45 Tex. 560 | Tex. | 1876
This is an action of trespass to try title to twelve hundred and eighty acres of land, located and surveyed December 2,1851, by virtue of a certificate issued October 5,1847, by the County Court of Guadalupe county, to French Smith.
Appellee Chapman, in support of his claim to the land, relied upon a deed executed to him by said Smith on the 12th day of June, 1871, in pursuance of a contract or agreement made in January, 1853, of which the following is a copy:
“"Whereas I have had located, through the agency of E. H. "Wynn or "William Mitchell, a certificate, No. 117, for one third of a league of land, which certificate was granted to Freeman H. K. Day, deceased; and also my headlight certificate for twelve hundred and eighty acres — the two mak
“ Given under my hand and seal this 22d day of January, 1853. French Smith, [l. s.]
“Witness:
“Michael Erskine.
“ John P. Erskine.
“I do hereby agree to release all claims to said Smith for said sums by me paid in discharge of said judgment aforesaid, when the said Smith shall have complied with the above agreement. Ausustus A. Chapman.
“ The above obligation, when complied with, will also be in full consideration of a bond executed to me some years since for two thousand acres of land lying on York creek, in the county of Guadalupe. A. A. Chapman.”
This agreement was not recorded until the 12th of June, 1871, when it, together with the deed from Smith to Chapman, mentioned above, was acknowledged by Smith before the clerk of the District Court of Hood county, and filed
The instrument executed by Smith to appellee, is certainly a written contract or agreement relating to land, which must be recorded before it could take effect and be valid as to subsequent purchasers for valuable consideration -without notice and as to creditors, (Paschal’s Dig., arts. 4988, 4989, 4994,) unless the necessity of recording it until six months from the issuing of the patent 'is obviated by section 7 of the act of 29th of January, 1840, to detect fraudulent certificates and provide for issuing patents, which reads as follows, to wit: “Any person claiming land by virtue of an assignment made previous to the issuing of the patent by the Government on the said claim, shall have six months from the issuing of said patent to have the assignment proved up and recorded in the county where the land is situated; and any assignment
Unquestionably, it would require no very strained construction to hold the contract of January 26, 1853, to be in effect an assignment of the French Smith certificate previous to the issuing of the patent, under which Chapman equitably claims the land upon which the certificate was located on the issuance of the patent. And, if it, had been made previous to the location of the certificate, we see no reason to deny that the claimant under it would be protected in his title, both against creditors and purchasers, if proved and recorded within six months from the issuing of the patent to Smith. But to give this enactment its proper construction, and to determine the character of claims to land to which it is applicable, it is necessary for us to consider the object and purpose of the statute, of which it is a part, and also the character or class of property, whether real or personal, to which the certificate assigned, properly pertains or belongs.
As we have already said, the enactment under consideration is a part of the statute enacted to detect fraudulent certificates and provide for issuing patents to legal claimants, passed January 29, 1840, and as, in many instances, the pretended assignments were in fraud of the rights of tire parties entitled to the certificates, it was provided by the sixth section of this act that in future, patents should not issue in the name of assignees, but only to the party originally entitled to the certificate.' To protect assignees against the fraudulent claims to the land of the patentee or purchasers from him, the assignee was given six months from the issuing of the patent to prove up and place upon record his assignment. But the question here presents itself: Is it, the transfer or assignment of the certificate, a mere chattel until located, or a bond, obligation, or contract in writing concerning the land located by the certificate, which the registration laws
The certificate, until located, as has been often said by this court, is personalty, (Watkins v. Gilkerson, 10 Tex., 340; Evans v. Hardeman, 15 Tex., 480,) and may be assigned and transferred by parol. But when it is located, it loses this character. It then attaches to the land, and becomes a chattel real, and can be assigned and transferred by parol no more than the land itself. Instead of being merely property of itself, it is, like a deed, the evidence of title to the land upon xvhich it is located. And though its sale or assignment subsequent to location, if in writing, but not otherwise, may in equity be held to operate as a transfer of the land, it is the land and not the certificate which is the thing sold. The right to the certificate is an incident to and necessarily accompanies a transfer of the land. And as contracts in writing concerning land, to have effect against innocent purchasers and creditors, must be proved and recorded, so must a contract for a certificate which is to effect or pass an interest in land after its location.
If the certificate is assigned or transferred before location, the land, upon its location, vests in the owners of the certificate, and there is no property in the original grantee, to whom it issued, upon which the judgment or execution lien, can attach. Until its location, it has no locality for record, and being personalty merely, a transfer of it is not required to be recorded. But when located, if no time was given to the owner to prove and record his assignment, the patentee might, by a sale, either defraud the real owner or a subsequent purchaser. It was to prevent frauds of this character
The judgment is reversed and the cause remanded.
Reversed and remanded»