Teat v. McGaughey

• Decision Date: 04 May 1893
• Citation: 22 S.W. 302
• Parties: TEAT et al. v. McGAUGHEY, Commissioner, et al.
• Court: Texas Supreme Court

22 S.W. 302

TEAT et al. v. McGAUGHEY, Commissioner, et al.

Supreme Court of Texas.

May 4, 1893.

Application by Nancy Teat and others for a writ of mandamus to compel W. L. McGaughey, commissioner of the general land office, and Diedrich Rode, to issue to her a patent of land. Application denied.

Jas. B. Goff, for plaintiffs. C. A. Culberson, Atty. Gen., and Frank Andrews, Asst. Atty. Gen., for defendants.

GAINES, J.

This is an application to this court for a writ of mandamus to the commissioner of the general land office. It is alleged in the petition, in substance, that the plaintiffs are the heirs of Leroy Wilkinson; that he died in 1836, and that on the 2d day of March, 1838, a certificate was issued at the instance of the administrator of his estate to his heirs for one third of a league of land; that on the 10th day of November, 1845, they caused it to be located upon a certain tract in the petition described, and that in pursuance of the location they caused the land to be surveyed, and the field notes of the surveyor and the certificate to be returned to the general land office. It is is further alleged that the commissioner of the land office at that time ordered the patent to issue to the heirs of Leroy Wilkinson, but that no such patent ever issued; and that thereafter, on the 24th of August, 1846, by mistake a patent was issued to the heirs of Lucy Wilkinson. It is further averred that no such person ever existed as Lucy Wilkinson, and that there is no person claiming the land by virtue of that patent, but that it is in possession of one Diedrich Rode, who is in possession of the land, claiming adversely to plaintiffs. It is further averred that plaintiffs had demanded of defendant McGaughey, as commissioner of the general land office, that he cancel the patent previously issued, and that he issue a patent to the heirs of Leroy Wilkinson, and that he had refused. The plaintiffs pray for a writ commanding the commissioner to cancel the old and to issue a new patent in accordance with the certificate. Rode was made a party, and, though served with process, has not appeared. The defendant McGaughey filed exceptions to the jurisdiction of the court, general and special demurrers, and an answer to the merits. The cause has been submitted upon the exceptions and demurrers.

A writ of mandamus will lie against an officer to compel the performance of a plain and imperative duty when the plaintiff has no other adequate means of redress. The act to be compelled must be one which he has no discretion to refuse to perform, and which does not call for the exercise of his judgment upon matters of fact. When there are conflicting claims to be affected by the act sought to be enforced, which may call for the determination of mixed questions of law and fact, the officer cannot be drawn into the litigation and forced to act until the right has been determined, and his duty made clear. In Commissioner v. Smith, 5 Tex. 471, Mr. Justice Wheeler says: "It is only in those cases where the right or title is not litigated that the party may proceed by mandamus against the commissioner at the seat of government. But where there are questions of fact to be litigated between the holders of adverse claims before the right of the party to his patent can be determined, he may and ought to sue upon his survey and certificate in the county in which the land is situated, and there settle the question of right." The principle here recognized is the rule of the common law, as is well illustrated by the case of Rex v. Bankes, 3 Burrows, 1452. That was a proceeding for a mandamus to compel certain officers to take action to bring about an election of a mayor, and it appeared that there was a de facto mayor, who was performing the functions of office. Upon that fact being shown to the court, the acting mayor was required to be made a party. We now quote from the report of the case: "Lord Mansfield proposed that the counsel for the defendants should file their affidavits, that the prosecutor's counsel might be able to judge whether upon the affidavits of both sides, compared...