J. F. KEITH ET AL. V. GUSTAN GUEDRY
No. 1976
Texas Supreme Court
Decided November 10, 1909, February 16, 1910.
103 Tex. 160
This case not like those cited by the Court of Civil Appeals. Downard v. National Loan Co., 22 Texas Civ. App., 570; Bayless v. Assn., 39 Texas Civ. App., 353. There was no question in those cases as to the effect of an abandonment of the work by a contractor before completion. The houses were built in accordance with the contracts and the questions were entirely different from that here involved. Nor do those cases hold, or involve a holding, that less than a contract for the improvement and also the finishing of the improvement contracted for are essential to the lien.
The judgment will be reversed and reformed so as to deny plaintiff’s claim of lien on the homestead. In other respects it will be affirmed.
Affirmed in part; Reversed and rendered in part.
1.—Location—Return of Field Notes—Forfeiture.
One who claims forfeiture of another’s location and survey upon the ground that it was made upon a conditional certificate and that the unconditional certificate was not returned and filed in the Land Office in accordance with the Act of August 30, 1856, has the burden of proving the facts necessary to establish such forfeiture; and where the evidence shows that the survey was made upon a certificate not now found on file in the Land Office, but formerly on file there, and fails to establish whether same was the conditional or the unconditional certificate, the facts necessary to establish such forfeiture are not shown. (P. 166).
The
3.—Same.
The right secured to the owner of a land certificate by his location and survey was an imperfect title to the land, to be perfected in the manner and time prescribed or which should thereafter be prescribed by law; and it is competent for the Legislature to prescribe that the locator should present to the Land Office his certificate, if it was not found on file, and to declare a forfeiture of the survey on his failure to comply with such terms. (P. 166).
4.—Same—Burden of Proof—Patent.
Where patent to land has been issued by the State, the burden is upon one claiming title under an unpatented survey and location of a certificate upon the same land to show that his certificate, if not already on file, was returned to and deposited in the Land Office in accordance with and within the time required by the
Error to the Court of Civil Appeals for the Fourth District in an appeal from Hardin County.
J. F. Keith and another sued Guedry in trespass to try title and defendant had judgment. Plaintiffs appealed and on affirmance obtained writ of error.
Geo. D. Anderson and Andrews, Ball & Streetman, for plaintiff in error.—Where plaintiffs in trespass to try title introduce in evidence a patent from the State of Texas, valid upon its face, and proof showing that they connect with and hold under such patent, they make out a prima facie case entitling them to recover, and the burden is upon the defendant, claiming under a prior but unpatented survey, to clearly establish a superior equitable right in order to defeat such rеcovery. Johnson v. Eldridge, 49 Texas, 507, 520, 521; Atkinson v. Ward, 61 Texas, 383, 385; McWhirter v. Allen, 1 Texas Civ. App., 649; Sheppard v. Avery, 28 Texas Civ. App., 480; Crow v. Reed, 25 Texas Supp., 392.
Where a conditional headright certificate was issued on July 4, 1839, for 640 acres of land and survey was made by virtue thereof on April 30, 1856, and the field notes were filed in the General Land Office on July 14, 1856, but the unconditional certificate which had been issued on November 3, 1845, was not returned to, nor filed in the General Land Office on or before August 1, 1857, the location and survey became null and void, and the land was public domain and subject to be located upon as other vаcant land.
Under section 1 of the
Where a location and survey became null and void for failure to return to or file in the General Land Office the certificate by virtue of which such location and survey was made, the land thereupon became vacant and unappropriated public domain, and was not land titled nor equitably owned under color of title from the sovereignty of the State, but was subject to be located, surveyed and patented by virtue of any other genuine land certificate. Sec. 2, art. 14,
Greers & Nall and J. W. Lockett, for defendant in error. Wilds obtained his unconditional headright certificate No. 46, on November 3, 1845, and had this particular 640 acres surveyed, by virtue of his headright certificate, on April 30, 1856, and the field notes, after being recorded in the surveyor’s office, were filed in the General Land Office on July 14, 1856, and he complied with all of the requirements of law, whereby this 640 acres became segregated from the public domain and vested absolutely in Wilds, whether his headright certificate was ever filed in the General Land Office or not, and whether any patent was ever issued to him or not, and the appellee Guedry, is connected with Wilds by a regular chain of title.
