Case No. 1632 | Tex. | Nov 25, 1884
In passing upon the petition as tested by the general demurrer, the court should consider everything as prop
The demurrer here admitted that the application to purchase the land in the name of Vanmeter was fictitious, made by appellee for his own benefit, for the purpose of withholding the land from the market until such time as he might determine to purchase the same for himself.
But the petition also alleges that Brown withdrew the application made in the name of Vanmeter, March 30, 1882, and on the same day applied for the land in his own name. From a consideration of the other allegations in the petition, it will be presumed that all the subsequent steps taken by Brown up to the issuance of patent were regular and in accordance with law, as none of them are the subject of complaint.
Flow, admitting that the application made in the name of Van-meter was fictitious, and made with the view and for the purpose claimed, then the application would not have been such an appropriation of the land, or such preference secured, as would have prevented appellants from securing the land by a proper application, followed by a compliance with the law. However, before any intervening rights had arisen, appellee applied for the land in his own name, and, it seems, followed that application with a compliance with the law, and it seems paid the purchase money and secured the patent. The application under which appellants claim was made April 10, 1882, several days after appellee’s application was made, accepted and recorded by the surveyor. In securing title to these school lands, the payment of the purchase money is the real consideration for which the patent is issued. The application and other preliminary steps may be very irregular, but that would not render the patent void. And the fact that appellee had practiced a deception upon the surveyor and the public, by securing the land from sale by a fictitious application, would not vitiate the application made in his own name March 30,1882. Such fictitious application did not secure in law any preference in the purchase of the land, and might have been entirely ignored by appellants or others desiring to secure the land by purchase. At the time appellee made the application in his own name, neither appellants nor those through whom they claim had any equity whatever in the land. They had taken none of the necessary steps toward securing the same, and, in fact, had no greater right to it than they had to any other unsold school land in the country.
To render such an attack upon the patent successful, the burden was upon the appellants not only to establish that either their vendors or themselves had an equity in the land at the time of the issuance of the patent, but also to show that such equity was superior to that which eventuated in the patent. This appellants failed to show by the allegations in their petition. And the irregularities relied upon respecting the manner in which the application was first made, then withdrawn and another substituted, are not such as to invalidate appellee’s last application or the patent which was issued upon it.
Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.
Affirmed.