| Tex. | Jul 1, 1855
The question presented is on the validity of the patent issued after the time required by law for the return of the certificate and field notes of the survey made for Gibbons had been extended. The question cannot be regarded as open in this Court at this time, as, since the case of Hosner v. DeYoung, (1 Tex. R.) it has been the uniform doctrine of the Court, that the State did not surrender the dominion and control of the public domain, until final and complete title had been issued. It was therefore competent for the State to extend the time to the appellee Gibbons, for making a return of his certificate and field notes. And when the time was so extended, it by relation restored to him his right of possession, from the older location and survey, over the location and survey made by the appellant, in the interval between the time when the older location and survey should have been returned into the General Land Office, and the passage of the relief law extending the time. No incipient or incomplete title, acquired during that interval, could present any legal bar to a restoration of the rights of the first locator. If the patent had issued to the appellant before the passage of the relief law, the patent would have given him a valid title, not to be affected or impaired by the Act of the Legislature. This doctrine was well
It has been contended that the authority given by Statute (Hart. Dig. Art. 3230) to sue for land on which the plaintiff had located a valid certificate, is a recognition of the fact that the fee, by such location, had passed from the State. This is not a fair inference. It amounts to nothing more than this,, that the person holding the incipient title shall recover and hold against all who cannot show a better title, but does not conclude the State. It is competent for the State to say what degree of title, less than the fee, shall be sufficient to sustain an action for the protection of the rights of the party, whatever they may be, against those who have not an equal or superior right. This the State may well authorize, without a relinquishment of the fee in the land sued for.
The case of Howard and wife v. Perry, (7 Tex. R. 259,) has been supposed to afford some sanction to these incipient titles being vested rights. The Opinion of the Court in that case-will not sustain any such conclusion. The Opinion discusses an Act of the Congress of the Republic, validating a certain claim, which Act contains the condition following, i. e.: “ Pro- “ vided, however, that this Act shall not be so construed as to “ impair or affect the right of any person or persons claiming “ the land adversely to the said Hibbins or his heirs.” And we held that a location and survey of a valid certificate, before the passage of the Act, was a claim within the condition or proviso in the Act. But we did not rule that the right was a vested one, that could not have been impaired by an Act of the Legislature. That question was not presented by the record,, and any expression of an opinion to that effect was an obiterf and could not be regarded as the opinion of the Court. If the-Act of the Legislature'of the 10th February, 1852, had con
Judgment affirmed.