100 S.W. 1023 | Tex. App. | 1907
From a judgment in favor of the plaintiff in an action of trespass to try title, the defendant has appealed. The case is presented in this court upon three assignments of error, all of which are very general in their nature. Appellee objects to their consideration, but inasmuch as they are followed by propositions, statements, citations of authorities and argument, bringing the case substantially within the rule announced by our Supreme Court in Clarendon Land Co. v. McClelland Bros.,
The plaintiff sued to recover two tracts of land, which he alleged and proved he had bought from the State, and which had been patented to him. The defendant's answer included a general denial, plea of not guilty and a disclaimer as to all the land sued for except 140 acres, specifically described in the answer. At the trial after the plaintiff had introduced his two patents, showing that the State had granted him the land sued for, the defendant, over the plaintiff's objection, introduced an award from the Commissioner of the General Land Office of Texas, showing a sale to the defendant of a section of land, including the 140 acres to which the defendant asserted title, and which was part of the land included in the plaintiff's patents. The award referred to was subsequent to the date of the plaintiff's patents. The defendant then offered testimony which he claims tended to show that the plaintiff had perpetrated a fraud upon the State by causing certain changes to be made in the original field notes of the two surveys by virtue of which the land was patented to him, by which changes it is contended the surveys referred to were caused to encroach upon the section of school land which was afterwards awarded to the defendant. Inasmuch as it was conceded in the court below, as it is conceded in this court, that the claim of title asserted by the defendant had its inception subsequent to the issuance of patents to the plaintiff, the trial court held that the defendant could not assail the plaintiff's title upon the ground of alleged fraud. This ruling was correct. It has been repeatedly held by our Supreme Court that in the absence of some prior right or equity no one except the State can attack a patent upon the ground that the title was procured by fraud. (Bowmer v. Hicks,
Counsel for appellant seem to concede this general rule, but claim that it should not apply with reference to school-lands. We fail to perceive, and counsel has failed to present, any satisfactory reason for the alleged distinction. The rule has heretofore been applied to school lands, and, as we think, correctly. (Culbertson v. Blanchard, supra; Carter v. Clifton, 17 Texas Ct. Rep., 177.) *326
In our judgment the case was properly disposed of by the District Court and the judgment of that court is affirmed.
Affirmed.
