. Atty. Gen., Austin, for appellants.
Black & Stayton, Austin, for appellees.
This is a trespass to try title suit filed by appellees against appellant State of Texas (and other parties who have been dismissed), seeking recovery of the fee simple title to certain lands including Section 37, Block D-11, T. C. Ry. Co., which is the land here in controversy. It seems that on August 9, 1881 a deputy surveyor of Pecos County, named Charles Archer, made a survey establishing the boundaries of Section 37, which lies in what is now known as Brewster County, but which at that time was in what was known as Presidio County. The surveyor, Archer, was not authorized to survey in Presidio County, his own district being Pecos County. Section 37 was patented on the Archer field notes by the State of Texas on June 5, 1884. On August 22, 1882, one S. A. Thompson, Deputy Surveyor of Presidio County, surveyed the same territory and described the land in question as Section 62, Block 343, Tex-Mex Ry. Co. In 1887 Brewster County was created from Presidio County by act of the 20th Legislature for the State of Texas.
Appellants argue that the Archer survey, described as Section 37, was void because Archer was surveying outside of the area of his own county and district; that the Thompson survey in 1882 was the legal and proper survey because he was deputy surveyor for that area; that the granting of the patent above referred to was void because it was based on an invalid and void survey; and lastly, that the Validating Act of April 16, 1889 did not validate void surveys where subsequent intervening rights have occurred, and that here, 471.8 acres had, since these surveys, been appropriated to a permanent school fund of the State of Texas. The trial court granted judgment to the appellees.
Appellees argue that the defect was curable and was cured by the patent issued by the State of Texas, and the defect itself by legislation, to-wit, the Validating Act above mentioned.
We find ourselves in agreement with the trial court for the following reasons. The cases cited by appellants to support their position that the Archer survey was void are very early cases, and their language indicates that the courts did not mean that surveys conducted by a surveyor outside of his own authorized district were completely, unalterably and incurably void, but were void unless cured or the defect remedied. As for example, in Peacock v. Hammond, 6 Tex. 544, the court indicates that the survey was void because it did not receive the approval of the surveyor, suggesting or implying that it would or could have been validated by approval of the surveyor. Also, in Linn v. Scott 3 Tex. 57, the court suggested or stated that legislation could have made such survey 'good and valid' except for the fact that the suit was already filed when the legislation was passed. These cases, taken in conjunction with the wording of the Validating Act, indicate that a survey of the nature with which we are here concerned, could be validated, and was therefore not incurably void. There are other cases holding that the word 'void' is often used interchangeably with 'voidable' or 'illegal', as appears in 44 Words and Phrases; and so it seems to us that the cases have clearly enunciated that a survey of this nature is not a dead nullity, incurable in any way, but rather constituted a defective survey which was later legalized by patent and a validating Act. Such language is found in the following cases: Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 771; Overstreet v. Houston County, Tex.Civ.App., 365 S.W.2d 409. Then, of course, there is a long line of cases holding that when a thing is actually void, it can never be cured, is good nowhere and bad everywhere. We believe that the situation here created by the Archer survey was one that was defective but subject to being cured, as set forth above.
We are also faced with the situation here that the State of Texas issued its patent, thereby stamping the approval of the State on the survey. There are several cases that state that a patent constitutes ratification and adoption of a survey. Griffith v. Rife, 72 Tex. 185, 12 S.W. 168; State v. Humble Oil & Refining Co., Tex.Civ.App., 187 S.W.2d 93 (n. w. h.); La. Ry. & Nav. Co. v. State, Tex.Civ.App., 298 S.W. 462; aff'd. Tex.Com.App., 7 S.W.2d 71. The above cases are also authority for the effect of the Validating Act of 1889. This Act expressly provides, inter alia, as follows:
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