Margaret J. Johnson et al. v. N. Warren Newman et al., 43 Tex. 628

Moore, Associate Justice. This is an action of trespass to try title, brought by appellants against appellees October 13, 1870, in the District Court of Henderson county, for the recovery of a league and labor of land, patented December 11, 1847, to Thomas S. Mitchell, by virtue of a certificate issued to him by the Board of Land Commissioners of Houston county on the first day of March, 1838. In support of their title to the land described in this patent' appellants rely upon a-contract executed in the presence of B. C.

Franklin, district judge and ex officio notary public, (as he is styled in the instrument,) in the town of Quintana, September 2,1836,'between Thomas S. Mitchell and William H. Jack, whereby said Mitchell, in consideration of three hundred dollars therein acknowledged to have been paid him, “ sells and conveys to said Jack all his right, title, and claim ” to a league and labor of land, which, as a married man, he says he is lawfully entitled to receive from the Government. The right and interest acquired by Jack by this contract he assigned and conveyed December 10th, 1837, to F. A. Sawyer.

And on the 5th of May, 1847, said Sawyer conveyed to Stephen Crosby, the ancestor of appellants, by quit-claim deed, “ said league and labor of land to which said Thomas S. Mitchell, as a citizen of Texas, and to which I am entitled by virtue of my purchase from said William H. Jack.” But no reference is made in the deed to the locality of the land, nor to the fact that a certificate had been issued to said Mitchell which long previously had been located, surveyed, and patented.

On the part of appellees, it is shown that on the 1st of March, 1838, a certificate for a league and labor of land was issued by the Board of Land Commissioners of Houston county to Thomas S. Mitchell, which he on the same day conveyed by a written transfer upon said certificate to John H. Kirchoffer, the ancestor of some of the appellees, and party under whom the others claim. Said certificate was at the same time delivered to said Kirchoffer, and on the 16th of. March, 1838, he procured the land in controversy to be located and surveyed under it, for which he paid $100.

He also paid the Government dues upon it, and caused the certificate and field-notes to be returned to the General Land Office. On the 21st of the same month Mitchell also executed and delivered to said Kirchoffer an instrument in writing, which says that, “ in consideration of the sum of $1,200 to be secured to be paid, do appoint JohnH.

Kirchoffer, of this” (Houston) “county, my true and lawful attorney to obtain the field-notes to made in surveying a league and labor of land to which I, as a married citizen of Texas, am entitled, and to obtain a title for the same from the proper authorities, and do hereby authorize the said John H. Kirchoffer to sell or convey, and a warrantee title to make to any person,” &c. And in a subsequent portion of said instrument he binds himself in the sum of ten thousand dollars to make said Kirchoffer, on demand, a good and lawful title, &c.

And on the — day of March, 1838, said Mitchell also executed to said Kirchoffer a warrantee deed for said land, describing it as follows, to wit: “All my right, title, and interest in and to a league and labor of land situated in Nacogdoches county, on or near Cedar creek, on the east side of the Trinity, designated as--, and do bind myself,” &e. The land is described in the patent thus: “In Nacogdoches county, on Cedar creek, 5,600 varas east and 10,000 varas north of where the county lines of Nacogdoches and Houston intersect the Trinity river, beginning,” &c.

Then follows the specific metes and boundaries as given in the notes of the surveyor from his field-book of the survey. There was also evidence on the part of appellees of payment of taxes, and acts of ownership and partial possession at least, if not continuous, for the last eighteen or twenty years.

We have thus contrasted the evidence upon which the parties respectively rely to support their claims to the land in dispute, because we think to do so, is sufficient to show that appellants totally failed to establish title on any ground upon which the court should have decreed title to them, even if the pleading in this case would warrant such a judgment. If it is conceded that the Thomas S. Mitchell who sold the right to a league and labor of land guaranteed to him by the constitution of the republic of Texas to Jack at Quintana in September, 1836, is the same Thomas S.

Mitchell who was proved to have been a citizen of Houston county in the years 1837 and 1838, to whom the certificate was issued, by which the land in controversy was obtained, of which there is no proof but the identity of the names, it cannot be seriously insisted, in the light of the former decisions of this court in cases of like character, that the evidence upon which appellants rely is sufficient to enable them to maintain their action against parties in possession, and certainly having equal equities with themselves, laying out of view all consideration of their legal title.

The whole theory of appellant’s case seems to rest upon the erroneous supposition that they themselves hold the legal title to the land, or if not, that the legal title is still in Mitchell, and that they certainly have the older, and therefore superior, equitable title to it. In neither of these propositions can we agree with them. Whether appellants have any title or right which they can now assert to this land depends upon the proper construction of the contract between Mitchell and Jack, and the effect to be given it against parties who have dealt with the former in ignorance of this contract.

Though at the date of this contract Mitchell had neither a title to the land in controversy nor to the certificate under which it has been acquired, still there was, undoubtedly, guaranteed to him by the constitution the right to this amount of land on his complying with the requirements to be prescribed by law. This right, though neither real nor personal property in esse, was nevertheless an inchoate right to get that quantity of land out of some part of the public domain at the time, and in the manner to be after-wards provided and determined by the Government.

It was a right or interest of such character as to be the subject of a contract. (Emmons v. Oldham, 12 Tex., 26; Graham v. Henry, 17 Tex., 167; Babb v. Carroll, 21 Tex., 769; Andrews v. Smithwick, 24 Tex., 488.) And Jack by this contract was entitled to have applied to the Board of Land Commissioners of the proper county, and on proof of the facts required by law to have had the certificate of said Mitchell issued to him as his assignee, or if issued in Mitchell’s name, to have had it delivered to him.

