Witherspoon v. Olcott

• Decision Date: 16 December 1902
• Docket Number: 1,152.
• Citation: 119 F. 175
• Parties: WITHERSPOON v. OLCOTT et al.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F. 175

WITHERSPOON v. OLCOTT et al.

No. 1,152.

United States Court of Appeals, Fifth Circuit.

December 16, 1902

W. O Davis, for plaintiff in error.

A. M Carter and T. D. Cobbs, for defendants in error.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

PARDEE Circuit Judge.

This is an ordinary action of trespass to try title, resulting in a judgment in favor of Frederick P. Olcott, defendant in error for five sections of land in block A of formerly Hardeman now Foard, county, patented to the Houston & Texas Central Railway Company in November, 1881, and four sections in block 44 of said county, patented to said railway company in September and October, 1877. Olcott claimed under a quitclaim deed from the receiver of said railway company,-- sufficient, however, to vest in him whatever right the railway company had to said lands. The patents to the railway company were predicated upon certificates issued to said railway company on the 1st day of July, 1872, and upon surveys made by the surveyor for the Jack land district on the 25th day of September, 1872, and on the 18th day of December, 1873, which surveys were claimed to be void because Hardeman county was not in his district nor under his jurisdiction, as decided by the supreme court in Cox v. Railway Co., 68 Tex. 226, 4 S.W. 455, and in other subsequent decisions. Afterwards, in November, 1874, while Hardeman county was in fact in his district and under his jurisdiction, the surveyor for the Jack land district made surveys for other persons, more or less conflicting with the nine surveys previously made for the said railway company. While these surveys may be valid and superior to the surveys made for the said railway company, all of them are unpatented, except the B. H. Epperson survey, patented on the 8th day of May, 1876, the McGuire Chessau survey, patented on the 22d day of October, 1875, the Houston Tap & Brazoria Railway Company survey, patented on December 4, 1875, the Memphis, El Paso & Pacific Railway Company survey, patented on December 20, 1875, and the Wm. T. Dillingham survey, patented on March 16, 1876, which patents are older than the patents to the Houston & Texas Central Railway Company, but the conflict was not sufficiently shown for either court or jury to act upon same.

The court instructed a verdict for Olcott upon the theory that the patents to the railway company were not void, but certainly vested in the company the legal title to the land, as against outstanding equities in the hands of strangers, and against even superior outstanding legal title not clearly shown to conflict. The correctness of the court's instruction to find a verdict for the plaintiff below has been brought here for review, and, after full consideration, we are of opinion that there was no error in the instruction given.

Without undertaking to decide upon the much-argued question as to whether in 1872 E. Boon, a surveyor of Jack county, and of the Jack county land district, and perhaps claiming to be de facto surveyor of Hardeman county, had a right to make the surveys in Hardeman county (now Foard county) upon which the patents to the Houston & Texas Central Railway Company were based, we think it clear that the patents issued upon such surveys were not void. There is no question that the surveys were made, that they were filed in the general land office in accordance with the law, and that upon them the patents were apparently regularly issued. It seems to be well settled in Texas that patents issued under such circumstances cannot be treated as void. See Styles v. Gray, 10 Tex. 503, 508; Deen v. Wills, 21 Tex. 642; Todd v. Fisher, 26 Tex. 239; O'Neal v. Manning, 48 Tex. 403; Johnson v. Eldridge, 49 Tex. 507; Gullett v. O'Connor, 54 Tex. 408; Gambrell v. Steele, 55 Tex. 582; League v. Rogan, 59 Tex. 430; Miller v. Moss, 65 Tex. 182; Decourt v. Sproul, 66 Tex. 371, 1 S.W. 337.

The opinion of Judge Moore in Todd v. Fisher, supra, is so directly applicable to the facts in the present case that we quote the same as conclusive, as follows:

'This suit was brought by the appellees for the recovery of six hundred and forty acres of land, for which a patent was issued to them by virtue of an act of the legislature passed February 1, 1854, to enable them to perfect titles to the lands for which certificates had been issued to them under the act of January 21, 1850. The appellant insists that both these laws are unconstitutional, because, as he insists, they are in conflict with the provisions of the ordinance attached to the constitution, and that the patent was consequently issued without legal authority, and is therefore absolutely null and void.

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