Milam County v. R. P. Robertson and others, 33 Tex. 366

Walker, J. This is an action to try title commenced in the district court of Johnson county, February 21th, 1864. The land sued for was patented to appellant on the tenth day of October, 1860, and was part of the school lands surveyed and appropriated by her on the twenty-third day of December, 1849. On the tenth of August, 1852, the Legislature passed

an act requiring the field notes of all surveys made prior thereto to be returned to the General Land Office by the thirty-first day of August, 1853. The appellees claim title as pre-emptors, under the act of August 26, 1856, authorizing the location and sale of the Mississippi and Pacific Railroad reserve, of which the lands in dispute are a part. The plaintiff claims title under her patent of 1860. ■ The appellees claim that appellant did not comply with the requirements of the act of February 10,1852, and therefoie was not entitled to the patent for the land.

They show that they returned their surveys when made, tendered fifty cents per acre for the land, and demanded title frem the State. It appears that the Commissioner of the General Land Office refused to accept their money, and also to issue patents. The title to the lands was in the State until the tenth day of October, 1860. Ho statute of limitation could run 'against the State.

Hor could a settler, under the act of August 26, 1856, acquire title by prescription; for three days after the passage of the act under which the defendants made their pre-emptions, the Legislature passed another act (Paschal’s Digest, Art. 3470,) which provides that no statute of limitation shall operate to give title to lands heretofore or hereafter granted for educational purposes.

And this act was, in all probability, passed to deter settlers from settling on school lands, and was in itself a sufficient notice to put them on inquiry; and at the time they made these preemptions it was their duty to know, and as a matter of fact we have no doubt they did know that the county had surveyed the-lands for school purposes, and at all events they are chargeable with notice from and- after the time when they returned their surveys and applied for patents.

The appellees and the court below also, appear to have concluded that the plaintiff, by laches in not returning her field notes on or before the thirty-first day of August, 1853, had lost her right to have the lands patented as school lands, and that their title under the pre-emption laws thereby became good. We think that if the act of February, 1852, applied at all to the surveys of school lands (which had been granted by public act of the Legislature), the State only could have taken advantage of the laches of the appellant, and it was not for third parties to take advantage of her neglect.

The county of Milam was and is a trustee, holding these lands for the use of the people, and it would not only be contrary to law, but much against public policy to allow the interests of the whole community to be prejudiced by the negligence of the trustees, when the parties seeking the advantage are chargeable with notice of the trust; and though the evidence does not positively establish actual notice, prior to their attempts to obtain the patents from the State, yet we-believe they had such notice, for the existence of the fact of four leagues of land being set off and surveyed within the limits of one county for such a purpose, must in the nature of things have been too notorious for any intelligent citizen of the county to claim ignorance of it; and the appellees are fairly chargeable with constructive notice.

There was error in the court below overruling the motion for a new trial. There, was error in the charge of the court, and there was error in the court refusing to charge as requested by plaintiffs’ counsel. There is very little dispute about the facts in the case; most of the evidence consists in the muniments of title, as derived by the parties.

The matters to he determined were mainly questions of law; and believing it whoUy unnecessary to remand the case for further proceedings, it is therefore considered by the court that the appellant do have and recover from the appellees the land described in the petition, together with all her costs in this and in the district court expended; and that a writ of restitution do issue to the sheriff of Johnson county, commanding him to place the appellant in possession of all of said lands; and that this judgment be certified below for observance. Reversed and rendered.