George W. Breckenridge v. John Neill and another; John Neill v. H. C. Fountain, 26 Tex. 101

Wheeler, C. J. The refusal of the surveyor, Fountain, to deliver to Neill the field notes, put it out of his power to return them to the Land Office within the time prescribed by law. (O. & W.

Dig., art. 1,207.) As a substitute for the originals, Neill obtained'from the district surveyor certified copies from the records of his office, which he returned to the Land Office in time, and was thus enabled to obtain his patents. (Id., 1,199.) But it is insisted that he did not comply with the statute providing for the substitution of copies for the original field notes; that the affidavit upon which he obtained the copies was not in conformity to the statute; that the originals not having been returned to the Land Office, the land became vacant, and subject to the plaintiff’s location on the 4th of March, 1856; and the patents issued to Neill are to be deemed to have been obtained contrary to law and in fraud of the plaintiff's right, and are consequently void.

The affidavit, it is true, is not a literal compliance with the statute. (O. & W. Dig., art. 1,199.) But was it not a substantial compliance ? Did it not meet the obvious purpose and object which the Legislature had in view ? That manifestly was to enable the owner of a survey, who was unable, from a cause beyond his control, to return the original field notes in time to" prevent the loss of his right, to avoid that consequence by obtaining a certified copy, which, if returned to the Land Office within the prescribed time, should supply the place of the originals.

It was not the policy, of the law to work a forfeiture of rights; but to require parties, with all reasonable diligence, to proceed to the completion and perfection of their right, and at-the same time to provide the means to enable them to avoid irreparable injury and loss from unavoidable casualties.

Hence, when the original field notes were lost or destroyed, so that they could not be returned, the law provided that, upon making affidavit of the fact, the party might obtain a certified copy of the record thereof, which should have the same effect in preserving the right of the party and enabling him to obtain his patent, as the original would have had. (Ibid.) The field notes were not “ lost,” literally, in the ordinary acceptation of the term; but were they not, so far as the power of the owner to control them was concerned, and within the purview of the statute, considering the mischief it was intended to remedy, to be deemed as lost ?

They were in the hands of the surveyor who wrongfully withheld and refused to deliver them. The refusal was wrongful, because the surveyor had no right to detain them. He had returned them to the district surveyor’s office, and had them recorded. That determined the election of the owner, Neill, and they thenceforth became his property, subject to his control.

The withdrawal of them from the surveyor’s office by Fountain, and withholding of them from Neill, as effectually prevented him from returning them to the Land Office as if they had been literally “ lost or destroyed.” He made his affidavit, stating the facts, upon which the surveyor gave him copies from the record. These he returned, with the affidavit he had made to obtain them, to the General Land Office, and they were there deemed by the commissioner to preserve his right, and he thus obtained his patents. There was no fraud practiced by Neill in obtaining them.

He simply had stated the facts, and thereupon obtained his patents. We do not think they can be held to have been procured by fraud, or issued against law. If there was not a literal, we think there was a substantial compliance with the law, and consequently that his right to the land is complete and perfect as against the plaintiff—uniting with his legal title the superior equity. There is, therefore, no error in the judgment. Nor is there error in the money judgment rendered by the court in favor of Fountain.

Neill took the benefit of the contract, availed himself of the services of Fountain, and upon every principle is bound to pay for them, as well by the terms of his contract as upon equitable principles. The judgment is in all things affirmed. Judgment affirmed.