21 Tex. 539 | Tex. | 1858
That the contract of the 29th of January, 1844, if valid, reserved the land in question from location and appropriation, by the plaintiff’s certificate, cannot be doubted. But it is insisted that the contract was invalid, for the want
It is unnecessary to refer to more recent Acts containing similar recognitions of the validity of the contract. It will suffice to say that these legislative recognitions of its validity must be deemed to have put that question at rest. (Houston v. Robertson, 2 Tex. R. 1, 23 ; Hancock v. McKinney, 7 Id. 384, 441-2.)
It is contended that, as the Act of the 3rd of February, 1845, (Id. Art. 2145,) required the contractors to have the lines of their colony surveyed and marked ; and the Act of the 25th of June thereafter, (Hart. Dig. Art. 2151,) authorized patents to issue to claimants to lands, surveyed within the limits of the colony, where the surveys had been filed in the office of the Surveyor of the county, or the Surveyor by whose direction the survey was made, previous to notice to the Surveyor, of the-limits of the colony, the plaintiff’s survey is protected. But it is to be observed that the last mentioned Act refers to, and, by its terms, appears to have been intended to embrace only locations and surveys which had been previously made ; the -words are, “ Provided the locations or surveys, in pursuance of which said patents are or may be demanded, were filed in the office of the County Surveyor,” <fcc. It does not seem to contemplate future locations and surveys; but to have been intended to protect those which had theretofore been made, in ignorance of the fact, on the part of the Surveyor, that they were within the limits of the colony. But the plaintiff’s location and survey were made several months after the passage of the Act; and would seem, therefore, not to have been embraced by, or within the contemplation of its provisions; or entitled to its protection. If, however, the plaintiff’s survey was within the provision of the Act, it is not protected by it, because, it seems, the requisite notice to the Surveyor had been given. ' The Deputy who
It is said that the colony contractors forfeited their rights by failure to perform the requirements of the law and their contract, but of this the record affords no evidence. If the plaintiff would or could have availed himself of any benefit in this suit by reason of such forfeiture, it certainly devolved on him to aver and prove it. But, however, the fact may have been, it cannot affect the rights of the defendant as a colonist.
We are of opinion that there is no error in the judgment and it is affirmed.
Judgment affirmed.