23 S.W. 899 | Tex. App. | 1893
There was error in the court's conclusion that the location in Kimble County under duplicate certificate number 108 had been made prior to the location in controversy under duplicate certificate number 30/185. The testimony of the Land Commissioner was explicit, that duplicate number 108 had been located in Kimble County, May 19, 1877, which was long after this duplicate had been lost and substituted by duplicate number 29/10, issued October 23, 1867; and that the location in Wilbarger County, from which this suit arose, had been made September 10, 1874, under duplicate 30/185, issued upon proof of loss of duplicate 29/10 as a substitute therefor, March 7, 1873.
The recitals in the deed made in Indiana, October 25, 1858, by David Seibert and wife, to appellant, to the effect that they thereby conveyed all their right, title, and interest in the lands lying in the State of Texas that had been located under the headright land certificate of William Wentworth for one-third of a league of land, issued by the Board of Land Commissioners of Matagorda County, May 3, 1841, substituted September 25, 1857, by duplicate certificate number 108, upon proof of the loss of the original; together with the following endorsements on duplicate 108: "Filed April 18, 1859, by J.M. Donathan. Filed January 23, 1862. Filed March 22, A.D. 1876, at 10 o'clock a.m.; C.M. Hobbill, D.C.M. Co. Refiled July 19, 1877. J.J. Groos, Commissioner," were not circumstances sufficient, we think, to overcome the positive testimony of the Land Commissioner. *507
There was no evidence that appellant caused the location in Kimble County to be made; but on the contrary, the evidence tended to show that he had nothing to do with it, except to protest, through his agent, against the issuance of patent thereon. The corrected field notes of this survey recite that it was made for D.N. Terrill, assignee. The patent was afterwards cancelled by the Land Commissioner, of his own motion, on the ground of the supposed invalidity of the original certificate. Under these circumstances, we think this location should not prejudice appellant's prior location of the land in dispute, which, though made without his personal knowledge, was ratified by him, while the subsequent location was rejected.
There was error also in the conclusion that appellant, plaintiff below, could not recover because he had failed to prove that the land in controversy had been surveyed within twelve months from the date of his entry or application for said land. As this survey was made prior to 1879, the law required no written application to be made. Possession by the surveyor of the certificate was sufficient. The return of the field notes, with the duplicate certificate, to the General Land Office within twelve months after the survey was made, and prior to the inception of appellees' rights, furnished sufficient evidence of a location prima facie valid, provided the duplicate certificate itself was also valid.
This brings us to the most important question in the case, whether appellant made out a prima facie case of a valid certificate. If he did, the proof relied on to rebut it was not, in our opinion, sufficient to deprive him of a recovery against a subsequent locator. While a prior locator who has not secured a patent to the land must show a valid certificate and survey in order to recover, we understand the rule to be, that, like any other plaintiff, he is only required in the first instance to make out a prima facie case, and not to exclude all possible defects in his title.
It is not contended that the original Wentworth certificate, or either of the duplicates prior to number 80/185, was invalid when issued; but the contention seems to be, that number 30/185 was not properly issued in compliance with the statutes providing for the issuance of duplicate certificates; and that if so issued, it was invalid, because that for which it was substituted had been absorbed by prior location.
The ground upon which the court held its issuance to be void for want of compliance with the statute on that subject was, that there was no proof, as required by article 3885, Revised Statutes, that notice had been given of the loss and application for a duplicate. This proof consisted of the certificate of the publisher, accompanying a printed advertisement of the loss, etc., to the effect that the publication had been made for sixty days, on file in the Land Office since about 1872 or 1873, which certificate showed a substantial compliance with the statute, except that it was *508 not sworn to. The Commissioner seems to have been satisfied of its truth, as manifested by his issuance of the duplicate. The evident purpose of the statute was to furnish evidence for his action; and if in fact the requisite publication was made, as we think should be inferred, in the absence of further showing, the statute was substantially complied with.
While this proceeding to substitute is not free from the suspicion that it was conceived in fraud and consummated through perjury and forgery, by a stranger to the title, we are of opinion that the proof did not go far enough to invalidate it on that ground. The invalidity, then, must depend upon the alleged absorption of the antecedent duplicate as the result of a previous location.
It appears that duplicate number 29/10 was located in Fannin and Lamar counties, in the year 1869, and the survey forfeited for nonreturn of certificate. It also appears that duplicate number 108 was at one time located in Jack County, and the survey forfeited for nonreturn of the certificate by July 29, 1872. It does not appear at whose instance these locations were made. Appellant had no personal knowledge of them, but from time to time had several agents in the State, he being all the time a nonresident. It further appears that no land has ever been patented, except as shown above, by virtue of the original William Wentworth headright or any of its duplicates. No explanation was made of the file marks on duplicate number 108.
We are of opinion that the surveys forfeited for nonreturn of certificate did not invalidate the certificate itself; that it still had virtue left in it, and is not within the rule which holds a land certificate, when once located and returned to the Land Office, functus officio, unless withdrawn under some express provision of the statute. If during the life of duplicate 108 it was thus tied to a survey of land by being located and returned to the Land Office, and afterwards withdrawn without statutory authority, its career was ended, and no further duplicates could be lawfully issued. Adams v. Railway,
While appellant's title was by no means free from suggestions of infirmity, we have reached the conclusion that it was prima facie good, and that to overcome it the proof must do more than raise a suspicion of its invalidity.
The judgment will therefore be reversed and the cause remanded for a new trial.
Reversed and remanded.
Pending a motion for rehearing, the Supreme Court, upon questions certified to it in this cause, held, that the forfeiture of the survey in 1869 *509 did not invalidate the certificate itself; and, in effect, that false and fraudulent representations of ownership and authority in procuring the issuance of the duplicate did not defeat the right of the owner of the certificate to claim, as against a subsequent locator, the land located in 1874 by virtue of such duplicate. Motion overruled.
