Linn v. Scott

3 Tex. 67 | Tex. | 1848

Opinion of the court delivered by

Mr. Justice Lipscomb.

This was a suit brought by the. appellee to try title, and to-recover three-quarters' of a league and a labor of land in the county of Yictoria. The venue was afterwards changed to the county of Jackson.

The plaintiff in the court below claimed title under an augmentation certificate, for three-quarters of a league and a labor, in consequence of his marriage. His certificate bore date January 19,1838. The land in controversy was located and surveyed by the surveyor for the county of Jackson, 10th February, 1838. The same certificate was again located on the same land and surveyed by the surveyor for the countjr of Victoria,, the county in which the land lay, on the loth September, 1841.

The defendant claimed title by virtue of a headright order of survey, and the field notes of a survey of one league, awarded to him as a colonist, prior to the revolution, and the closing of' the different land offices by order of the consultation. The-certificate of his right was issued to him by the board of land commissioners for the county of Yictoria, on the 19th of February, 1838. The petition prayed for an injunction against the commissioner of the general land office, to enjoin him from isuing a patent to Linn, the defendant, and for a mandamus, etc.

The petitioner stated that he had ordered the field notes of his survey of the said land to be returned to the general land ■office, which was done; but the commissioner, John P. Borden, of the said general land office, returned the same, refusing to receive them, upon the ground that the said land, as above described, was claimed by one John J. Linn, and the field notes of an ancient survey of the said land was then in the office of said commissioner. This is all of the matter set forth in the petition, under the view that we shall take of the case, tha\ can be material to be stated.

There was a verdict and judgment for the plaintiff, from which the defendant appealed. There was a good deal of testimony on both sides, but, from the opinion of the court on a preliminary question, it will not be important to examine it.

The suit was commenced 21st March, 1839, and the petitioner, or plaintiff, at that time, had no right under his certificate except such as the location and survey made for him by the county surveyor of Jackson county; and his petition shows that the land so surveyed is in the county of Yictoria. Now it is very clear that the .survey must be made by the surveyor of the county in which the land lies. The survey of the surveyor of any other county was a nullity, and could confer no right of action on the plaintiff.

But it is contended that the resolution of the 5th February, 1840, p. 249 of the acts of that congress, gives effect and validity to the surveys made by the surveyor of Jackson county within six miles of the west bank of the river Lavaca. The joint resolution is as follows: “ That all surveys made by the surveyor of Jackson county on the west side of the Lavaca, within six miles of the same, shall be as legal and valid as if the same had been done by the surveyor of Yictoria county, provided such surveys do not conflict with the surveys made by the surveyor of Yictoria county.” There are several objections to this resolution being made available in this case. It was passed after the commencement of this suit, and it cannot be presumed, unless it had been so expressed, that it was intended to make evidence for suits then pending, and to give a good cause of action when none before existed. It is apparent that it would conflict with the rights of the defendant, known to- the plaintiff before the commencement of this suit, as will be apparent by reference to a part of the petition cited above; and further, it appears from the statement of the facts that Linn had, before returning his field notes to the general land office, submitted them to the examination of the surveyor of Victoria, and he had certified their correctness and his approval of them to the commissioner of the general land office. This, then, in effect, was making it his survey, and it would be repugnant to. the survey made by the surveyor of Jackson. This was done before the commencement of the suit, because the plaintiff in his petition states as a reason why the commissioner of the general land office returned his field notes, the faet.of Linn’s, for the same land, being in the office at the time.

It is very clear, from the proviso to the joint resolution cited, that it was not intended to affect the adverse rights of other persons. If there was no adverse interest, then the survey- so made was good and valid. Vor is it believed that the subsequent location with and survey made by the surveyor of the county of Victoria, can be invoked to the aid of the plaintiff’s right to sue in this case, because it was done after the commencement of the suit, and showed no legal right in him when he sued the defendant. If this last location and survey gave- the plaintiff a right superior to the defendant’s, it would only be made available to him by dismissing this suit and commencing one founded on such right. The plaintiff had no legal right or title given by the location with and the survey made by the surveyor of Jackson county. If he has any now, it is by the location and survey made by the surveyor of Victoria county, and this is inadmissible in this suit, because it accrued after its commencement. It is not analogous to making legal evidence in support of a previous right; this, perhaps, would be only affecting the remedy. But the location and survey gives the right to the land; the certificate, previous to such location, gave no title. The objections we have noticed are apparent in the recorded petition of the plaintiff, and are believed to be of so grave a character as should have forbidden a judgment in favor of the plaintiff, because they show at the commencement of the suit he had no cause of action. The judgment is reversed and the cause dismissed.

Judge Wheeler gave no opinion in this case.