Foster Johnson v. John Eldridge, 49 Tex. 507

Moore, Associate Justice. The land which is the subject-matter of this suit is a part of a survey of 13,366,038 square varas, made on the 1st of September, 1859, by virtue of a certificate for one league and labor of land granted by the District Court of Brazoria county, on the 8th of October, 1857, to D. C. Barrett, the field-notes of which were returned to and filed in the General Land Office on October 11,1859. The certificate itself, however, was not returned to said office until some time in the year 1874.

On the 8th of April, 1869, Albert Eldridge, appellee’s vendor, made a location and survey of the land by virtue of a certificate for six hundred and forty acres of land, number 30,508, issued to the Texas and Hew Orleans Railroad Company. The field-notes of survey number 1, thus made, together with said certificate, were also filed in the General Land Office on April 1, 1870; the field-notes of survey number 2, which the holder of the certificate was required by law to have made for the State, having been filed in said office June 8,1869.

In March, 1873, appellee— to whom certificate number 30,508, and the right, title, and interest in the land to which he was or might be entitled by its location and survey as aforesaid having been conveyed by said Albert Eldridge—withdrew said certificate from the General Land Office, for the purpose of having it relocated upon the land appropriated, as he insists, by the former survey; this action being necessitated, as he alleges, by reason of the construction given by the Commissioner to the several statutes regulating the location "and survey of certificates and their return to the General Land Office,—to the effect that the land in question was not subject to location and survey on said certificate number 30,508, in 1869, because of its previous survey under the certificate granted to Barrett; that notwithstanding the failure of the owner of said certificate to have the same returned to the General Land Office before that date, said survey made by virtue of this certificate was a valid and subsisting appropriation of said land until the 29th day of July, 187-2; and that no right or interest in said land was or could be acquired by a survey of it prior to its forfeiture at that day.

Having, on account of this ruling of the Commissioner, and solely, as he insists, for the purpose of having it relocated and surveyed upon the same land, in order to perfect his title and obtain a patent, withdrawn said certificate, appellee caused the land to be resurveyed May 10, 1873, and the field-notes and certificate to be again returned to and filed in the General Land Office June 6, 1873.

Before this last survey, however, appellant claims to have gone into possession and actual occupancy of that part of it in controversy in this suit, as a preemption settler, under the provisions of the act to regulate the disposal of the public lands of the State, approved August 12, 1870; and on the 6th of August, 1873, he caused the 160 acres'claimed by him to be surveyed by virtue of his said preemption claim; and on the 21st of the same month the field-notes of said survey were returned to and filed in the General Land Office.

Appellant also, as he alleges, without in any way abandoning his right to the land, as a preemption settler, on the 11th of April, 1874, caused said land to be surveyed for him by virtue of certificate number 19,233, granted by the State to McKinney & Williams. Said last certificate, together with the field-notes of said survey, having been returned to the General Land Office, a patent thereon was duly and regularly issued to appellee June 23, 1874.

It will be seen from this statement of the nature and origin of their respective claims, that appellee w7as not entitled to a judgment against appellant, who, unquestionably, has the apparent legal title, unless he has shown that he has a prior and. superior equitable right to it. Unquestionably, it is a familiar and well-established - rule in the courts of this State, that a prior, valid, and subsisting location and survey will prevail over a subsequent location and patent.

But certainly the patent carries with it, at least, a prima-facie right to the land thereby granted by the State to the patentee; and to rebut this presumption, it devolves upon the adverse claimant to clearly establish a prior or superior equitable right; for if both parties have equities, unless there is a decided preponderance between them, the legal title must turn the scale, talcing for granted that it was not obtained through fraud or against equity.

Let us see, then, whether appellee’s supposed prior and better equitable right to the land warrants his recovery of it from appellant, notwithstanding his patent. Counsel for appellee claim, and the court below seems to have agreed with him in this view of the case, that appellee acquired, and still has, an equitable title to the land by virtue of the survey in 1869, which should prevail over appellant’s preemption claim and patent. This proposition is maintained upon two grounds: First.

That the Barrett survey had been forfeited before the location and survey for Eldridge, appellee’s vendor, in 1869, by the failure of the owner of the Barrett certificate to return it, with the field-notes of the survey, to the General Land Office, and that by reason thereof the land became vacant, and was, long before that sale, subject to relocation and appropriation by any one holding a valid certificate. Second.

Though the Barrett survey was not forfeited by the failure to return the certificate with the field-notes to the General Land Office, and though said survey continued to operate as a valid and subsisting appropriation of the land covered by it until the 29th of July, 1872, yet as the failure to return said certificate, as required by the act of ¡November 29,1871, unquestionably worked a forfeiture of it at that time, (as the location and survey in 1869 claimed by appellee was not absolutely void, but merely relatively so, as against the Barrett survey and those claiming under or in virtue of it,) the Eldridge survey should be regarded, as against all other parties, as a valid appropriation of the land from its date; that after the forfeiture on July 29, 1872, of the Barrett survey, there was no longer any valid or legal objection why a patent should not have been granted upon the survey made in 1869 by virtue of the certificate claimed by appellee.

