BBOWH, Associate Justice.
The Court of Civil Appeals, Third Supreme Judicial District, certified to this court the following statement and questions:
“Statement.—This suit was originally brought September 3, 1891, in the District Court of Lipscomb County, by the State of Texas, acting by her Attorney General, C. A. Culberson, against the Houston & Texas Central By. Co. and Frederick P. Olcott, to recover 170,880 acres of land. The action, as originally brought, was in form of trespass to try title. FTovember 27, 1891, the appellants, having been duly served, filed- general demurrer and plea of not guilty.
“There was a regular term of the District Court of Lipscomb County in November, 1891, and regular terms in June and November, 1892. November 30, 1892, the case was transferred to the Travis County District Court by agreement of parties, the agreement stipulating that no effect should be given thereto as to any right of defendants to remove the cause to the federal court. The cause was tried in District Court of Travis County and judgment rendered for plaintiffs for the land, and defendants appealed. May 3, 1892, the State filed an abstract of its title, claiming to own the land.
1. By the declaration of the people of Texas, November 7, 1835, and March 2, 1836.
2. The Constitution of the Republic of Texas, the several constitutions of the State of Texas and the statute laws thereof.
3. The articles of annexation dated March 1 and June 23, 1845; the ordinance of the convention dated July 4,1845, arid the resolution of the D. S. Congress of December 29, 1848.
4. The fact that the title of the State to said land has never been diverted either or by lawful means. This, abstract of title was amended May 23, 1892, claiming that the Houston and Texas Central Railway Co. had failed to alienate the lands sued for, granted by the State, in the time required by the Constitution and laws granting the lands, whereby they were forfeited to the State.
“November 29, 1892, defendants filed in the District Court of Lipscomb County an amended answer, in substance: That Charles Dillingham, at the time suit was brought, was receiver of the railway company by appointment of the United States Court for the Fifth and Eastern District of Texas, setting out the orders so constituting him receiver, and that as such receiver he was in possession of the lands sued for, was authorized by the court to defend all suits in the name of the company; and for plea to the jurisdiction say that at the time, before suit and now, the Houston & Texas Railway Co., its lands, franchises and properties were, and are, in possession of the said Circuit Court, through its receiver, wherefore it is claimed in the plea “that the said Circuit Court has exclusive jurisdiction of the present cause; that this suit was filed without leave of said Circuit Court, and that therefore this court is without jurisdiction in the premises.” This answer is simply signed by attorney for defendants. In the same paper filed the answer sets up the same matter showing the appointment of one Dillingham as receiver of the properties of the II. & T. C. Ry. Co. by the United States Circuit Court prior to the institution of this suit, and is now such receiver, as shown in the plea to the jurisdiction, having full power to defend all suits in respect to the property of the H. & T. C. Ry. until the same is turned over to the purchaser thereof; that the property is still in his hands as receiver and he has not been relieved of his trust; that Dillingham is a necessary party to the suit, which they plead and ask judgment of the court. This part of the answer asking that the receiver be made a party is signed by attorney for defendants and sworn to by him.
“The certificate and patents for the land in suit were issued to the railroad company for sidings and turn-outs—not for the construction of the main line of the railroad—to-wit.: 17 miles and 4349 feet of sidings, or 3 miles and 1694 feet, north of the town of McKinney. The State claimed, by amendment filed in the District Court of Travis County on the 3d day of January, 1893, in addition to the ordinary action of trespass to try title, that there was no law in force in Texas authorizing the issuance of the certificates and patents for the land for sidings and turnouts, and that they were issued without authority of law, and in violation of the Constitution of the State then in force.
“The prayer asked a cancellation of the certificates and patents. Other matters were set up that need not be noted in this proceeding. The-rights of the parties depend upon the construction and application of the general laws of the State regulating the grant of land to railway companies, the Constitution and special laws as to the defendant railway company and its predecessor, the Galveston & Bed Biver Bailway Company.
“The proof shows, and the court below proved (found), the facts to be, that receiver was appointed as alleged, and that the lands in suit are still in possession of the receiver Dillingham; that the lands had been sold under orders of the Circuit Court of the United States to defendant Olcott, the report of sale having been duly confirmed by the court the 8th of January, 1889, and a deed made to the purchaser in 1889, which had been recorded in the counties where the land was situated, the deed reciting that the terms of the sale had been complied with by Olcott; but that one Cory had brought an independent suit to set aside the sale to Olcott, which was decided against him, Cory, the Circuit Court refusing to set aside the order confirming the sale, from which an appeal was taken, which appeal is now pending; and that by an order of the said court said property, embracing the property in controversy in this suit, is still held by the receiver pending said appeal.” The court also found,, and it is true, “that there never has been any actual possession by anyone of the lands in controversy, they being open, unimproved lands.” The court below also found, and it is true, that this suit was brought by direction of the Governor of the State.” From the foregoing facts the court below concluded as law, “That this suit having been brought by direction of the Governor for the sole purpose of determining the question of title to the lands in controversy between the State of Texas and the defendants, the Houston & Texas Central Bailway Co. and F. P. Olcott, the same may be maintained for said purpose, notwithstanding the facts that the said railway company and lands in controversy are still in custody of a receiver appointed by the federal court and that this suit is brought without permission of the federal court.” Judgment was rendered for the State on the 18th day of March, 1893, overruling the plea to the-jurisdiction, as well as the plea that there is a want of necessary parties, adjudging that the State have and recover from the defendants the land sued for, cancelling the certificates and patents, all at the costs of de
fendants, awarding execution for such costs, hut failing to award any writ of possession to plaintiffs. There is no statement of facts in the case, therefore the facts found by the court below are taken to be true.
