Bohannan v. Hemby , 23 Tex. 475 ( 1859 )

Bell, J.

We are of opinion, that there is no error in the judgment of the court below. The evidence shows most satisfactorily, that the land in controversy was surveyed for the appellee, Elizabeth Hemby, then Elizabeth Robertson, upon a genuine certificate, in the year 1845, The fact, that the survey commenced in Red River land district, and crossed the line between that district and Lamar land district, running into the last named district for quantity, did not invalidate the survey. (Hart. Dig., Art. 1806, 2168.) The Act of May 9th, 1846, authorized and required the commissioner of the land office to issue patents in all cases, upon surveys of land lying in two or more counties, where there was no conflict between such surveys and others,.and where there was no other objection than that of a division of such surveys, by a county boundary running through them. (Hart. Dig., Art. 2168.)

In such cases, it was the duty of the interested party, to have the field notes of his survey recorded in both land districts, so as to give notice that the land was appropriated, and so as to inform the commissioner of the land office that the survey did not conflict with other surveys. In this case, the field notes of the survey were not recorded in- the county of Hopkins, which had been formed out of that portion of Lamar land district, in which a portion of the land-was situated, until the month of July, 1856. If, before the field-notes of this survey were recorded in Hopkins county, a survey had been made by the county surveyor of that county, in good faith, and for a party who had no notice of the former survey, we do not doubt that the right of the last locator would prevail over the claim of the former. But, in the present case, it is shown, that the pre-emption claimant had full and particular information of the rights of Mrs. Hemby, long before his survey was made; and it is further shown, that he settled on the land about the month of January, 1854; probably at a time when no pre-emption statute was in force. The record also discloses the fact, that the survey of the pre-emption claimant was filed in the land office at the time the patent issued to Mrs. Elizabeth Robertson, now Mrs. Hemby. The claim of Mrs. Hemby to the land, embraced within the survey of the appellant, was not only known to him before his survey was made, but the witness, Merchant, testifies that the appellees were living on the land in the month of September, 1855, on the fourth day of which month, the appellant caused his survey to be made. The record shows, also, that the claim of Mrs. Hemby to the land in controversy, was never at any time abandoned, but that, on the contrary, she was endeavoring, through her agent, to comply with all the requirements of the law, in order to secure a patent to the land. It is shown, that the appellant knew, and stated to others, that Mrs. Hemby claimed the land, at the time he caused his survey to be made. By the" issuance of the patent, Mrs. Hemby is vested with the legal title to the land, and we think her equities altogether superior to any that can be asserted by the appellant. The judgment of the court below is, therefore, affirmed.

Judgment affirmed.