The fact that a certificate was not on file in the General Land Office on November 29, 1871, and was not filed there within eight months thereafter, is not, of itself, sufficient to forfeit, or render null and void, a survey made by virtue of a headright certificate issued in 1839 or 1845, and surveyed in April, 1856, and field notes filed in General Land Office July 14, 1856, because such certificate was not
The John M. Bowyer survey and patent, under which appellants claim, are absolutely null and void, because the survey was made on appropriated land, and land titled and equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which was on the county records and in the General Land Office, and the land was actually occupied by the owner, or some person holding for him, and this land was therefore appropriated and segregated from the public domain, and not subject to location, and therefore the appellants had no such title as would sustain this action.
MR. JUSTICE BROWN delivered the opinion of the court.
J. F. Keith and the Keith Lumber Company brought this suit against Gustan Guedry to recover title and possession of so much of the John M. Bowyer 1238 1/2 acres survey as is in conflict with the John P. Wilds 640 acres survey, situated in Hardin County. Keith and the Keith Lumber Company claimed under John H. Kirby by warranty deed, and made him a party defendant in the suit. The petition contained the usual allegations in actions of trespass to try title, and also set up a claim on the part of the plaintiffs to the land under the statute of three years limitation.
The defendant disclaimed title to all of the land except that covered by the Wilds survey, which he described in his answer, and answered by a plea of not guilty and of three, five and ten years statutes of limitation. The trial court instructed the jury as follows:
“You are instructed by the court that unless the plaintiff can recover under the statute of three years limitation (upon which you will hereinafter be instructed), then your verdict should be for the defendant Gustan Guedry upon the issue of title to the land.”
The jury returned a verdict for the defendant.
We extract from the opinion of the Court of Civil Appeals the following statement of the facts of the case:
“The appellants claim under the John M. Bowyer survey of 1238 1/2 acres, which was surveyed March 30, 1881, for J. W. Lawrence, by virtue of duplicate certificate No. 35/137 issued January 24, 1879, in lieu of certificate No. 1062, issued by the Board of Land Commissioners of Harris County on August 9, 1851, to John M. Bowyer. The field notes of the survey were filed in the General Land Office April 12, 1881, and on October 25 of that year were endorsed as being in conflict with the John P. Wilds survey, and, on November 9, 1883, were endorsed corrected. On July 2, 1886, patent was issued for
“The appellees claim the John P. Wilds unpatentеd survey of 640 acres which, except a small portion in conflict with the Cochran survey, is covered by the Bowyer survey, claimed by appellants. This survey was made on April 30, 1856, by virtue of the land certificate hereinafter mentioned and the field notes thereof filed in the General Land Office, July 14, 1856.
“On July 4, 1839, the Board of Land Commissioners of Jefferson County, under the
“The evidence tends to show that a certificate was filed with the field notes, but whether the conditional or unconditional it does not disclose with any degree of certainty. It has not been in the Land Office since this suit was filed, and no witness who testified in the case had any recollection of ever having seen it there on file. The questions as to whethеr it was filed and if it was, which certificate, were not submitted to the jury, because deemed by the trial court of no importance, under its view of the case.”
It was not disputed that the plaintiffs had the title which was granted by the State by virtue of the location of the John M. Bowyer survey and the defendant Gustan Guedry had the title which was
The
On the 29th day of November, 1871, the Legislature of this State enacted that, “in all locations and surveys of land heretofore made by virtue of any such certificate, as is specified in the first section of this Act, and in which the field notes have been returned to the General Land Office and the certificate by virtue of which the survey was made is not on file in the General Land Office, nor has been withdrawn for location of unlocated balance as is provided in the first section of this Act, such certificate shall be returned to, and filed in the General Land Office within eight months from the passage of this Act, or the location and survey made by virtue thereof, shall be null and void.” The J. P. Wilds certificate being a headright was embraced in the terms of the first section of that Act, therefore, included in the part of the second section copied above. At the date of that enactment the J. P. Wilds certificate was not in the General Land Office, neither was it returned to that office prior to the 29th day of July, 1872. It follows that by the unmistakable language of the law the survey made under that certificate became void, and, on March 30, 1881, the land was subject to location and appropriation by the certificate of John M. Bowyer, then located thereon, unless it shall appear that the unconditional certificate was at some time prior to July 29, 1872, on file in the General Land Office.