But if we were to concede that both of these propositions are correct, (as tó which we need at present express no opinion,) we cannot agree that the conclusion sought to be drawn is a necessary or correct deduction from the predicate.

Grant that appellee may have been entitled to a patent for the land by virtue of his survey in 1869, on the forfeiture of the Barrett survey, July 29,1872, or even at an earlier date, if such is the fact, and that the contrary conclusion of the Commissioner is altogether erroneous, still this does not change the legal effect of appellee’s withdrawal of the certificate from the General Land Office.

It is the clear intendment of the act of November 29, 1871, to which reference has been previously made, that no certificate which had been theretofore returned- to said office, should be withdrawn from the office, unless it had not been fully located, without an abandonment of the location and survey previously made upon it. (Paschal’s Dig., arts. 7095, 7096,7097.) The opinion of the Commissioner or the owner, or their purpose and intention in the withdrawal of the certificate, cannot alter or affect the result which the statute declares shall follow from the fact of its withdrawal.

If appellee’s survey was prior to his withdrawal of the certificate, a valid appropriation of the land covered by it could only continue while he suffered it to remain in the office.

He chose, however, to accept or acquiesce in the construction given to the law by the Commissioner, which was, in effect, that he had acquired no equitable title in the land by this survey, to be lost or abandoned by his withdrawal of the certificate for relocation upon this or any other land; and if he wished to appropriate this particular land, it was absolutely essential for him to have it located before some one else should do so.

When, therefore, appellee withdrew the certificate, he elected to take his chance to secure the land by locating it before any one else should do so, rather than to risk holding it under the survey and certificate already in the General Land Office against any one who might attempt another location of it. Having made his election, he must stand the hazard of his choice.

Appellant selected, located, and was occupying the land as a preemption settler previous to its resurvey for appellee, on the 10th of May, 1873, and had it surveyed and the field-notes returned to the General Land Office within the time required by law. . Had he gone on and obtained his patent as a preemption settler, unquestionably he would have had not only the legal title, but the older and superior equitable right.

Did he lose the equitable right acquired by his previous selection and occupancy of the land as a preemption settler, by Ms subsequently locating a certificate upon it, and having it patented thereby at an earlier‘day than he would have been entitled to a patent on his preemption claim ? Though not without difficulty, and with some hesitation as to the correctness of the conclusion at which we have arrived, we are of the opinion that he did not.

We are led to this conclusion, somewhat at least, from the fact that the actual settler and occupant of the soil has always been regarded with peculiar favor, both by the Legislature and the courts. Statutes giving preemptions, and laws for the protection of actual occupants, have always been construed most liberally in favor of such preémptors and occupants. Every intendment which could be reasonably made has been generally indulged for their protection against parties seeking to oust or dispossess them, especially where such occupancy or possession has been acquired and held in good faith.

In view of the uniform current of previous decisions of the court on this and kindred questions, we do not think wTe should, merely because we cannot-in all instances appreciate the force of the reasons -given in their support, or may doubt whether in all cases the conclusions reached have been the result of strictly logical deductions from sound principies, overturn what seems to have been heretofore regarded as the settled policy of the law, or make a radical departure from the well-recognized general course of the previous decisions of the court.

It may be also noted, that the Commissioner of the General Land Office testifies that it is customary to allow a preemptor, when he desires it, to apply a certificate to his preemption claim, when to do so works no injury or wrong to other parties. It is not seen that a mere change in the certificate upon which a patent is asked can injuriously affect third parties, provided the one first located is valid.

Eor do we see that the fact of the preemptor’s willingness to furnish the government with a certificate, instead of his getting his patent without doing so, is a matter of which a party who has wrongfully filed upon the land, after its selection, location, and occupancy by the preemptor, can justly complain; or that this fact should give his survey—made after the appropriation of the land by the preemptor—such superiority as to overcome the legal title which the preemptor has been permitted, under the recognized and established rules which are observed and followed in the General Land Office, to receive for the land which he has previously settled and occupied for a homestead; and which the bounty of the government authorized him to designate and select from any part of the public domain to which the rights of other parties had not attached previous to his occupancy of it.

While, as has been previously said, the mere opinion or conclusion of the Commissioner as to the result of a particular act will not relieve a party from the consequence of such act, when plainly declared by law, still it is not to be denied that rules which are prescribed by him, and by which claimants are guided in getting patents, in the absence of direct statutory regulations, are entitled to the highest consideration,—if, indeed, they are not to have conclusive effect.

We think it cannot be denied that appellant’s equitable title is not inferior to appellee’s; and with the legal title vested in him by the patent, the scale, if otherwise balanced, must turn in his favor. The judgment is reversed and the cause remanded. Reversed and remanded.