Fowler v. Allred , 24 Tex. 184 ( 1859 )

Wheeler, C. J.

At the period of the appellee’s settlement, in 1853, and of his survey in June, 1854, the land in question was not subject to be acquired by pre-emption. It was within the limits of Peters’ colony, and had been reserved from being thus appropriated, by the Act of the 10th of February, 1852. The reservation did not expire, until the 10th of August, 1854. (Laws 4th Leg., ch. 72, § 3.) The appellee’s settlement and survey, were therefore unauthorized by law, and conferred on him no right whatever to the land. But after the reservation had expired, on the 11th of August, 1854, his settlement and improvement gave him a right of pre-emption, under the law then in force, to 160 acres, to include his settlement or improvement. (O. & W. Dig. 744, Art. 350.) According to the case of Jennings v. De Cordova, 20 Texas Rep. 508, he had an equity to the quantity of land he was thus entitled to appropriate, which the Act of the 15th of August, 1856, (O. & W. Dig. 745, Art. 358,) operated upon and revived, validating his survey, and giving it a priority over an intervening location, not perfected into a patent.

The appellee’s title, therefore, would have priority over the appellants’ location, made in 1855, to the extent of his prior equity, but no further. That equity extended to 160 acres only. (O. & W. Dig. 745, Art. 354.) This, then, was the extent of his equity, which was revived by the Act of the 15th of August, 1856 ; and to this extent his title was superior to the appellants, but beyond that, he had not the shadow of a right.1 He could acquire none in contravention of law. As between himself and the government, his patent passed the right of the government; but the appellants’ location had lawfully appropriated all but the 160 acres, which he was entitled to claim by virtue of his settlement on the 11th of August, 1854, under the preemption law then in force; and the land thus appropriated by the plaintiffs, to which he had no prior equity, the patent did not convey. (Howard and wife v. Perry, 7 Texas Rep. 259; Hamilton v. Avery, 20 Id. 612.)

The result is, that by virtue of the Act of the 15th of August, 1856, and the appellee’s patent, he has a title superior to that of the appellants’, to 160 acres of the land in question, including his improvements; but to the residue, the right is with the appellants. The judgment must therefore be reversed, and the cause be remanded, in order that the court may cause the portion of the land, to which the appellee is entitled, to be surveyed and set apart to him; and that the appellants may have judgment for the residue.

Reversed and remanded.