The Honorаble Court of Civil Appeals laid down these propositions: (1) That the issuance of the certificate to J. P. Wilds constituted a contract between him and the State under which he was entitled to appropriate 640 acres of the public domain. (2) That the location and survey of the land and return of the field notes to the General Land Office under that certificate constituted a vested right in the owner of it to that survey of land. Upon these propositions the Court оf Civil Appeals based its conclusion that the
It is true that a survey under the Wilds certificate and the return of the field notes and certificate would have constituted a vested right in that land to the extent that it secured to the owner of the certificate a right to perfect his imperfect title to the land in the manner and time prescribed by law, or that should thereafter be prescribed, but it did not invest the owner with the title to the land; that remained in the State until the patent should be issued. In order to complete his title Wilds, or his assignee, was required to present the certificate to the Commissioner of the General Land Office and procure a patent for the land. The location and survey could not have been perfected into full title without presenting the certificate to the Commissioner of the General Land Office and depositing it with him. It would be implied that the certificate upon which the patent was issued should be delivered up to the State. The Legislature had the authority to prescribe a time within which those Acts should be performed and to declare a forfeiture of the survey on failure of the owner to comply with the terms expressed. Snider v. Methvin, 60 Texas, 487, 499. In that case this court said:
“That the Legislature may prescribe a time within which a person must perform acts nеcessary to the vestiture of title to land is certainly true; and that in case of failure to comply with such a requirement, imperfect rights, such rights as could be made perfect only by compliance, may be annulled by legislation declaring the utmost limit of time which shall be given to perform such acts.
“Instances of the exercise of such power by the Legislature is seen in those Acts requiring surveys already made to be returned within a given time or the surveys to become null and void, and in Acts prescribing the period within which land certificates of the various classes should be presented to the several boards and tribunals created to determine the validity and genuineness of such claims.”
To the instances mentioned by the court we would add the following: In 1876 the Legislature enacted a law providing that in case the records of deeds of any county had been, or should be, destroyed by fire, every owner of land whose deed had been recorded in said records should have four years time within which to re-record the instrument, and, in case of failure to do so, the destroyed record
On the 5th day of February, 1840, the Congress of the Republic of Texas passed an Act whereby it required that all of a certain class of certificates which had been previously issued should be presented to a Board of Commissiоners created by that Act within a given time and that the person claiming to own such certificate should be required to establish its validity and in case it was not presented or not proved to be genuine the right under such certificate should cease. The Supreme Court of the State held that law to be constitutional although it did in fact destroy the right claimed to have been acquired by reason of the issuance of the certificate. (Hosner v. De Young, 1 Texas, 764.)
In the year 1856 the Legislature passеd a law which required that each owner of a land certificate of certain classes theretofore issued should present his certificate to a Commissioner to be appointed and by proof establish its validity, and failing to do so the certificate should cease to be of any force. That law was sustained in an opinion delivered by Chief Justice Moore in the case of Durrett v. Crosby, 28 Texas, 687, 688. Other similar laws which have been sustained might be cited but we deem these sufficient. Wе are of opinion that the Court of Civil Appeals erred in holding the
In remanding the cause we think it proper to say that, the State having issued a patent upon the location made under the Bowyer certificate, it will devolve upon the defendant below to prove that the unconditional certificate issued to J. P. Wilds was located and the field notes and certificate returned to and deposited in the General Land Office at some time prior to the 29th day of July, 1872. Such proof in our opinion would show a vested right which would be superior to the right upon which the patent was issued, unless the plaintiffs shall prove that, after the Wilds certificate had been deposited in the Land Office, it was withdrawn therefrom by the owner of the certificate, or by some person authorized by him to do so. (Snider v. Methvin, cited above.) If such proof should be made by the рlaintiffs, then the survey made by the Wilds certificate must be held to have been forfeited under the
Reversed and remanded.
ON MOTION FOR REHEARING.
In stating its findings of fact the Court of Civil Appeals said, “the evidence tends to show that a certificate was filed with the field notes, but it had not been in the Land Office since the suit was filed and no witness, who testified, had seen it.” “It may be assumed, as we will for the purpose of this appeal, that neither certificate was ever filed in the General Land Office with the field notes of the survey.”
It will be seen that the case was presented to this court upon the
T. J. BROWN
JUSTICE SUPREME COURT OF TEXAS