Lewis v. Mixon , 11 Tex. 564 ( 1854 )

Hemphill, Ch. J.

Whether there be error in this decision or not, will depend upon which of the parties, plaintiff or defendants, has the superior right or equity to the land. The record does not show whether the land patented to Mixon, was located and surveyed anterior to the 16th February, 1846, the day on which the State Constitution went into active operation, or subsequent to that period. It will be seen, however, that the fact either way is not material. To assume that the location and survey were anterior to that day, would be the condition of facts most favorable to defendants, and in-Jhis aspect we will consider them, and adjudge upon their' legal effect.

That the land, included within the boundaries of plaintiff’s survey, was from the 1st January, 1844, to the 16th February, 1846, in contemplation of law, vacant; or rather that it was subject to location, survey and patent, in disregard of the rights of the plaintiff, cannot be doubted. Conceding, then, that the locations and surveys of Mixon were made prior to the constitutional provision, there is no doubt of their being made by lawful authority, and on land subject to location; and had they been patented prior to the 16th February, 1846, the plaintiff would have been precluded from setting up any pretensions in virtue of his original location and survey, although his certifícate might have been subsequently, as it was, in effect, adjudged legal and genuine. (Warren v. Schuman, 5. Tex. R. 441.) The locations, surveys and patents of Mix-on would then have been made at a time when there was no countervailing, paramount equity or right, at least none such as were recognized, or were cognizable in Courts of Justice.

But, although the locations and surveys of Mixon may have been prior to the 16th February, 1846, yet his patents were not issued until subsequent to the removal, by the Constitution, of the bar from the plaintiff’s claims, and, in fact, until proceedings to test its validity had been instituted. What was the effect, then, upon the rights of the parties, of this renewed authority to sue on the claim of the plaintiff, and if just, to have it re-established 2 Unquestionably, to suspend the rights of the relocator, in the condition in which they were found at the re-opening of the tribunals, to revive the rights of the original claimant, and if these were finally established, to extinguish altogether those of the relocator, and to vest the fee, or the right to a patent, in the original claimant. Such would be the legitimate result of the right to sue and reestablish the original claim, in all cases where the Government had retained the fee, or where it had not been relinquished to the relocator during the existence of the bar against adverse claims.

But we are not left altogether to deductions, as to the necessary or legitimate results of the revivor of the original right, if, on investigation, it were found to be genuine. The Constitution, Art. 11th, declares that relocations on surveys of unrecommended certificates shall not be disturbed until the said certificates are established. This, as we have said in Warren v. Schuman, is a negative pregnant with an affirmative. It negatives the right to disturb a relocation until the establishment of the original claim ; and by implication it affirms this right, when the primitive claim is adjudged valid. From the terms and import of the provision, and from the object to be secured by reviving the right to sue the Government, it cannot be inferred that the convention intended any thing more than that relocations should remain in the state in which they were found at the instant the original claim was quickened into life, and they should not be molested until the meritoriousness of the original claim was judicially ascertained. There was great propriety and justice in this reservation in favor of relocations. The land claimed under these relocations, had for more than two years been in effect vacant. It was well known that many of the original claims could never be re-established. It would have operated, then, great hardship, had the mere authority to sue annulled the rights of the relocators, or required them at once to remove their claims. But, while protecting the rights of the relocators, it was not intended that those of the original claimants should be sacrificed. If his claim were just, he was in fact the greater sufferer of the two.- His certificate had emanated from competent authority, and his location and survey were made in conformity with law. By error on the part of the Government, or its officers, he was denied the fruits of his claim. The Government, willing to redress the evils inflicted, permits him again to sue, and prove his claim to be genuine. Can it be contended that in the mean time, and while the claimant is prosecuting rights originally just, and which should always have been recognized, the Government could rightfully convey away the land to others, leaving him, at the end of a protracted litigation, with his naked certificate, but despoiled of his lands ? Certainly, it cannot be inferred that the Government intended any such limited and imperfect remedy.

The intention of the Convention was, doubtless, to give to the certificate, established under the Constitution, the effect it would have had, if prosecuted and sustained under the Act of 1841. On a claim re-established under that Act, the Commissioner is directed to issue a patent in the same manner, as if the claim had been recommended as genuine and legal by the Detective Board of Commissioners. (Art. 2037.) Had it been recommended by the Board as genuine, the claimant would, no doubt, have been entitled to a patent fot the land previously surveyed; and he is equally entitled to a patent, under the direction of the statute, to issue the patent in the same manner, as if the certificate had been originally recommended. The effect of the implied affirmative, in the constitutional provision, is substantially the same with the requisitions in the statute. The latter directs the patent to issue in the same manner as on a recommended certificate, thus overriding all relocations and surveys which may, in the mean time, have been made. The latter, in effect, requires the re-locations to yield to the original claim, if it be shown to be legal and genuine.

That the relocation has equity, may be admitted ; but so has also the primitive location. And that being the case, the former must yield, on the principle that the equity prior in time is better in right.

The fact that Mixon has received a patent, cannot injuriously affect the rights of the original claimant. His rights, (the original claimant’s,) when established, relate back to the date of the authority to sue. His claim, by such relation, becomes the older and better equity, not only from, the judgment, but from the date of his authority to sue and establish his claim; and, of course, all acts, done in the mean time by the relocator, are null and void, as against the prior claim. Nor can the relocator complain of this result. He had full notice that his claims could not avail against those of the original grantee, if the latter were ever judicially established; that in that event his relocations were to be, or might, at the pleasure of the original claimant, be disturbed and held for naught. He had not secured the fee, before the original claimant was authorized to sue. That was still retained by the Government; and he was apprized, or might have been, that it would be ceded to the original claimant, as having the superior equity. He cannot complain that the contingencies have been against him, and that the original claim having finally succeeded, his acts, in contravention of that claim, and to perfect his own title, have become nugatory. (Mills v. Stoddard et al., 8 Howard, 345.)

For the doctrine in relation to a junior patent being overreached by an older and a better equity, see Ross v. Borland, 1 Peters. 655 ; Les Bois v. Brammel, 4. How. 462; Warren v. Schuman, 5 Tex. R. 441.)

We are of opinion that the plaintiff has, on his averments, good cause of action ; and it is therefore ordered that judgment be reversed and cause remanded.

Beversed and remanded.