Merrill v. Roberts

Delany, J. Com. App.

The third assignment of error is, in effect, that the pleadings of the plaintiffs do not set forth a cause of action upon which the judgment in their favor could be legally rendered.

The principal objection which they make to the petition is the want of any allegation that the headright certificate, issued to their father, had been approved or established by suit; and they refer to a line of decisions like Hughes v. Lane, 6 Tex., 294, and Peck v. Moody, 23 Tex., 94. The authority of these decisions is not questioned ; but they deal with a state of facts in which no patent had issued, and in which the certificate, or the certificate and survey, were the sole ground of the plaintiff’s claim.

Here the petition alleges not merely the issuance of the certificate, but its loss and the issuance of a duplicate, and further, the issuance of the patent. These allegations appear to us sufficient, without the additional averment of the recommendation of the certificate or its establishment by suit. See Burkett v. Scarborough, 59 Tex., 495, and authorities cited.

The next question of importance arises upon the fifth assignment of error, which is as follows: “The claim of the plaintiffs appears upon the face of their pleadings to be a stale demand, and should have been so adjudged.”

The certificate issued to the father of plaintiffs in 1838. Their mother died in 1839. In 1851 the father transferred his interest in the certificate to one M. T. Johnson, and soon afterwards Johnson made a similar transfer to the defendant. The certificate having been lost, a duplicate issued in 1855 in the name of the father, Moses F. Boberts, and on April 10, 1860, the land was patented to the defendant as assignee of Boberts. The plaintiffs further allege that soon after the defendant’s purchase of the certificate he left the state, and has been absent ever since; that prior to the location of the certificate they did not know that any one claimed it adversely to them; nor did they know afterwards the names or places of residence of those so claiming, though they made every effort to ascertain the facts; and that they have never received any portion of the community estate of their parents. That within a year after the issuance of the patent the civil war commenced, and the statute of limitations was suspended until March 1, 1870. That the land was located in Wichita county, which, up to the time of the filing of this suit, was not organized, was an uninhabited county, subject to the invasions of hostile Indians, and that from February 10, 1874, until April 23, 1879, it was not attached to any organized county for judicial purposes, and no court had jurisdiction to try titles to land within its limits.

Upon this state of facts was it the duty of the court, of its own motion, to treat the case of the plaintiffs as a stale demand? We incline to think not. Up to the time of the issuance of the patent, it does not clearly appear from the petition that the plaintiffs were aware of any claim of the defendant inconsistent with their own; and if they were, the continued absence of the defendant from the state would prevent the running of the statute against them. R. S., 3216. Soon after the issuance of the patent the statute was suspended, and remained suspended until March 30, 1870. And in ordinary cases laches will not be imputed to a plaintiff who fails to bring suit while the statute is suspended. Reed v. West, 47 Tex., 240.

The plaintiff below had alleged that, from 1874 to 1879, the county of Wichita, in which the land lay, was not attached, for judicial purposes, to any organized county, and hence there was no court in which this suit could be brought. The plaintiff in error, in this court, controverts that statement, and refers us to several acts of the legislature, insisting that, as they are public acts, we should take notice of them. By the act of May 10, 1870, sec. 13, a number of counties, and among them Wichita, were attached to the county of Montague for judicial purposes. Acts 1870, p. 53.

By the act of February 10,1874, section 13, above mentioned, was amended or rather replaced by an entirely new section 13. In this amendment the provision concerning Wichita was omitted. Acts 1874, p. 7.

This was treated as a repeal of the section 13 of the first named act. Holden v. State, 1 Tex. Ct. App., 225.

By act of April 23, 1879, a number of counties, and among them Wichita, were attached, for judicial purposes, to the county of Olay. The preamble to that act is as follows: “ Whereas, the unorganized counties . . . mentioned in the caption of this bill are not, by any statute now in force, attached to any organized county for judicial . . . purposes; therefore, . . .” Acts 1879, p. 150.

This is all that seems necessary to be said on this part of the case. If the plaintiff in error had been without fault himself, he might have been in a position to “cast the first stone” at the opposite party; but in view of his own shortcomings he can hardly demand a very rigid scrutiny into the diligence of the defendants in error.

Our opinion is that the judgment should be affirmed.

Affirmed.

[Opinion adopted June 23, 1885.]!