37 S.W. 313 | Tex. | 1896
This is a motion for rehearing of an application for writ of error, which was refused at the last term.
On the 30th day of April, 1838, Charles Baker conveyed to William W. Gant a land warrant by an instrument in writing, in substance as follows:
"Republic of Texas, Harrisburg County.
Know all men by these presents that I, Charles Baker, for and in consideration of the sum of two hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, have this day bargained, sold, alienated and conveyed unto William W. Gant all my right, title, claim and interest that I have in and to a certain military bounty warrant for twelve hundred and eighty acres of land — number of warrant, 2976 — and issued, etc.; bearing date April 21st, 1838 — and I do hereby transfer and invest in the said W.W. Gant, his heirs and assigns, all the rights and privileges that are given me by the said warrant, and also authorize him or his legal representatives to locate said warrant upon any lands subject to location and when located to enter upon and use and occupy the same at will or to sell, alienate or donate the same, and I furthermore bind myself, my heirs and assigns unto the said Gant ever to warrant and defend the right hereby conveyed, against all sales, frauds or incumbrances of what nature soever.
In testimony whereof I hereto affix my hand and seal this, the 30th day of April, 1838 — in the presence of the subscribing witnesses.
Witness — CHARLES BAKER."
J.N. MORELAND, L. MUER, J.N. SIMMONS."
By virtue of said warrant the land in controversy was located June 4, 1839, by whom the record does not show, and was patented to Charles Baker in October, 1846. *95
It is conceded by counsel for the motion that the same should be overruled if the legal title to the land vested in Gant upon the issuance of the patent, and therefore we will only discuss that question.
In Satterwhite v. Rosser,
In Adams Wickes v. House,
Thus it appears that in both of the cases above cited the transfers were made before the certificates were located and that the court held that upon the patents having subsequently issued to the original grantees the legal titles passed by estoppel to the assignees of the certificates by virtue of the warranties contained in the transfers. In each of these instruments there is an expressed intention on the part of the grantor that the grantee was to have not only the certificates, but the land itself when located, thus showing that the parties intended the conveyance to operate upon the lands as soon as severed from the public domain; and this is true of the instrument under consideration from Baker to Gant. For a valuable consideration it confers upon Gant the title to the certificate and the irrevocable right when the lands are located "to enter upon, use and occupy same at will or to sell, alienate or donate the same," and warrants such right against all sales, frauds or incumbrances of whatsoever nature. The entire instrument evidences an intent on the part of Baker to vest in Gant, so far as he was able, perfect title not only to the certificate, but also to the lands to be located. We are of opinion that it is in effect a transfer of the certificate with a warranty that Gant should be the unqualified owner of the land itself when located as far as any right thereto could be acquired under the certificate, and that under the authority of the above cases Baker was estopped from setting up any title in himself under and by virtue of the patent subsequently issued to him. To allow him to do so would contravene the right granted by him to Gant "to enter upon, use and occupy same at will or to sell, alienate or donate same."
Being of opinion that we were correct in our original holding that the legal title vested in Gant upon the issuance of the patent the motion for rehearing will be overruled.
We do not regard the cases of Abernathy v. Stone,
Writ of error refused.