Underwood v. Dugan

• Decision Date: 30 March 1891
• Parties: UNDERWOOD et al. v. DUGAN et al
• Court: U.S. Supreme Court

139 U.S. 380

11 S.Ct. 618

35 L.Ed. 197

UNDERWOOD et al. v. DUGAN et al.

March 30, 1891.

W. Hallett Phillips, for appellants.

Sawnie Robertson and W. O. Davis, for appellees.

BREWER, J.

The facts in this case are these: One March 1, 1838, one Fines Y. Roberson, whose name seems to have been spelled in different ways, sometimes as above stated, sometimes as 'Phineas Robertson,' again as 'Phiness Y. Robinson,' still again as 'Phiness Robinson,' received from the proper authorities of the state of Texas the following land certificate, entitling him as therein provided, and on the conditions therein named, to one league and labor of land:

'No. 127. This is to certify that Fines Y. Roberson has appeared before the board of land commissioners for the county of Houston and proved, according to law, that he arrived in this republic, Jan'y _____, eighteen and thirty-five, and that he is a married man and entitled to one league and labor of land upon the conditions of paying at the rate of three dollars and fifty cents for each labor of irrigable land, two dollars and fifty cents for each labor of temporal or arable land, and one dollar and twenty cents for each labor of pasture land which may be contained in the _____ secured to him by this certificate. Given under our hands the 1st day of March, 1838. E. GASSETT, President. JOHN WORTHAM, Ass. Com'rs. Attest: SAM'L G. WELLS, Clerk.'

On the 5th day of March, 1838, he transferred a one-half interest to Warner L. Underwood. The evidences of this transfer were an assignment on the back of the certificate, as follows:

'For value received. I assign and convey unto Warner L. Underood the within certificate, as by deed also of this date. March 5th, 1838.

FINES Y. ROBERSON.

%'oscar engledow/.

'H. B. DANCE.'

—and a deed of the same date, to the same party, which disclosed that only a one-half interest was conveyed, the other one-half being reserved for the benefit of Joshua Robbins, to whom Roberson had already transferred such interest. No land was ever locted by Underwood or Robbins under this certificate. Soon after this Underwood returned to Kentucky, and remained there until his death. Thereafter, and on the 12th of May, 1855, a written assignment of this certificate was made by Roberson to Dennis Trammell. On the back of the certificate was pasted a thin brown paper, apparently for the purpose of protecting the certificate against wear and tear, but at the same time effectually concealing from observation the assignment to Underwood, written thereon. This certificate, thus on its face the property of Roberson, together with the accompanying written assignment to Trammell, were offered for sale to S. W. March, who, ignorant of any pre- vious transactions, purchased the same in good faith, paying one thousand dollars, and receiving an assignment and transfer from Trammell. This was on June 23, 1855. March located this certificate, and on August 8, 1855, received from the state of Texas a patent for the lands located thereunder. On May 15, 1860, by letter from one James Jeffries, Underwood was notified of the location of the land by March, and of the patent to him, together with the fact of the concealment of the transfer from Roberson to himself, by means of the paper pasted on the back of the certificate. No action was taken by Underwood during his life-time. He lived nearly twelve years after the receipt of this information, dying in February, 1872. During the last three or four years of his life, by reason of disease, he was incapacitated for attention to business. March, the purchaser of the certificate, the locator of the lands, and the patentee from the state, died on the 29th of July, 1878. This suit was commenced on June 13, 1881. The plaintiffs claim as heirs of Underwood, or purchasers from the heirs of Underwood and Robbins, and represent all the rights of Underwood and Robbins, except an undivided interest of one-sixteenth, belonging to A. N. Robbins, one of the heirs of Joshua Robbins, who was made a defendant, and who submitted to an order pro confesso. The other defendants claim under the patentee, March. The principal defense is laches, which in the judgment of the circuit court was sufficient, and the bill was ordered dismissed. 24 Fed. Rep. 74. In that conclusion we concur.

From the facts above stated, it appears that the bill was not filed until 43 years had passed since the ancestors of plaintiffs acquired title to the certificate. During all these years no assertion of right was made by either Underwood or Robbins, or those claiming under them. Twenty-five years before the filing of the bill, March purchased the certificate in good faith, paying a large consideration, located it, and obtained a patent for the lands from the state. Heentered into possession and improved the lands. The original purchasers, Underwood and Robbins, are dead; the subsequent purchaser and patentee is also dead; and with their death the main wit- nesses to this transaction have all...