Thomson v. Locke

• Decision Date: 04 June 1886
• Citation: 1 S.W. 112
• Parties: THOMSON v. LOCKE and others.
• Court: Texas Supreme Court

1 S.W. 112

THOMSON v. LOCKE and others.

Supreme Court of Texas.

June 4, 1886.

Appeal from Kinney county.

Action to quiet title, and coupled therewith an application for a mandamus against one of the defendants to compel him to act in his public capacity as a ministerial officer. General demurrer for multifariousness. Judgment for defendants, and plaintiff appeals.

Rector, Moore & Thomson, for appellant, R. M. Thomson. Ogden, Ogden & Johnson and John A. & N. O. Green, for appellees, Wm. Locke and others.

STAYTON, J.

This action was brought in the district court for Kinney county, to which Crockett county was attached for judicial purposes, to compel William Locke, who is the surveyor of the Bexar land-district, of which Crockett county is a part, to survey certain lands therein situated which had been located by the appellant. His petition alleged that the land which he sought to have surveyed was vacant and unappropriated public land, upon which he had made valid locations, under valid claims against the state for land, the locations having been made in the office of Locke, in the county of Bexar; that he had tendered the necessary fees, and requested the making of the surveys, which the surveyor refused. The petition further alleged that the same land which he sought to have surveyed was claimed by the New York & Texas Land Company, Limited, a corporation incorporated under the laws of the state of New York, and having an office and agent in Anderson county, Texas, for the transaction of its business. The petition then alleges that of the lands claimed by plaintiff, "as indicated in the foregoing paragraphs of the petition, under the file and entry, as shown by Exhibit A, the defendant the New York & Texas Land Company, Limited, assert some sort of a pretended claim to a large part thereof, as will more fully appear in Exhibit B, hereto attached, and made a part of this petition, wherein the field-notes of such tract of land so claimed by said defendant adversely to this plaintiff, and the certificates by virtue of which said certificates were made for said defendant or its vendors, including its number, and the quantity of land called for by it, appear. Plaintiff says that said field-notes of all said land so claimed by said defendant, and said defendant's claim to all the land claimed by it thereunder, with the exception indicated in paragraph 4 of this petition, are null and void, and constitute no claim to the lands therein described, as against this defendant; that said field-notes, and the certificates under and by virtue of which they were made, were returned to the general land-office of Texas after they were barred by the statute of limitations, and were null and void against all persons whomsoever."

The exhibits, showing the land claimed by the defendant corporation, give the field-notes of the several tracts, time the surveys were made, and the time when they were returned to the general land-office; and also the dates when the several evidences of right to land under which the locations were made, were issued from the land-office. Many of these locations were made under certified copies of land certificates, and many of them under certificates for unlocated balances; and all of them appear to have issued from the general land-office within five years prior to the time at which, with the surveys made under them, they were returned to the land-office. The exhibits, however, did not show when the original certificates were issued, nor was there anything to show that the certified copies of the original certificates, or the certificates for unlocated balances, were returned, with the surveys under them, to the land-office, within five years after the original certificates were issued. The petition prayed for "judgment canceling the pretended title and pretended certificates under which the defendant the New York & Texas Land Company, Limited, claims said land sued for by plaintiff, and removing all clouds cast upon plaintiff's title by reason of the pretended claim so set up by said defendant." It also prayed for a writ of mandamus to compel the surveyor, Locke, to survey the lands described, record the field-notes, and return the same, with the certificates, to the general land-office.

The defendant Locke, who was alleged to be a resident of Bexar county, filed an exception, which was sustained. That was as follows: "Now comes the defendant W. M. Locke, and says that this court ought not to have and maintain further jurisdiction of this cause, as against this defendant, because it appears from plaintiff's petition that this defendant is a citizen and resident of Bexar county, Texas, wherein he should be sued, if plaintiff has any cause of action against him. Whereof defendant prays judgment of the court." The other defendant filed a general demurer, which was also sustained, and the cause was dismissed.

It is urged that the exception filed and urged by the surveyor was not sufficient to raise the question of venue. The general rule in this state is that every inhabitant thereof must be sued in the county of his domicile; but to this rule there are many exceptions specified by the statute. Rev. St. 1198. If it appears from a petition that an inhabitant of this state is sued in a county other than that of his domicile, then, unless the petition shows that the action is properly so brought by reason of the existence of such facts as create an exception to this general rule, the objection to the venue may be made as it was in this case.

The question, then, arises whether there are facts stated and relief sought in this case which bring it within any of the exceptions to the general rule. The thirteenth subdivision of article 1198, Rev. St., provides that "suits for the recovery of land, or damages thereto; suits to remove incumbrances upon the title to land; suits to quiet title to land; and suits to prevent or stay waste on lands, — must be brought in the county in which the land, or a part thereof, may lie." Under the former decisions of this court it is evident that the present suit is not one to recover land, or damages thereto, within the meaning of the statute. "An action for the recovery of lands has a well-known and definite signification, and means an action of ejectment, trespass to try title, or suit to recover the land itself." Hearst v. Kuykendall, 16 Tex. 329. "The `recovery of land' manifestly has reference to the possession; and `damages thereto,' as manifestly has reference to an injury to the possession, or to the freehold or estate." Miller v. Rusk, 17 Tex. 171.

It is not believed that this is a "suit to remove incumbrances upon the title to land." The word "incumbrance," in a popular sense, might include an illegal claim set up to land, under such state of facts as would apparently give title when in fact no title existed. Thus used, it would be equivalent to the words "cloud upon title." In a legal sense, the word "incumbrance" means an estate, interest, or right in lands, diminishing their value to the general owner; a paramount right in, or weight upon, land which may lessen its value." Abb. Law Dict. It is claimed that one of the leading purposes of this suit is "to quiet the title to land." If this be true, then the suit was properly brought in Kinney county. A comparison of the law now in force with former laws regulating venue, evidences the intention of the legislature to fix the venue of cases affecting the title to land in the county in which the land may be situated, in cases in which this was not done by the former laws. All but the first clause of the statute which we have quoted are additions to the act of December 10, 1863, regulating venue. P. D. 1423. An examination of the several subdivisions of article 1198, Rev. St., shows an intention on the part of the legislature to require such actions as may affect, or as are brought to secure, title, either legal or equitable, to land, to be brought in the county in which the land is situated. The eleventh subdivision of the act of December 10, 1863, only required such actions as might be brought under the statutes regulating actions of trespass to try title to be brought in the county where the land was situated, while the law now in force requires actions to be brought in the county in which the land is situated which cannot be brought and maintained as actions of trespass to try title. The evident intention was to provide the venue in all actions in which the title to land was in controversy, and so, whether the title sought to be enforced or protected was of such dignity as to authorize an action of trespass to try title, or of such inferior grade as not to entitle the holder of it to resort to and have all the statutory rights which pertain to that action, under the law in force prior to the adoption of the Revised Statutes the appellant might have maintained an action of trespass to try title upon his locations, (P. D. 5303,) and the action would have been properly brought in Kinney county. Under the Revised Statutes, art. 4795, no action of trespass to try title can be maintained upon a mere location under a valid land certificate, but location and a survey is the lowest evidence of right on which this statutory action can be...