Heirs of W. S. Newman v. J. L. Dallas, Guardian, 26 Tex. 642

Wheeler,. C. J. The plaintiff sought to recover the land in question by virtue of the sale by the ancestor of the defendants to the plaintiff's ancestor of the conditional certificate of the former, issued under the Act of the 4th of January, 1839, (Hart. Dig., art. 1924,) and the alleged confirmation of the sale by the vendor. But we are of opinion that the plaintiff failed to make out a case which will support the recovery. The conditional certificate was not the subject of sale by the grantee. (Hart. Dig., art. 1924; Turner v. Hart, 10 Tex. R., 438.) The purchaser could acquire no right to it under the law.

The sale passed nothing, and was consequently inoperative and void. It cannot be referred to as affording any support to the title of the purchaser. If he has acquired a title to the land it must be by reason of something done subsequently to the sale of the conditional certificate, which had the legal effect to pass the title of the grantee to the purchaser. But nothing of a character to have that effect appears by the record.

There has been nothing done by the purchaser to raise an equity in his favor as against the grantee of the certificate, nor by the latter which could have the legal effect to pass the title. The expense incurred by the plaintiff's ancestor or by the plaintiff in perfecting the title might give a claim to compensation, but nothing more. The admissions of the grantee of the certificate that he had sold could add nothing to the legal effect of the act of sale. They could not impart to it legal validity.

Possession was not taken and held under the plaintiff’s location, and there is nothing in the case to warrant the court in -holding that the title has been acquired by the plaintiff. The judgment is reversed and the cause remanded. Reversed and remanded.