Spier v. Laman , 27 Tex. 205 ( 1863 )

Moore, J.

The right of the appellee Laman to acquire three hundred and twenty acres of land as a pre-emptor, by virtue of his settlement in 1853, and subsequent affidavit and survey, has been fully established by a former decision of this court. (Jennings v. De Cordova, 20 Tex., 512.) We see no reason to question the correctness of that decision. The point is, consequently, not regarded as a matter for discussion.

The fact of Laman having purchased under Spier’s title, did not preclude him, when he ascertained that this title was worthless, and that the land was a part of the public domain, from claiming a pre-emption upon it. He, certainly, was entitled to the same privilege with all other citizens, to appropriate this, or any other part of the public lands of the State, in the manner prescribed by law. Spier, at that time, had neither a legal nor equitable interest in the land. The assertion, by Laman, of a pre-emption claim upon the land, by virtue of his settlement, worked no injury to Spier, and deprived him of no right. N or was Laman precluded from claiming his pre-emption, by reason of his entry upon it as a purchaser, under the void title by which it was then claimed. When he learned the facts respecting it, he was entitled to assert the privilege conferred upon him by law, by reason, of his settlement upon vacant public domain. His previous ignorance of the nature of the title did not estop him from doing so. (Cravens v. Brooke, 17 Tex., 268; Jennings v. De Cordova, supra.)

The affidavit by Laman, that he believed the land was vacant, was a substantial compliance with the law. It was not the object of the first section of the pre-emption law of 1845 to prevent settlements upon lands that may, at any time, have been located or surveyed “by virtue of some genuine, legal and valid certificate, or other evidence.of title,” although the land could be no longer held or claimed under such location or survey. Although initiatory steps had been taken to appropriate the land by virtue of some genuine claim, if the purpose of doing so had been abandoned, and the land had returned to the mass of the public domain, it was equally subject to appropriation by a settlement and improvement, as by the location of a certificate.

The original equitable title which Spier had to the land, had been long lost by his failure to comply with the requisitions of the law for the perfection of Ms title. The laws authorizmg him to do so had been repealed, or had expired by their own limitation. He could assert neither a legal nor equitable claim to the land at the time Laman settled upon it; and he can only now claim it by reason of the legislative grant. This is the only title upon which he can rely; and he must hold under it subject to the qualifications and limitations with which the legislature saw fit to qualify their bounty. Outside of this, he can assert no claim to the land whatever. The act of the legislature, however, expressly declares, that it “shall not interfere with the rights of third persons.” Did Laman, by virtue of his settlement, affidavit and pre-emption survey have any rights ? If so, the law did not affect them, and the title conferred by it can not be invoked against him. If it were conceded that Spier had a dormant equity of an older date and superior merit to that of Laman, it would place him in no better position. The court is not authorized to canvass the merits of conflicting equities. The act of the legislature brings the whole matter to the single issue, whether Laman had any rights which attached to the land at the date of its enactment. The bare statement of the proposition shows that the question is too plain for argument. The settlement upon and improvement of vacant land, together with the affidavit and survey, severs the land from the general mass of the public domain, and gives the settler an equitable, though defeasible title to it. He acquires thereby a right of possession which, unless he fails to comply with the terms of the law, ripens into a. perfect legal title. He has such an interest or right as, upon his death, will descend to his widow and heirs; or, that he may sell and convey, subject, of course, to the performance, by the purchaser, of the conditions upon which the title is held.

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

Judgment affirmed.