And in either event he would have been secured against a valid transfer of it by Mitchell. (See 10 G-en’1 Provisions, Constitution of Republic and Land Law, December 14, 1837.) As the certificate when issued was not land, but a mere right to acquire land which could be sold and transferred as a chattel, it was not real, but of the nature and character of personalty. (Randon v. Barton, 4 Tex., 289.) It follows, therefore, that the contract between Mitchell and Jack was valid and binding between themselves, and might be enforced against subsequent purchasers with notice.

But still this could not be done against one who bought and received the certificate in good faith without notice of the contract. (Walters v. Jewett, 28 Tex., 200; Baggett v. McKenzie, Id., 582; Wethered v.

Boon, 17 Tex., 146.) This principle is also fully recognized in the cases previously cited to establish the validity of the contract between the parties, and is indeed in accord with well established elementary rules touching the sale of personal property without actual or constructive delivery. (1 Parsons on Con., 441; White’s Reep., vol. 1, p. 341, ei seq.) The certificate issued to Mitchell, and there is not the slightest evidence from which it can be inferred that Kirchoffer had ever heard of Jack’s contract, and though it be admitted that Mitchell acted in bad faith in not having the certificate issued to Jack as his assignee, or in selling it when issued to himself, still, as the title, as well as possession, was in him, his transfer and delivery of it vested in Kirchoffer the title, or legal title, if such a distinction could be recognized in respect to property of this kind, while appellants and those under whom they.claim had only a contract or right of action for it.

Certainly had they sought to divest this title out of Kirchoffer before the certificate was located, the burden would have been on them to have shown the defect in his title. Otherwise, he, having like equities with them, and also possession and title, would have stood upon the vantage ground. (See 2 White & Tudor, Lead. Cas. Eq., 88, and cases previously cited.) Certainly his position is not worse by procuring and paying for the locating and surveying of the land, paying the Government dues upon it, and getting a formal deed.

Surely the fact that the deed for the land was made before the date of the patent does not change the position of the parties, and notwithstanding Kirchoffer’s additional equities, to which we have just referred, give appellants the superior equity when before theirs was the weaker. This seems to be the result in effect of the proposition for which appellants contend. For, say they, until the patent issued the legal title was in the Government, and when the Government parted with it, it inured by operation of law to them by reason of the contract between Mitchell and Jack, or it is still in Mitchell.

And in either event they contend they are entitled to a judgment against appellees, because as they have only an equitable right they are not entitled to protection under the doctrine of innocent purchasers without notice; for this doctrine, they insist, applies only to parties who have purchased the legal title.

That this is the general formula in which this rule is announced, and that ordinarily this doctrine, by which in a court of equity the elder legal title will be set aside for the benefit of the younger one, is not applicable to cases depending upon purely equitable considerations will not be controverted. (2 White & Tudor Lead. Cas. Eq., p. 39, etseq., and cases there cited.) Though this rule seems not to be without exception, for the like protection is afforded to equitable titles to which the registration laws are applicable. (Flagg v.

Mann, 2 Sum., 551.) That it is not applicable between equities is also evident from the fact that in such cases the court will decide according to the very equity of the case, and no precise formula can be prescribed by which, as between purely equitable titles, this can be ordinarily ascertained. It cannot be properly said, however, that appellees only had an equitable title. Kirchoffer had a warrantee deed from Mitchell, and when the patent issued the legal title passed to him by estoppel.

It is also insisted that appellees’ defense failed because they did not prove payment of the purchase-money for the land except by the recitals in the deed to Kirchoffer. But the authorities to which we are referred, show that while it is necessary to prove the payment of a valuable consideration, it is not necessary to prove that the amount paid was a full and adequate consideration. Payment of the government dues and for the location and survey of the land was shown. But it was not incumbent upon appellees to prove payment of the purchase-money.

This is undoubtedly necessary to enable the junior purchaser to protection himself against the superior legal title, but it is otherwise when the plaintiff has to show himself entitled to equitable relief against the apparently better right of the defendant. In such cases it devolves upon the plaintiff to show the defect or want of equity in the title he attacks. But there is another ground upon which it is equally evident that appellants cannot now be relieved, though it might have been otherwise if they, or those under whom they claim, had moved in the matter at an earlier day.

There was a breach and repudiation of his contract by Mitchell when he procured the certificate in his own name and sold it to Kirchoffer. This action was commenced more than thirty-four years after the date of the contract, which it in effect seeks to enforce, and more than thirty-two years after its repudiation by obtaining and dealing with the certificate in direct violation of its stipulations, and near twenty-eight years after notice might have been had of these facts by reason of the issuance of the patent.

Bo diligence whatever was ever used by Jack, or those claiming under him, to secure or enforce their alleged right to the certificate, nor is any excuse made for their failure to do so. Bor does it appear that even a claim was ever set up to this particular land by any of them prior to the institution of the present suit.

Under these circumstances there can be no hesitancy in saying that the prosecution of this suit at this late day is the assertion of a stale demand, even though we could say, which, however, we do not feel called upon to do, that the evidence would not warrant the verdict of the jury on the plea of the statute of limitations, especially since motions for new trials, because the verdict is contrary to or against the evidence are addressed mainly to the equitable consideration of the court. There being no error in the judgment of which appellants can complain, it is affirmed. Affirmed.