Early v. Compton , 1912 Tex. App. LEXIS 696 ( 1912 )

⁸²²⁴ Writ of error denied by Supreme Court. The land in controversy was surveyed by virtue of certificate No. 3918/4019, issued by the Commissioner of the General Land Office April 3, 1855. That certificate authorized the location and survey of 12,931,450 square varas as the balance unlocated of certificate No. 486 for one league and one labor of land, issued April 11, 1838, by the board of land commissioners of Bexar county. Said certificate No. 486 was in the words and figures following, to wit:

"No. 486. This is to certify that John Sutherland, assignee of Iginio Tejada, appeared before us, the board of land commissioners for the county of Bexar, and proved according to law that said Tejada is a native citizen of Texas, a married man and entitled to one league and labor of land upon condition of paying at the rate of $3.50 for every labor of irrigable land, $2.50 for every labor of temporal or arable land, and $1.20 cents for every labor of pasture land which may be contained in the survey secured to said Tejada or his assigns by this certificate.

"Given under our hands this 11th day of April, 1838.

"David Murphree, Pres.

"John S. Simpson, Ass'n Com

"William P. Delmour, Clerk."

Appellants insist it was not shown that Tejada had assigned his right to the certificate to John Sutherland, otherwise than by the recital therein that Sutherland had appeared before the board of land commissioners and made proof of the facts which authorized them to issue it, and that that recital, in face of the further recital in the certificate that "said Tejada," quoting from a proposition in the brief, "is * * * entitled to one league and one labor of land * * * secured to said Tejada or his assigns by this certificate," was not sufficient to support the finding that Sutherland had acquired Tejada's rights. It is further insisted it therefore appeared that the legal and equitable title to the certificate was in Tejada or his heirs, and hence that a judgment in favor of Pascal's administrator, whose title emanated from Sutherland, was unauthorized.

We do not agree that the recital in the certificate was not sufficient to support a finding that Sutherland was the owner of Tejada's right to the certificate. That recital, we think, demanded such a finding. The law in force at the time (Paschal's Digest of Texas, art. 4140) authorized a board of land commissioners to issue such a certificate to one claiming as assignee of a person entitled to it. Authority to so issue such a certificate, we think, imposed on the board a duty and power to determine whether the applicant therefor in fact was such person's assignee or not. The Bexar county board, discharging that duty and exercising that power, determined that Sutherland was Tejada's assignee and entitled in his right to the certificate. At least, as against all persons other than Tejada and those claiming under him, in a proceeding like this one is, the action of the board should be treated as conclusive of the question. Walters v. Jewett, 28 Tex. 192; Merriweather v. Kennard, 41 Tex. 281; Bradshaw v. Smith, 53 Tex. 479; Burkett v. Scarborough, 59 Tex. 497; Fleming v. Giboney, 81 Tex. 422, 17 S.W. 14; ``Davis v. Bargas, 88 Tex. 662,32 S.W. 874. We do not think the further recital in the certificate specified in the proposition in appellants' brief, from which we have quoted, is inconsistent with the finding by the board of land commissioners that Sutherland was Tejada's assignee. That recital, considered in connection with others in the certificate, we think amounted only to this: That Sutherland had proved to the board that Tejada, whose right he claimed, was entitled to such a certificate, and that he or his assignee would become entitled to the land surveyed by virtue of it, if he paid government dues thereon, according to its character, as required by law.

Appellants complain of the action of the court in refusing to render judgment in their favor on the plea of stale demand interposed to the recovery sought by appellee, Compton, of the 640 acres surveyed by virtue of the certificate issued to the H. G. N. R. R. Co., and claimed by Hatch. The contention is based on the fact that said 640 acres was patented on a survey thereof made by virtue of the certificate issued to said railroad company before it was patented on the survey made by virtue of the certificate issued to Sutherland, as assignee of Tejada. The patent on the survey first mentioned having been first issued, it is insisted that the legal title was in Hatch, and that the title asserted by Compton was an equitable one, against which a plea of stale demand was available. The rule, as we understand it to be settled in this state, is that in trespass to try title, whether the plaintiff is asserting a legal or an equitable title, the plea of stale demand is not available as a defense. New York Texas Land Co. v. Hyland, 8 Tex. Civ. App. 601,28 S.W. 206; Lowry v. McDaniel, 124 S.W. 711; Punchard v. Masterson, 103 S.W. 830.

Other assignments in the brief present for review questions made on the former appeal of the case. Those questions were then, we think, determined correctly.

The judgment is affirmed.