Davis v. Bargas

33 S.W. 548, 12 Tex. Civ. App. 59, 1895 Tex. App. LEXIS 436

• Court: Court of Appeals of Texas
• Decided: December 18, 1895
• Docket: No. 683.
• Status: Published

Opinion

FLY, Associate Justice.

This is an action instituted by appellants,, as heirs of Thos. R Nichols, to try title to one hundred and eleven, acres of land. The judge instructed the jury to return a verdict for appellees which was done and judgment rendered accordingly.

We find that the appellants are the heirs of Thos. R. Nichols; that in 1841, he transferred to R. H. Wynne his conditional headright certificate for 640 acres; that Wynne presented the certificate and transfer.to the Board of Land Commissioners of Guadalupe County and applied-for an unconditional certificate, which was granted; that it is recited, in the certificate that Nichols had regularly transferred the conditional, certificate to R. H. Wynne, and recited that the unconditional certificate was given to the heirs or legal representatives of Thos. R. Nichols. The-following indorsements appear on the back of the certified copy of the-unconditional certificate-;

“File 466 Bexar 2nd Class Hncondl. Certificate Thomas R. Nichols, Deed.

640 acres.

Filed May 16th, 1853.

File 466.

Bexar 2nd Class Hncondl. Cert. 640 acres.

Thomas R. Nichols, deed.

Filed April 26, 1853.

Dr Wyne 640 to Enter on record Book C back of his entries on Cíbolo N. E. and. adjoin surs. 11 & 12 on East side of Cíbolo, made for Peter Magber & Geo. Davis, 9 July, each to join at S. E. corner of No. 11.

Registered Carleton.

R. H. Wynne, Ass’ee of T. R. Nichols,

Land Cert. 640 H. R.” '

The patent was issued to the heirs of Thos. R. Nichols, deceased, their heirs or assigns. The title of Wynne has been by regular transfers vested in appellees, and they and their vendors have been in possession of the land and have paid taxes thereon for twenty-five years. Appellants set up no claim to the land until this suit was instituted in 1892. The appellants are married women, joined by their husbands.

The Board of Land Commissioners, composed under the act of Jan. 16, 1843, of the chief justice and associate justices of Guadalupe County, in 1847 issued the following certificate:

“640 acres.

The State of Texas, Guadalupe County.

2d Class No. 8.

This is to certify that Robert H. Wynne presented to the Hon. the County Court of Guadalupe County the conditional headright certificate of Thos. R. Nichols, being second Class No. 29, issued by the Board of Land Commissioners of Gonzales County, and dated 18th day of October, 1838; and James M. Day and John W. Nichols, after having been duly sworn, say that the said Thos. R. Nichols arrived in the late Republic of Texas in September, 1837, and continued to reside therein as a citizen for more than three years, and until his death in the year 1843. And the said Wynne having presented a regular transfer from said Thos. R. Nichols, under date 9th of April, 1841, consequently this unconditional certificate is issued to the heirs or legal representatives of Thos. R. Nichols for six hundred and forty acres of land.” This was signed by each of the commissioners and attested by the clerk.

We are of the opinion that the board had the authority under the law to adjudicate the question of a transfer of the conditional certificate, and determine to whom it belonged, and to grant an unconditional certificate to .the holder of the conditional one. Acts of 1837; Sayles’ Early Laws, art. 398, pp. 262-263. This seems to be conceded by all parties. Having this authority when the transfer made by Nichols to Wynne was placed before the land board, and they determined that it was regular, the existence of a regular transfer was as well established as though the transfer itself had been produced. The certificate" being the property of Wynne, he held the equitable title to the land, although it was issued to the heirs and legal representatives of Thos. R. Nichols, and when the patent was issued, it inured to the benefit of Wynne. The certificate should have been issued to Wynne, as assignee, and the language of the conditional certificate of the Board of Land Commissioners indicates that it was the intention to issue it to him. The conclusion of the certificate is an impotent one, and a complete non" sequitur, if this was not the intention. There is no attempt made to show that there was no transfer of the conditional certificate to Wynne by Nichols, but on the' other hand the acts of Wynne in presenting and claiming the certificate, would seem to have the stamp of good faith put upon them by the fact that the proof necessary to enable him to obtain an unconditional certificate was furnished by the brother and brother-in-law of Thos. B, Nichols. We are of the opinion that this case is similar to those in which transfers of certificates were produced, which were given prior to the issuance of patents to original owners or their heirs or legal representatives, and wherein it is held that the patent inured to the benefit of those to whom the certificates were transferred. Burkett v. Scarborough, 59 Texas, 495; Satterwhite v. Rosser, 61 Texas, 166; Adams v. House, 61 Texas, 639; Neal v. Bartleson, 65 Texas, 478.

It is urged by appellants that the recital as to the transfer from Nichols to Wynne should not have been introduced in evidence, no predicate having been laid for the introduction of secondary evidence. The evidence was not objected to by appellants, and they are in no position to complain of its introduction. There was no attempt made to contradict the recital in the certificate that Wynne was the assignee of Thos. B. Nichols. The recital in the certificate is conclusive of the facts of the transfer.

To support a constable’s deed, one of the links in their title, appellees introduced in evidence a judgment of a justice of the peace, together with certified copies of the citation and return, an affidavit, bond and writ of attachment and sherifi’s return, showing a levy on the unconditional certificate in question. The suit was instituted and the attachment sued out in a suit of Ann M. Veatch v. R. H. Wynne. In the constable’s deed made by authority of the judgment, the certificate was described as .“a certain headlight” certificate calling for 640 acres of land, class 2, No. 8, issued by the Board of Land Commissioners of Guadalupe County to Robert H. Wynne. The certificate is identified by class and number, and by having been issued by the Board of Land Commissioners, and the variance in stating that it was issued to Wynne, assignee, instead of the heirs or legal representatives of Thos. B. Nichols, would not vitiate the deed. The same may be said of the error in the description in the return of the constable on the writ of attachment.

The following are the recitals from the docket of the justice of the peace:

The entry is informal and defective, but from the time of the organization of our Supreme Court at least up to the passage of article I618, Revised Statutes, it has been customary to extend great liberality and indulgence to judgments of justices of the peace. The test of their validity is their intelligibility. Clay v. Clay, 7 Texas, 251; Wahrenberger v. Horan, 18 Texas, 57; Roberts v. Connellee, 71 Texas, 11; Davis v. Rankin, 50 Texas, 279; Williams v. Ball, 52 Texas, 603.

Delivered December 18, 1895.

We are of the opinion that the judgment was valid and sufficient. It was not necessary that the attachment lien should be foreclosed. Voigt v. Dorsey, 85 Texas, 90.

The judgment should be and is affirmed.

Affirmed.