24 Tex. 164 | Tex. | 1859
The question of the sufficiency of the petition was settled on a former appeal. (19 Texas Rep. 303.) The disposition of the case must now depend on the question of the correctness of the charge of the court. It is certain, that Boone acquired no right of pre-emption by virtue of his settlement and
Thus the matter stood, as respects the title to the land under the supposed pre-emption right, at the time of bringing the suit, and at the time of the former trial in 1855. The pre-emption claim and survey had not the effect to sever the land from the public domain; the defendant had no right or title to the land, and the deed he procured to be made to the plaintiff, was wholly worthless. But the court, in charging the jury, appears to have denied the right of the plaintiff to avail himself of the defendant’s want of title at the time, because, if he had taken and held the possession down to the passage of the Acts of the 26th of January, and the 15th of August, 1856, (O. & W. Dig. 745, Art. 357, § 58,) he would have been entitled to the benefit of that act. In this we think the court was in error. The case must be determined by the rights which the parties had at the time of bringing the suit. It cannot be made to depend upon what rights they might have acquired, had they anticipated the subsequent legislation for the benefit of pre-emption claimants. Nor can it be imputed to the plaintiff as a fault, that he did not settle and remain upon the land, so as to obtain the benefit of future legislation. If he was defrauded in his contract with the defendant, his right of action to rescind the contract, and recover back the purchase-money, can be in no way affected by the subsequent legislation for the benefit of pre-emption claimants, which he could not anticipate, and could be under no obligation to place himself in a condition to take the benefit of, and from which he derived no benefit.
Neither was the plaintiff’s right of action affected by his having sought to secure the land by a certificate, and afterwards,
We are of opinion, that there is error in the charge of the court, for which the judgment must be reversed, and the cause remanded.
Reversed and remanded.