Adams & Wicks v. House

West, Associate Justice.— Under previous decisions of this court, in cases where the defense of outstanding title was set up, it must, in this case, be held that, under the facts disclosed in evidence, properly admitted, too, under the plea of not guilty, the appellants showed a valid outstanding title superior to the appellees to the locus in quo existing in Victor Considerant, derived from the same source as that of the appellees. Mann v. Falcon, 25 Tex., 274; Walker v. Emerson, 20 Tex., 710; Stroud v. Springfield, 28 Tex., 651; King v. Elson, 30 Tex., 252; 1 vol. Pasch. Dig. of Laws of Tex., pp. 890, 891, art. 5307, note 1153; Burleson v. Burleson, 28 Tex., 413; Styles v. Gray, 10 Tex., 503. The case of Hooper v. Hall, 35 Tex., 82, may also be looked to. See McSween v. Yett, Austin term, 1883 (2 vol. Tex. Law Rev., p. 220), 60 Tex., 183; Hubert v. Grady, 59 Tex., 503. The patents which issued to De Cordova in February, 1857, had the effect, by reason of the fact of his previously conveying the land described in them to Considerant to invest Considerant eo in-stanti, at the moment of their issuance, with the legal title to the- - locus in quo. Johnson v. Uewman, 43 Tex., 642; Walters v. Jewett,. 28 Tex., 200; Webb v. Webb, 15 Tex., 274; Wilkinson v. Wilkinson, 20 Tex., 242; Harrison v. Boring, 44 Tex., 264; Holmes v.. Johns, 56 Tex., 41. As a matter of fact, judicially known from the history of the German Emigration Company and Fisher and Miller’s colony at [642] the date of De Cordova’s deed, the lands in suit had already been surveyed for the contractors as their premium lands, and were in fact severed from the public domain. See Act of February 1, 1850. See, also, 1st vol. Pasch. Dig. of Laws, pp. 248-253. The record, too, discloses the fact that these very lands in suit had been surveyed by John Harvey, the proper officer, several years before the date of De Cordova’s deed to Considerant. The premium certificates that were afterwards issued were by authority of the legislature (Act 1st February, 1856) applied to the original field notes of Harvey’s surveys. We are of opinion that the evidence showed in Considerant a superior legal title to the lands in suit to that exhibited by appellees, and that the appellants had the legal right to avail themselves of it to defeat a recovery. As the case was tried by the court below without a jury, this court now proceeding to render the judgment that the district court should have rendered, it is ordered that the appellees take nothing by this suit, and that the same be dissmised, and appellants go hence without day, with costs, etc. Dismissed. [Opinion delivered May 27, 1884.]