E. A. Hendricks v. Alexander Wilson et al., 53 Tex. 463

Gould, Associate Justice. On the 21st day of August, A. D. 1855, the county court of Denton comity issued a certificate for 640 acres of land to the administrator of Robert Russell’s estate, having adjudged him to be entitled to same as a colonist of Peters' colony. A survey was made, by virtue of that certificate, in Ellis county, within and pending the Mississippi & Pacific Railroad reservation, on the 7th day of December, A. D. 1855; the patent issued thereon on the 23d day of September, 1856, to the heirs of Robert Russell.

There was a regular and valid chain of title from the estate of said Robert Russell, deceased, down to the defendant Caldwell. Possession was taken by defendant in 1872, and improvements were made thereon of the value of $2,030. The taxes due and owing on the land were also regularly paid by defendants. The plaintiffs brought this action of trespass to try title against defendants for said land, claiming title under a location and survey made February 25, 1871.

A jury was waived and the cause was submitted to the court on the law and the evidence, the plaintiffs admitting the claim of defendants for the value of the improvements. Judgment was rendered against the plaintiffs for the land. On the part of appellants it is claimed that the Russell patent, under which Caldwell sets up title, was issued contrary to law, the land being within the limits of the Mississippi & Pacific Railroad reserve, and not subject to location at the date of either the survey or patent. Appellees reply that any objection to the validity of their patent was obviated by “

an act confirming certain patents, and to validate certain surveys in the Mississippi & Pacific Railroad reservation,” passed January 10, 1860, as follows: “ All patents heretofore issued upon surveys made by virtue of any genuine colony certificate, within the limits of the Mississippi & Pacific Railroad reservation, be and the same are hereby declared to be as valid and legal as if no such reservation had ever been made, etc.” Pasch. Dig., art. 5051. The principal question in the case is as to the meaning of the expression, “ any genuine colony certificate,” whether it includes the Russell certificate or not.

To the proper understanding of that question it is necessary to refer to “an act to ascertain what land certificates have been illegally issued by the county courts of counties in Peters’ colony, and to provide for issuing patents on such of said certificates as are legal,” passed February 4, 1858. By this act a commission was created to inspect the records of the county courts in Peters’ colony, and to ascertain by satisfactory testimony what certificates for land had been so issued by said courts to legal claimants.

Section 11 of this act reads thus: “That all land certificates issued by said county courts, since the 1st day of February, 1855, to persons as colonists of Peters’ colony, which are not approved by the board of commissioners, or declared valid by the district courts under the provisions of this act, are hereby declared null and void; and all locations and surveys made by virtue of such certificates as are not hereafter so approved or declared valid, are also declared null and void.” The Russell certificate was literally of the class required to be approved; but our opinion is, that having been merged in a patent, it was not intended to be effected by the act.

The title of the act indicates no intention to interfere with certificates already patented. Nowhere in the body of this voluminous act of thirteen sections, going largely into detail, or of the supplementary act of January 24, 1860 (Gen. Laws 8th Leg., p. 26), is there any provision for annulling or vacating patents, such as there is in regard to locations and surveys. In our opinion the manifest object of the act was not to disturb certificates which had been merged into patents, but to regulate the further issuance of patents.

If it had been intended to require the holder of patented land to withdraw from the land office a certificate which had become a part of the archives, and submit it for approval to a commission, surely that intention would have been expressed plainly, and provision made regulating the mode of withdrawal and the cancellation of the patent. At the date of the passage of this act there had been no decisions of this court that either surveys or patents within the railroad reservation were invalid or null and void. The cases of Kimmell v. Wheeler and Sherwood v. Fleming were of subsequent date.

It is not believed that the act failed to provide for patented certificates on any idea that such patents were nullities. On the contrary, it is believed that the construction which was given the act by the commission which executed it was, and its true meaning was, that patented colony certificates, whether within or without the railroad reservation, were beyond its operation. The word “genuine” could not have been used in the sense of “approved” by the board, for we have just seen that no law had been enacted making such approval the test of the genuineness of patented certificates.

Although the Russell certificate had not been approved by the commission, it was in our opinion a “genuine colony certificate ” within the meaning of the statute. It was a certificate issued under authority of law, by a competent tribunal, and whether Russell should have been awarded the certificate by that tribunal or not, it was genuine, not forged. Ho provision had been made or was subsequently made for reopening the question of whether a certificate merged into a patent was rightly granted or not.

On the contrary, the legislature ultimately affirmed titles to all lands patented by virtue of certificates to colonists issued by the county court omitting the qualifying word “genuine.” Acts of 1871, second session, p. 12. This act was passed, it is true, after the location by appellees, and could not affect their rights. It is referred to only as part of the legislative history of the subject, tending to confirm the construction we have given the statutes.

In our opinion, after the act of January 10, 1860, the Russell patent was, whatever may have been its status before, valid and legal; and it is not material to inquire whether the certificate should originally have issued to the administrator or to the heirs. The land was patented by virtue of a certificate issued by competent authority, and was not subject to location. The judgment is affirmed. Affirmed. [Opinion delivered June 15, 1880.]