Morgan P. Ellis v. James H. Batts and others, 26 Tex. 703

Moobe, J. This suit was commenced by Albert Wells in July, 1846, against Henry D. Bullard, as administrator of E. Batts, Hardy Strickland and Albert A. Kelson, the district surveyor of Nacogdoches land district, to enjoin said parties from returning to the General Land Office the field notes of a survey of six hundred and forty acres of land situated in the present county of Smith, made by virtue of the headright certificate of said Strickland for said Batts; and to establish plaintiff’s superior right to the survey, upon which, it was alleged, he then resided.

The injunction prayed for in the petition was granted, and has from that time to the present remained in force. In 1850, the defendants filed a motion asking the court to dissolve it, but this motion was overruled by the court, and during the subsequent progress of the case there has been no action with reference to it.

On the 10th of November, 1854, the plaintiff in error obtained from the State a patent for the land, by virtue of a location and file made since ■the 31st of August, 1853; and afterwards, at the Spring Term, 1855, of the District Court, filed his petition, as infcervenor, claiming the superior title to the land, against both the original' plaintiff and defendants. The field notes of the survey made for Batts had not been returned to the General Land Office previous to the issuing of the patent under which the plaintiff in error claims.

He, however, was, at the time of his location and file, advised of all the facts with reference to this suit, and knew that the land liad been previously surveyed for Batts, and that his administrator and the Surveyor had been enjoined by the court from returning to the General Land Office the field notes of the survey. Upon the trial there was a verdict and judgment against the intervonor, for the-reversal of which he prosecutes the present writ of error.

The only question that it will be necessary for us to determine, is whether Batts* title to the land, by virtue of his location and survey, were forfeited, owing to the failure to return the field notes of the survey to the General Land Office on or before the 81st of August, 1858, notwithstanding the injunction of the court forbidding it. The 1st

section of the Act of the 10th of February, 1852, requiring the return of field notes reads as follows: “ The field notes of all surveys made previous to the passage of this act shall be made out and returned in the manner now required by law to the General Land Office, on or before the thirty-first day of August, 1858, or they shall become null and void, and the said surveys shall become vacant land, and be subject to relocation and survey, as in other cases, by any persons holding a genuine land certificate or other legal evidence of claim to land.” The literal import of the statute is broad and unlimited, and if we can suppose that the legislature intended that it should be strictly and technically construed, it would annul all titles when there had been a failure to return the field notes within the time prescribed^ no matter what were the circumstances which prevented it; and any one might locate a certificate upon it.

We do not believe that such was the object and purpose of the legislature in enacting this statute. Surely they did not intend, when they say that the land shall be subject to re-location “by any person holding a genuine land certificate,” to change the law which forbids the Commissioner of the General Land Office, surveyors, &c., from locating the public domain during their terms of - office.

Yet the literal meaning of the language used would lead to that conclusion ; and it would be more reasonable to hold this than that it was the intention of the legislature to deprive a party of his land for his failure to do

an act which he was forbidden by law from doing. The injunction by the court is the act of the State by its properly constituted tribunal; it is the duty of the citizen to obey its mandate; shall it be said that the State can or will enact a forfeiture from the failure of a party to do

an act which it expressly forbids, and restrains him from performing? It is a well settled rule for the construction of statutes, that a general law will not be held to repeal a particular and special one, upon the same subject. This rule would appear to be applicable to the

section of the statute in question. • Á party is individually and personally restrained by the mandate of the court, which by law he is bound to observe. Is the general language of a law subsequently passed, commanding all persons, when there is a large class upon whom it may operate, to do the act from which he is restrained, applicable' to him? We think such a conclusion would not only work the grossest injustice in the present case, but would also violate the spirit and intention of the legislature in the passage of this law, as well as the established and settled rules for the construction of statutes.

It is unnecessary, however, to discuss the question further; the construction placed upon the law by the District Court, is the same as that given by this court, to an analogous

section of the same statute. (See Edwards v. James, 13 Tex., 52.) There is no terror in the judgment, and it is therefore affirmed- Judgment affirmed.