Wood v. Collins

• Decision Date: 13 February 1894
• Docket Number: 186.
• Parties: WOOD et al. v. COLLINS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

60 F. 139

WOOD et al. v. COLLINS et al.

No. 186.

United States Court of Appeals, Fifth Circuit.

February 13, 1894

This suit was brought by appellants by bill in equity to restrain prosecution of a suit at law instituted by appellees on the law side of the docket against appellants to recover 320 acres of land in McLennan county, Tex., patented to the heirs of W. P. Johnson, December 12, 1872, upon a location and survey made in 1871. Appellants allege in their bill that they have the equitable title to the same land, derived by regular chain of transfer from J. D. Bivens, who settled the same as a pre-emptor in January, 1853, under the pre-emption laws of Texas, at the time when it was vacant, and subject to pre-emption; that Bivens, and those succeeding him by transfer from him, occupied, improved, and cultivated the land the time required by law to entitle him to a patent that they had the land surveyed, field notes recorded and returned to and filed in the land office at Austin, made proof of occupancy, etc., February 14, 1857, which was filed in the land office January 25, 1875, and did every act required by law to entitle him to patent, but that patent did not issue because of the said Johnson patent. They prayed for cancellation of said Johnson patent, and that complainants' title be decreed to be a good, equitable title to said land, and that it be perfected into a legal title, and for a writ of injunction in the form prescribed by law enjoining and restraining the defendants herein and plaintiffs in said suit at law, and each of them, from further prosecuting said suit at law against complainants and from offering, using, or introducing in evidence in said suit at law the said patent, until the rights of complainants in the premises can be fully inquired into. Appellees herein answered said bill, denying all the allegations therein claimed title under said Johnson patent; prayed that the injunction be dissolved; and, if the court retains the cause respondents pray for a judgment and decree in their favor, and for special and general relief.

On the trial of the case judgment was rendered in favor of respondents, the injunction before granted dissolved, and writ of possession awarded respondents for two-thirds of the land. The court reduced its findings of law and fact to writing, and they appear in the record, from which it will be seen that the findings of fact are as alleged in complainants' bill, except as to the time Bivens settled on the land in controversy; the court finding that the settlement was made in the year 1853, prior to December 21st, and after February 7th. The court's conclusions of law are all in line with appellants' claim in their bill, except that the court, in effect, holds that the Bivens pre-emption right was lost by the failure to file in the land office at Austin the proof of occupancy prior to the location of the Johnson certificate; and upon these conclusions is based the judgment in favor of respondents.

From the judgment complainants appealed, and, among others, assign the following errors: '(2) The court erred in rendering judgment in favor of defendants for the land in controversy, and awarding a writ of possession for the same, because complainants are thereby cut off from their legal defenses against the action of respondents on the law docket of this court, or limitations or claims for improvements made in good faith, which they intended to and could interpose in said suit at law; and because respondents did not prove title in themselves to the land in controversy. (3) The court erred in finding in favor of respondents, because the court did not find as a fact that the land in controversy was in the Mississippi and Pacific Railroad reserve, and respondents' claim of paramount title over complainants' equitable title was put upon the ground that said land was in said reservation. (4) The court erred in holding and deciding that the holders under the Bivens pre-emption claim lost their right because the proof of occupancy was not filed in the land office until after the W. P. Johnson certificate was located, and on that account deciding the whole case in favor of respondents. (5) The court erred in holding and deciding that the law does now, or ever did, fix any time within which a pre-emptor must file his proof of occupancy in the land office. (6) The court erred in rendering judgment other than that the injunction be dissolved and the complainants' bill be dismissed, and for costs, because all other questions than those presented by complainants' bill ought to be decided and determined in the suit at law now pending between the parties, wherein complainants herein ought to be permitted to make every legal defense available to them, and which the decree in this cause prevents them from making.'

Harris & Saunders and E. H. Graham, for appellants.

Robertson & Davis and W. S. Kincheloe, for appellees.

Before PARDEE and McCORMICK, Circuit Judges.

PARDEE Circuit Judge (after stating the facts).

The appellants do not complain of the correctness of the facts as found by the trial court, except in two respects: First, the finding that J. D. Bivens, under whom appellants claim title settled upon the land in controversy with the intention of claiming it as a pre-emption some time in the year 1853, some time after February 7th and before December 21st of that year; and, second, the finding that it was admitted on the trial that the defendants below, appellees here, are the owners of the W. P. Johnson title to the land in controversy. Our examination of the evidence in the case leads us to the same conclusion as that reached by the trial judge, i. e. that J. D. Bivens did not settle upon the land in controversy with the intention of claiming it as a pre-emption until the fall of 1853. The parol evidence offered as to the date of Bivens' settlement and of the survey made by Bigham for him is not sufficient to overcome the documentary evidence in the case. Bigham's evidence does not go far enough to warrant us in concluding that the dates of the survey and field notes coming from the records of the Milam land district were changed from January, 1853, to January, 1854, particularly as the said Bigham does not explain the dates of the survey found in the general land office, nor the date of the affidavit of Bivens, purporting to come from the land office of Milam district, wherein said Bivens swears that he settled on the land before the 21st day of December, 1853. The record does not show that the appellants expressly admitted on the trial in the court below that the defendants in the court below (appellees here) are the owners of the W. P. Johnson title to the land in controversy, and ...