Smyth v. Veal

396 Opinion.— The plaintiffs in this suit are the present holders and owners of the land under title described as above set forth, and all duly recorded in Limestone county. But in 1871 Win. Anglin, the original grantor of the certificate, sold it to the defendant, who located it upon lands in Wichita county. How plaintiffs claim they are the owners, not only of the land in Limestone county, but also of the certificate; and that, as the owners of the certificate, they are entitled to the land in Wichita county upon which it has been located by defendant. Plaintiffs urge this proposition : “ When the owner of a land certificate has it located upon land and sells the land so located, referring to the land so sold as located under such certificate, he thereby parts with his title to the certificate and cannot afterwards abandon such location, or sell the certificate in prejudice of the rights of his former vendee; ” and refer to Paschal’s Digest, articles 4301, 4302. Johns v. Pace, 26 Tex., 270; Smith v. Tucker, 25 Tex., 594; Baggett v. McKenzie, 28 Tex., 581. A majority of the commissioners hold that when Anglin, for the benefit of his vendees, bought in the superior title, he was discharged from all the obligations of his contract, and might dispose of the certificate as he chose. Also the legal title to the certificate was in Anglin ivhen he sold to appellee. There is no evidence in the record that appellee had any knowledge of the claim of appellants. If the plaintiffs or their vendors had desired to give notice of their claim to their certificate they should have filed it in the land office. Baggett v. McKenzie, 28 Tex., 581. A purchaser of the certificate from Anglin without notice would take good title. Law v. Berry, 22 Tex., 372. Affibmed.