Thomas Chadoin v. Richard Magee and Others, 20 Tex. 476

Wheeler, J. However the question of title, raised by the pleadings, may be determined, it seems clear that there was error in the judgment of the Court refusing to dissolve the injunction. If, as alleged, the defendant therein had never been in possession, and had no right of action by forcible entry and detainer, his having instituted the proceeding would only put the defendants therein to the necessity of making their defence, to make manifest his want of right. Their defence must have been successful.

The having instituted suit, without any cause of action, could not ultimately affect any right of theirs, and was no ground for an injunction. An injunction is never granted to stay proceedings in a suit, before judgment, merely because the plaintiff therein has no cause of action. (Story’s Eq. Ch. XXIII.) The petition not having laid a sufficient foundation for the awarding of an injunction, it follows, that the judgment of the Court perpetually enjoining the defendant from proceeding in the action, is erroneous, and must be reversed. And we might go further and dismiss the case.

But as it may be that the plaintiffs might so amend as to present a proper case for the interposition of the Court; as the defendant has endeavored to assert a superior right in himself, as between him and the plaintiffs and other parties now before the Court, and it will probably be better for all parties that the question of title brought into litigation by the pleadings should be finally determined in this suit, but it is believed the facts are not sufficiently disclosed by the record to enable the Court satisfactorily to determine finally the question of title, the case will be remanded, in order to enable the parties respectively, and the Court, more advisedly to proceed to the assertion and determination of the matters in controversy.

In respect to the question of title, it will suffice for the present to observe, that it appears by the defendant’s answer that he was admitted as a colonist in the colony of Austin and Williams, and was permitted, as we historically know the practice was, to select land already surveyed, and it only remained for the Commissioner to issue the title, when the land office was closed by the act of the consultation. The application and field-notes of the survey were returned with the archives of the colony to the General .Land Office. After the opening of the land office, in 1838, he obtained his certificate.

Having obtained his certificate, without delay, he had the right, we think, to have it applied to his survey, and the land patented to him, if he did not delay making a return of it to the land office unnecessarily and unreasonably and until the rights of other parties had intervened, although he had no order of survey. That was dispensed with by the action of the officers in admitting and recording his application, and permitting him to select land already surveyed.

If, in a properly directed endeavor to apply his certificate to his field-notes, he was misled and prevented by the mistake of the Commissioner of the General Land Office in sending the field-notes to the wrong county, without laches or fault on his part, and if as soon as he reasonably could obtain information of the mistake, he took proper steps to correct it, his right ought not to be thereby defeated. Nor could it be by the intervention of one who, with the knowledge of his right, took advantage of the mistake, for that purpose.

The difficulty in the appellant’s case arises from his apparent laches in proceeding to secure and assert his right. He appears to have had strong equities; and may still have rights, if he has not lost them by his own supineness and negligence. A full development of the facts upon another trial, may present the question in a clearer light. And for the present, therefore, as the decision will probably depend upon facts not now before us, we forbear the expression of a more definite opinion. The judgment is reversed and the cause remanded. Reversed and remanded.