51 Tex. 331 | Tex. | 1879
This case involves, first, the right of the plaintiff to maintain the suit upon his cause of action; second, the true location of the east boundary line of the Antonio Bodriguez survey.
The first question arises upon the first alleged error assigned, as follows:
“The court erred in overruling defendant’s objections to plaintiff’s affidavit, preemption file, and the field-notes of his survey of preemption, offered in evidence in support of his action against defendant, on the grounds and as set forth in defendant’s bill of exceptions.”
These grounds of objection were, that plaintiff’s claim did not constitute either such legal or equitable title as would maintain the suit, he not being in condition to demand a patent to the land claimed by him; and that a judgment against defendant would not protect him from further litigation, as it. could not be pleaded in bar against the government or a subsequent locator.
We are of opinion that these objections were not well taken, but that the claim of plaintiff constituted an equitable though defeasible title, which, unless he failed to comply with the terms of the law, would ripen into a complete legal title, and would be sufficient under our law to maintain the action and entitle him to a recovery, unless the defendant showed that he had a superior right to the possession of the land. (Paschal’s Dig., art. 5303; Spier v. Laman, 27 Tex., 216.)
This, under the other issues of law and fact, depended upon the question whether the land claimed by plaintiff was within the boundaries of the Bodriguez patent, under which defendant held. This patent called to commence at the northwest corner of a survey made for John Schweitzer; thence south on his line; thence west, north, &e., the last two calls being, “ thence south one hundred varas to stake on north boundary line of said. Schweitzer survey; thence west one hundred varas with the same to the beginning.” In fact, this last call of one hundred varas would stop several hundred varas east
Aeeirmed.