Edwards v. James, Adm'r, 13 Tex. 52

Lipscomb, J. There are only two grounds of error that we-regard as material, presented by the record in this case. The-first is the granting a new trial, on the application of the defendants. There was a judgment by default, and a writ of inquiry executed before Judge Hancock, holding the Court for Judge Devine. Judge Hancock had signed the minutes of the proceedings before him, and Judge Devine taken his seat on the bench, before the motion of the defendants for a new trial had been acted upon; and the motion was granted by the latter.

Plaintiff’s counsel allege that it was not competent for Judge Devine, who was not presiding when the judgment was rendered. It would be more regular, where one Judge sits for another, for him to act upon all matters or motions arising out oí his proceedings, before he leaves the bench ; bnt it is not indispensible that it should be so done, and if anything is left undone when he leaves the bench, and another Judge takes the seat before the expiration of the Term, the Judge last taking the bench can dispose of, and act on such matters, if he was competent to have tried the case out of which the motion arose.

To make the case most strong" for the plaintiff’, suppose the Term had expired and the Court adjourned, there can he no question bnt the Judge of the district, Judge Devine, could, on sufficient grounds, have granted a new trial, in the exercise of equity jurisdiction. (Gross v. McClaran, 8 Tex. R. 341; Stewart v. Jones, Adm’r, 9 Id. 469; Mussina v. Moore, Supra.) The second ground of error we propose examining, is the ruling of the Court in excluding from the jury the plaintiff’s evidence of the location by Mm, of good and valid land certificates, on the land sued for.

These locations were made in 1847, and shortly after a suit was brought on them for the land in controversy in this case, which was finally decided in tMs Court in favor of the defendant, and this suit was commenced for the same land within the time prescribed by the statute, within which a second suit is allowed to be brought for the same land. The locations had not been removed, and there is no question that at that time a location gave a right of action for the land. On the 10th February, 1852,

an Act of the Legislature was passed, the eighth

Section of which provides, u that all lands heretofore located by virtue of any “genuine claim to land, shall he surveyed within twelve “months from the passage of this Act, or the location shall “ be null and void,” cited in Stewart v. Lapsley, 11 Tex. R. 41. This suit was commenced on the 15th October, 1852, at which time twelve months had not elapsed from the passage of the Act referred to, and the location was not annulled at that time, for want of a survey.

But more than twelve months had elapsed when these locations were offered in evidence and rejected on the ground, it is presumed, that they had not been surveyed at that time, and by the terms of the statute, if stringently applied, had become null and void.

But it appears from the record, that the plaintiff had not been able to have the surveying performed, the District Surveyor refusing to survey the locations for the reason that the land located upon was covered by an old claim, the one interposed by the defendants ; and that a suit by mandamus had been instituted, by the plaintiff against the Surveyor, to compel him to survey the land located, before the expiration of the twelve months, and was then pending. The question then arises, Does a location under these circumstances come within the spirit and meaning of the Act of February 10th, 1852 ?

That it is not an exception, provided for by a literal construction, must be admitted.

It is not, however, to be believed that the statute was intended to require of a locator to do a thing not in his power, but was designed to put an end to the negligence of locators, that had become a serious evil, in wilfully omitting to have the land located, surveyed, preventing others from locating thereon, and perhaps speculating on the chances of an appreciation of the land located, or raising the location and making a more valuable selection; and further, that, by so holding locations without surveys, it was withholding the land from being subject to taxation, in fraud of the revenue of the State; and it is not believed to have been intended to embrace a case like the present, where there were legal impediments to the survey, that could only be removed by an adjudication on the locator’s right to have the land selected, located and surveyed.

Had it been the intention of the Legislature to have annulled locations such as these, the power to do so could not be gainsaid, because the locator’s right was but an inchoate one; but it would require express affirmative legislation to authorize the conclusion that such was the intention of the Legislature. We conclude, then, that the locations, in this case, had not been annulled, and that the Court erred in excluding them from the jury, for which error the judgment is reversed and the cause remanded. Be versed and remanded.