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BBOWH, Associate Justice.
The Court of Civil Appeals, Third Supreme Judicial District, certified to this court the following statement and questions:
“Statement.—This suit was originally brought September 3, 1891, in the District Court of Lipscomb County, by the State of Texas, acting by her Attorney General, C. A. Culberson, against the Houston & Texas Central By. Co. and Frederick P. Olcott, to recover 170,880 acres of land. The action, as originally brought, was in form of trespass to try title. FTovember 27, 1891, the appellants, having been duly served, filed- general demurrer and plea of not guilty.
“There was a regular term of the District Court of Lipscomb County in November, 1891, and regular terms in June and November, 1892. November 30, 1892, the case was transferred to the Travis County District Court by agreement of parties, the agreement stipulating that no effect should be given thereto as to any right of defendants to remove the cause to the federal court. The cause was tried in District Court of Travis County and judgment rendered for plaintiffs for the land, and defendants appealed. May 3, 1892, the State filed an abstract of its title, claiming to own the land.
1. By the declaration of the people of Texas, November 7, 1835, and March 2, 1836.
2. The Constitution of the Republic of Texas, the several constitutions of the State of Texas and the statute laws thereof.
3. The articles of annexation dated March 1 and June 23, 1845; the ordinance of the convention dated July 4,1845, arid the resolution of the D. S. Congress of December 29, 1848.
4. The fact that the title of the State to said land has never been diverted either or by lawful means. This, abstract of title was amended May 23, 1892, claiming that the Houston and Texas Central Railway Co. had failed to alienate the lands sued for, granted by the State, in the time required by the Constitution and laws granting the lands, whereby they were forfeited to the State.
“November 29, 1892, defendants filed in the District Court of Lipscomb County an amended answer, in substance: That Charles Dillingham, at the time suit was brought, was receiver of the railway company by appointment of the United States Court for the Fifth and Eastern District of Texas, setting out the orders so constituting him receiver, and that as such receiver he was in possession of the lands sued for, was authorized by the court to defend all suits in the name of the company; and for plea to the jurisdiction say that at the time, before suit and now, the Houston & Texas Railway Co., its lands, franchises and properties were, and are, in possession of the said Circuit Court, through its receiver, wherefore it is claimed in the plea “that the said Circuit Court has exclusive jurisdiction of the present cause; that this suit was filed without leave of said Circuit Court, and that therefore this court is without jurisdiction in the premises.” This answer is simply signed by attorney for defendants. In the same paper filed the answer sets up the same matter showing the appointment of one Dillingham as receiver of the properties of the II. & T. C. Ry. Co. by the United States Circuit Court prior to the institution of this suit, and is now such receiver, as shown in the plea to the jurisdiction, having full power to defend all suits in respect to the property of the H. & T. C. Ry. until the same is turned over to the purchaser thereof; that the property is still in his hands as receiver and he has not been relieved of his trust; that Dillingham is a necessary party to the suit, which they plead and ask judgment of the court. This part of the answer asking that the receiver be made a party is signed by attorney for defendants and sworn to by him.
“The certificate and patents for the land in suit were issued to the railroad company for sidings and turn-outs—not for the construction of the main line of the railroad—to-wit.: 17 miles and 4349 feet of sidings, or 3 miles and 1694 feet, north of the town of McKinney. The State claimed, by amendment filed in the District Court of Travis County on the 3d day of January, 1893, in addition to the ordinary action of trespass to try title, that there was no law in force in Texas authorizing the issuance of the certificates and patents for the land for sidings and turnouts, and that they were issued without authority of law, and in violation of the Constitution of the State then in force.
“The prayer asked a cancellation of the certificates and patents. Other matters were set up that need not be noted in this proceeding. The-rights of the parties depend upon the construction and application of the general laws of the State regulating the grant of land to railway companies, the Constitution and special laws as to the defendant railway company and its predecessor, the Galveston & Bed Biver Bailway Company.
