John Jennings v. Phineas De Cordova, 20 Tex. 508

Hemphill, Ch. J. There is no doubt but that the title for the league, issued to David F. Owens on the 28th December, 1835, was absolutely void, the same having issued after the closing of the Land Office by the Act of the Consultation, and that so far as that title was concerned, the land was open to location or preemption and survey. But the survey upon which that title issued (having been made for Owens in the summer of 1835) was not avoided by the Act of Consultation, and there might be some question whether it be not still valid, and capable of being perfected into a patent.

Surveys made for colonists prior to the closing of the Land Offices, in 1835, are exempt from the provisions' of the Act of February 10th, 1852, requiring surveys to be returned to the General Land Office on or before the 31st August, 1853; at least the fourth

Section of the Act will admit of such construction. (Acts of 1852, p. 58.) And if the want of return were the only objection, the force of this survey might not be much affected. But it might be contended that Owens, for whom the survey was made, was one of the class that under the law had six months’ preference in the selection and location of their lands, and that having neglected to procure a certificate of headright from a Board of Land Commissioners, and apply it to the survey within the six months, his preference right was forfeited, and the land was afterwards open to general location and survey. (Hart.

Dig. Art. 1856.) There is much force in this view. But as the point of the validity of the survey, though suggested in the pleadings of the appellant, and in the brief of his counsel before this Court, was not noticed in the trial below, was not the subject of instructions to the jury, and none were asked in this particular by the appellant, we will decline the expression of an opinion until this point, which is of considerable importance, shall be discussed in argument or shall be further considered. A leading question in the case is with respect to the validity of the pre-emption claim of the appellant.

If it be admitted, as seems to be conceded by the parties, that from the nullity of the deed to Owens the land was vacant, it follows that, the settlement and improvement by the appellant in 1851, gave him in law a claim to pre-emption. The fact that he was holding under title derived from Owens is immaterial. As said in the case of Cravens v. Brooke, 17 Tex. 274, the only condition imposed by law to secure a pre-emption, is that of settlement and improvement on vacant land. The acts of the applicant are alone the subject of inquiry.

Was the land vacant, and has it been settled and improved ? and not what the settler thought or imagined about the title; or whether he supposed it vacant or otherwise.

Had the appellant, within eight months after his settlement, discovered his mistake as to the validity of Owens’ title and then claimed to have a survey on the land, as a pre-emptionist; his claim would have been valid against all locations made after his settlement, whether these locations were made before or after the appellant knew the land was vacant. (Ib.) And if a settler should remain silent for years, he might, at any time, no matter how long after the expiration of the eight months, claim the benefit of pre-emption, provided a location had not intervened and been so perfected as to exclude any opposing right or equity to the land.

The appellee insists that he made his location on the land in December, 1853, two years or more after the settlement by the appellant, but prior to his application for a pre-emption survey. The appellant urges that his application for pre-emption was in February, 1854, and that the appellee has not, by his proof, shown a file prior to August, 1854, and that consequently his pre-emption claim had priority in date.

We are inclined to the opinion that the proof was sufficient to establish the fact of location in December, 1853, provided such location could have been received or entered by the surveyor without possession of the certificate, for there is no proof that the certificate was on file prior to August, 1854. If the entry was not valid without the possession of the certificate—and this is certainly the policy, if not the express letter- of the law—the question would, without further difficulty, be settled in favor of the claim of the appellant, as his claim would then have priority in time.

But admitting that the location was prior to the application for pre-emption, and waiving the argument that the provision with respect to the survey of pre-emptions within eight months, is directory, and that such claim is not forfeited by failure to make the survey within the time prescribed, we will proceed to consider the effect of the Act of the 16th August, 1856, (Acts, p. 39,) which by its second

Section declares, that all pre-emptionists who failed to have their land surveyed within eight months after their settlement, shall have eight months further time to do so. This extends to all the pre-emption laws from 1845 to the last on the statute book, and gives all settlers entitled to the benefit of any of these laws, eight months more to make their survey. Ho exception is made in favor of the rights of third parties which may in the mean time have intervened, nor was it the policy of the statute to make any such exception.

The pre-emption claim is in effect recognized as a dormant equity, as one which had been a valid right to the land, but which from delay had lost its force; which was riot extinguished, but by indulgence on the part of the grantor, could be restored to pristine life and vigor; and which, as long as the Government retained the fee in the land, might be consummated into a perfect title. If in the mean time and before the passage of this Act, the land had been located, surveyed and patented by another, the pre-emptionist would have lost all claim, and the statute could afford him no relief.

But if the patent to the opposing claim had not issued prior to the statute, the original right of the pre-emptionist would be revived in all its force, and effectually preclude further action, and defeat the right under the location. (Warren v. Shuman, 5 Tex. R. 441; 11 Id. 564; 14 Id. 213; 8 Howard, 345 ; 3 Id. 55.) Under this view of the effect of the law of 1856, there can be no doubt that if the appellant had made a survey within eight months after the passage of the Act of 1856, it would have been as effectual as if made within eight months after his original settlement.

Is not the survey made for him before the statute as effectual as if it had been made within eight months after its passage? We conceive that the necessary effect and operation of the Act is to make valid all surveys of pre-emption claims, which may have been made after the lapse of eight months from the date of settlement and improvement, but which were antecedent to the day on which the eight months after the passage of the statute would expire, no matter whether made before or after the Act was passed.

The survey of appellant, though it may have been and was after the lapse of the first eight months, yet it was prior to the end of the time of extension under the statute, and was consequently as valid as if made within the first eight months, and before the location of the appellee. There certainly was no necessity nor is there any reason why the pre-emption, if surveyed by a legally authorized surveyor, should be re-surveyed after the passage of the statute.

The object of the provision was that the land should be legally surveyed, and the claimant was allowed time for that purpose; but if he in the mean time had caused the survey to be made, there would be no propriety in forcing him to the increased expense of having his lines run over the second time. We are of opinion that the survey of appellant on his pre-emption claim was (if not valid before) made valid and effectual under the Act of August, 1856, and that this being a general law of which we are bound to take notice, the judgment cannot be affirmed. It is therefore reversed, and cause remanded.

Reversed and remanded.