24 Tex. 184 | Tex. | 1859
At the period of the appellee’s settlement, in 1853, and of his survey in June, 1854, the land in question was not subject to be acquired by pre-emption. It was within the limits of Peters’ colony, and had been reserved from being thus appropriated, by the Act of the 10th of February, 1852. The reservation did not expire, until the 10th of August, 1854. (Laws 4th Leg., ch. 72, § 3.) The appellee’s settlement and survey, were therefore unauthorized by law, and conferred on him no right whatever to the land. But after the reservation had expired, on the 11th of August, 1854, his settlement and improvement gave him a right of pre-emption, under the law then in force, to 160 acres, to include his settlement or improvement. (O. & W. Dig. 744, Art. 350.) According to the case of Jennings v. De Cordova, 20 Texas Rep. 508, he had an equity to the quantity of land he was thus entitled to appropriate, which the Act of the 15th of August, 1856, (O. & W. Dig. 745, Art. 358,) operated upon and revived, validating his survey, and giving it a priority over an intervening location, not perfected into a patent.
The result is, that by virtue of the Act of the 15th of August, 1856, and the appellee’s patent, he has a title superior to that of the appellants’, to 160 acres of the land in question, including his improvements; but to the residue, the right is with the appellants. The judgment must therefore be reversed, and the cause be remanded, in order that the court may cause the portion of the land, to which the appellee is entitled, to be surveyed and set apart to him; and that the appellants may have judgment for the residue.
Reversed and remanded.