“The proof shows, and the court below proved (found), the facts to be, that receiver was appointed as alleged, and that the lands in suit are still in possession of the receiver Dillingham; that the lands had been sold under orders of the Circuit Court of the United States to defendant Olcott, the report of sale having been duly confirmed by the court the 8th of January, 1889, and a deed made to the purchaser in 1889, which had been recorded in the counties where the land was situated, the deed reciting that the terms of the sale had been complied with by Olcott; but that one Cory had brought an independent suit to set aside the sale to Olcott, which was decided against him, Cory, the Circuit Court refusing to set aside the order confirming the sale, from which an appeal was taken, which appeal is now pending; and that by an order of the said court said property, embracing the property in controversy in this suit, is still held by the receiver pending said appeal.” The court also found,, and it is true, “that there never has been any actual possession by anyone of the lands in controversy, they being open, unimproved lands.” The court below also found, and it is true, that this suit was brought by direction of the Governor of the State.” From the foregoing facts the court below concluded as law, “That this suit having been brought by direction of the Governor for the sole purpose of determining the question of title to the lands in controversy between the State of Texas and the defendants, the Houston & Texas Central Bailway Co. and F. P. Olcott, the same may be maintained for said purpose, notwithstanding the facts that the said railway company and lands in controversy are still in custody of a receiver appointed by the federal court and that this suit is brought without permission of the federal court.” Judgment was rendered for the State on the 18th day of March, 1893, overruling the plea to the-jurisdiction, as well as the plea that there is a want of necessary parties, adjudging that the State have and recover from the defendants the land sued for, cancelling the certificates and patents, all at the costs of de
fendants, awarding execution for such costs, hut failing to award any writ of possession to plaintiffs. There is no statement of facts in the case, therefore the facts found by the court below are taken to be true. We make the findings of fact and law by the court below, as found in the record, a part of the statement made by us so far as may be necessary to a full understanding by the Supreme Court of the questions now here ■certified.
Questions.—“The following questions arise under the foregoing statement and are necessary to be decided in this case, and we respectfully refer and certify them to the Supreme Court of the State for answer and decision:
“1. Did the judgment of the court below, failing to award a writ of possession to plaintiff, disturb the possession of the receiver of the land in suit, or interfere with the custody of the Circuit Court of the United States?
“2.
Could the suit by the State be maintained in the state court without permisison of the said circuit court, that is, did the state court have jurisdiction under the circumstances of possession or- constructive possession by the receiver, to entertain the suit and try the right and title of the parties plaintiff and defendant to the land without obtaining permission of the federal court, that court not interfering or being asked to interfere, by injunction or otherwise, with the prosecution of the suit in the state court? Is this question controlled by
3
of the Act of Congress of 1887? See Act of Congress, 1887, p. 55-4, sec. 3.
“3. Was the receiver, Dillingham, a necessary party to the suit, and did the court err in hearing and proceeding to judgment in the same without having made him a party thereto, or in overruling the plea to abate the suit?”
Under the view that we take of the third question, it is unnecessary for us to answer the first and second questions certified. The receiver not being a party to this suit, the first and second questions propounded are not material to the issues as we understand them.
This is an action of trespass to try title to certain lands described, and the following provisions of our law govern as to who may be made parties to that proceeding: Article 4790 of the Revised Statutes reads thus: “The defendant in the action shall be the person in possession if the permises are occupied, or some person claiming title thereto in case they are unoccupied.” Article4788 provides: “When a party is sued for lands, the real owner or warrantor may make himself or may be made party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.” Article 4789 is in this language: “When such action shall be commenced against a tenant in possession, the landlord may enter himself as the defendant or he may be made a party on motion of such tenant and he shall
be
entitled to make the same defense as if the suit had been originally commenced against him.”
The land in controversy was not occupied by anyone and the defend
ants did not claim to hold it as tenant of the receiver of the Houston & Texas Central Railroad, nor was the receiver hound to them or either of them in the character of warrantor. If he had been either, it would not have been necessary for the plaintiff to make him a party defendant to the suit, but he might have been made a party at the instance of the defendant or on his own motion.
When the State instituted this suit it presented to the defendants an issue of title, and if they did not claim title to the land they should have entered their disclaimer; by filing a plea of not guilty they joined issue with the State upon the question of title. The fact that, a third person claims title to the land in controversy will not entitle the defendants in the suit to have such third person made party thereto if the defendant does not claim as tenant of such third person. If a superior legal title to that of the plaintiff be in another person (which is not shown in this case), the defendant may show that fact as a defense against the plaintiff’s right to recover, but this will not entitle him to force the plaintiff and the owner of such superior title to litigate their rights in that suit. The answer of the defendants in this case did not show such a state of facts as entitled them to have the receiver made a party defendant herein. (State v. W. L. & C. Co., 73 Texas, 453.)
We therefore answer the third question that the receiver of the Houston & Texas Central Railway Company was not a necessary party to this suit and the District Court did not err in overruling the defendants’ plea in abatement and proceeding to trial without making the receiver a party defendant.