Wills v. Abbey , 27 Tex. 202 ( 1863 )

Bell, J.

We are of opinion that the court below did not err in the judgment which was rendered. The contract between Caruthers and the deputy surveyor, Mitchell, was contrary to law, (Hartley’s Dig., art. 1790.) Public policy required that the officers chosen to locate and survey the public lands should not be permitted to speculate in them, or to acquire interests in them, which would present to such officer the temptation to take advantage of the information which their official positions enabled them to acquire, to the detriment of the holders of certificates generally. (Flanikin v. Fokes, 15 Tex., 180; DeLeon v. White, 9 Tex., 598.)

We are also of opinion that there is nothing in this case to bring it within the principle laid down by this court in the case of Hunt v. Turner, 9 Tex., 386, and other cases, in which it has been held by this court that a contract originally made in contravention of law would not necessarily be set aside, where, after the removal of the legal inhibition, there had been such acquiescence in the contract, and acknowledgment or ratification of it, as to- give rise to overpowering equities in behalf of the party claiming under it. The cases referred to did not proceed upon the idea of a ratification of the original contract, but upon the fact of a new contract after the removal of the legal inhibition, or upon proof of circumstances creating equities superior to the legal title. The policy of the State in relation to the location and survey of the public lands, and especially the policy of prohibiting surveyors from purchasing or acquiring an interest in the public lands, is the same to-day as when the statute of 1836, to which reference has been made, was enacted. FTor can the proposition be maintained .that the contract will be enforced because something remained to be done to its complete execution, after the expiration of the surveyor’s term of office, such as the payment of the public dues. If the contract was made with a surveyor or a deputy surveyor, while in the discharge of his official duties, and the location and survey were made while he was acting officially, that is enough to invalidate the contract. Any other rule would enable a surveyor to 'take the fullest advantage of his official position, and by a timely resignation of his office, reap all the benefits arising from contracts which he was forbidden to make.

There is no error in the judgment, and it is therefore affirmed.

Judgment affirmed.