Baugh v. McLain

LEVY, J. (after stating the facts as above). Appellant’s right, as heir of James T. Kelly, is entirely dependent upon James T. Kelly’s having title or claim as against the state for the land situated in Panola county prior to and at the time the state patented the land to the several vendors of appellees. And it is believed that the trial court properly entered judgment for the defendants, for the record shows that appellant failed to establish title or claim in James T. Kelly to the land in suit in Panola county on any ground upon which the court should have decreed title to her. [1 ] Finding the fact to be, as the court did, that on August 5, 1838, Joseph Humphreys made conveyance of his conditional certificate No. 36 to Richard Hooper, and that Richard Hooper became the legal owner of the same, it would not appear that James T. Kelly was the legal assignee. And James T. Kelly not being the legal assignee of the original grantee, then neither Kelly nor his heir for him would be in a position to question the issuance of the patent in virtue of the certificate by the state. [2] As the conditional certificate was issued under the law of 1837, there was no prohibition or restriction upon such sale by the grantee. Graham v. Henry, 17 Tex. 164; Merriweather v. Kennard, 41 Tex. 281. [3] And as there is no proof in the record that the Richard Hooper who purchased the certificate was the same Richard Hooper who was county surveyor at the time, and as the court’s judgment would comprehend the finding that he was not, the sale of the certificate to Richard Hooper was not void. The recital in the unconditional certificate that James T. Kelly was the assignee of Joseph Humphreys, deceased, was not conclusive of his ownership. The unconditional certificate was issued by the county court at the time the act of September 5, 1850, was in force. 3 Gammel’s Laws, p. 38. That act only authorized the county court, as a land board to issue unconditional certificates “when the party applicant has previously obtained a conditional one.” The “party applicant” clearly intends to refer to the original grantee. And the commissioner of claims, it appears, so construed the law at the time he registered and approved this unconditional certificate as a genuine certificate. He registered and approved the certificate only “for the benefit of the heirs of Joseph Humphreys” upon the ground that the county court, as a land board, was not authorized to issue an unconditional certificate to an assignee, and Joseph Humphreys was dead. The register also shows, it is observed, that, at the time of the approval by the court of claims, there was noted another claimant as assignee besides Kelly. It is thought that the trial court was authorized to hear proof of ownership and decide it, as the county court, sitting as a land board, had not power at that date to issue unconditional certificates to an assignee, and, as a consequence, the recital in the certificate that James T. Kelly was entitled to it as assignee of Joseph Humphreys, deceased, would not be .conclusive of his right as assignee. The cases cited and relied on by appellant as seeming to hold that the act of a land board in issuing a certificate would be conclusive of the fact as to the assignee entitled to it are not at variance with this ruling, for those decisions were under different legislative acts than the act of 1850, and such other acts conferred different powers upon the board. The case of Pitts v. Booth, 15 Tex. 453, had under review the act of February 4, 1854, and the case of Merriweather v. Kennard, 41 Tex. 281, had under question the law of 1846 (Hart, Digest, 3097); and while the case of Capp v. Terry, 75 Tex. 396, 13 S. W. 53, was considering a certificate issued of date February 20, [925] 1850, the land board was acting under the law in force prior to the passage of the act of September 5, 1850. [4] But even assuming that it was established that James T. Kelly was the assignee of the unconditional certificate, it nevertheless must be held in this record, it is believed, that the application of the unconditional certificate to the Anderson county survey and issuance of patent and of certificate for unlocated balance to the heirs of Joseph Humphreys were not wholly unauthorized and void. It appears that, upon the issuance of the unconditional certificate, James T. Kelly undertook to make relocation of it, in accordance with sections 2 and 3 of the act of 1852 (3 Gammel’s Laws, p. 936), upon the same survey in Panola county previously made for the conditional certificate No. 36. In clear point of fact, it appears in the record, James T. Kelly made relocation of the unconditional certificate on August 4, 1853. The field notes of the survey on which said relocation was made were returned and filed in the land office October 21, 1854. These field notes as made were merely corrected field notes, it must be presumed as a fact, for the relocation of the certificate was in point of fact made on the same survey, and intended so to be done, made for the conditional certificate. The land commissioner, in passing on the field notes filed in the land office by James T. Kelly on October 21, 1854, acted on same on or before September 17, 1858, as follows: “Forfeited in consequence of nonreturn of field notes within the proper time, and the claim patented in Anderson county.” There was evident failure of compliance with the terms of the law requiring the return of field notes to the land office within a year from the date of relocation, and the land commissioner acted, in making actual forfeiture of the relocation, within his authority. The effect of the fact of forfeiture of the relocation for noncompliance with the terms of law in respect to the proper return of field notes and certificate of relocation was to make the land thereafter subject to survey as vacant land by persons holding valid certificates. Acts of 1852; House v. Talbot, 51 Tex. 462. And after such forfeiture in fact, and according to terms of law of the relocation of the unconditional certificate upon the Panola county survey, there was actual issuance of patent in virtue of the same unconditional certificate to land in Anderson county, and actual appropriation of land in Shelby county in virtue of certificate for the unlocated balance. [5] Though the patent and certificate for unlocated balance issued in the name of the heirs of Joseph Humphreys, deceased, same inured to the benefit of James T. Kelly, if he was the legal assignee, and he lost no advantage given him by the issuance of the certificate to him as assignee, but still retained such rights as he could legally establish. Merriweather v. Kennard, 41 Tex. 273; Hermann v. Reynolds, 52 Tex. 391; Lindsay v. Jaffray, 55 Tex. 626. [6] At the time of the issuance of the patent and certificate, both the conditional-and the unconditional certificates were on file in the land office. And the conditional certificate being on file since March, 1854, Kelly would have means of knowing that there were claimants of ownership thereof adverse to him. And knowing, as it must be presumed that Kelly did, of the forfeiture of his relocation and of the application of the certificate to the survey in Anderson county made by John Smith, assignee of the conditional certificate, and patent issuing thereon, and taking no proceedings in respect thereto, but acquiescing, it is thought that Kelly would be precluded to assert against the state or the appellees any prior valid right to the land in Panola county. And in view of the facts it is not believed that the acts of 1871 could be held applicable and operative and could make void the issuance of the several patents to the land under which appellees hold title. 6 Gammel’s Laws, p. 962; Id., vol. 7, p. 47; Adams v. Railway Co., 70 Tex. 252, 7 S. W. 729. The judgment is affirmed. Footnotes [1] <S=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes