Wyllie v. Wynne

• Decision Date: 01 January 1861
• Citation: 26 Tex. 42
• Parties: ANDREW WYLLIE v. R. H. WYNNE AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 42

ANDREW WYLLIE

v.R. H. WYNNE AND OTHERS.

Supreme Court of Texas.

1861.

Where land scrip of the republic of Texas, issued in 1836, was filed in 1840 with a county surveyor, with written directions to locate the same on a tract of land designated by reference to a previous survey which had been abandoned: Held, to be a valid location of so much of the tract so designated as the scrip called for, and to operate an appropriation of the same by the owner of the scrip, notwithstanding no survey of such new location was made until 1852. Held further, that the file and the certificate under which it was made were constructive notice to all that the land designated in the file was appropriated.

The case of Williams v. Craig, 10 Tex. 437, overruled so far as it conflicts herewith; and the case of Lewis v. Darst, 10 Tex. 398, explained and distinguished from this case.

It was undoubtedly the right, and perhaps the duty, of a party claiming under such scrip and location to show that his scrip remained in the surveyor's office in support of his file; otherwise it might have been presumed, in 1845, that his file and location were abandoned. It was error, therefore, to exclude such evidence.

Where a file was made by a person who signed his name simply as “agent,” without disclosing the name of his principal, it may, in the absence of evidence, be presumed that in making the file he acted as agent of the owner of the scrip; and the file will inure to the benefit of such owner.

The practice of the country which prevailed previous to the act of February 10, 1852, of holding lands by files only, without surveys, held not to have been in contravention of the law as it then existed.

A patent may be impeached upon other grounds besides fraud. If issued by the government, either advisedly or by inadvertence, for land which had previously been legally appropriated by another person than the patentee, it could confer upon the patentee no right to such land; and it may be successfully impeached by such person without proof of fraud in obtaining it.

In a suit, therefore, wherein the plaintiff showed that, before the issuance of the patent under which the defendants claimed, he had legally appropriated to himself the land in dispute, it was error to instruct that “if the jury believe from the evidence that the defendants claim under a patent, you should find for the defendants, unless you believe that defendants' patent was obtained by fraud.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

This suit was instituted by appellant against appellees on the 12th of March, 1855, for the purpose of trying the title to 2,560 acres of land in Gonzales county.

The plaintiff claimed under four pieces of land scrip for 640 acres each, issued to John Withers by Sam Houston, president of the republic of Texas, on the 12th day of December, 1836. On the 1st day of June, 1840, W. D. Wallock, who signed simply as “agent,” filed this scrip and other scrip and certificates amounting in all to 4,480 acres, with the county surveyor of Gonzales county, directing him, in writing, to locate the whole on “survey No. 68, in class 10, which was originally surveyed for the heirs of Mrs. A. W. Allston,”“so as to cover so much of the league and labor held by survey No. 68, class 10, as the whole 4,480 acres will cover.” The survey thus referred to had been made May 24, 1838, but, as it appears, had been abandoned. On November 17, 1852, the locations of the scrip thus made were surveyed by the district surveyor of Gonzales land district, and on the 25th of August, 1853, the field notes were returned to the general land office. On the 26th of January, 1853, Withers by deed conveyed to Wyllie, the plaintiff, all his interest in the scrip and in the land on which it had been located. The scrip was issued under the act of the congress of the republic of the 10th of December, 1836, and contained the stipulation that “the holder of this scrip shall receive his title without any other expense than the purchase money.”

The title relied upon by the defendants consisted in a patent from the state to George W. Ward and Robert H. Wynne, assignees of James McKenzie, of date July 17, 1848, for one league and labor, which patent emanated from the headright certificate of said McKenzie, located in 1845, upon the land in controversy. There were conveyances from the patentees to the other defendants not deemed necessary to describe.

The other facts appear in the opinion.

Parker and Nichols and Alexander, for appellant.

Waul and Wilson, for appellees.

BELL, J.

We are of opinion that the court below erred in excluding the testimony offered by the plaintiff, and also in the instructions given to the jury. The testimony in the case does not disclose the particular circumstances under which the file was made by W. D. Wallock with the county surveyor of Gonzales county. The land scrip in question was issued to John Withers, and there does not appear to have been any assignment or transfer of the scrip previous to June, 1840, when the file was made. The file is signed by “W. D. Wallock, agent,” and it may be presumed that he acted, in making the file, as the agent of the person to whom the scrip belonged. At all events, as between the parties to the suit, the file must be held to have inured to the benefit of the owner of the scrip, by virtue of which the file was made. It was undoubtedly the right, and, under the circumstances of this case,...