Moreland v. Atchison

24 Tex. 164

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Wheeler, C. J.

The question of the sufficiency of the petition was settled on a former appeal. (19 Texas Rep. 303.) The disposition of the case must now depend on the question of the correctness of the charge of the court. It is certain, that Boone acquired no right of pre-emption by virtue of his settlement and survey, because the land was not then subject to be thus appropriated, being within the limits of Peters’ colony, and the settlement and survey having been made during the reservation created by the Act of the 10th of February, 1852. (Laws 4th Leg., ch. 72, § 3.) Having no right to the land, Boone could convey none by his sale to Atchison, the defendant, or by his deed of conveyance to the plaintiff. It follows, that the plaintiff acquired nothing by his purchase from the defendant.

Thus the matter stood, as respects the title to the land under the supposed pre-emption right, at the time of bringing the suit, and at the time of the former trial in 1855. The pre-emption claim and survey had not the effect to sever the land from the public domain; the defendant had no right or title to the land, and the deed he procured to be made to the plaintiff, was wholly worthless. But the court, in charging the jury, appears to have denied the right of the plaintiff to avail himself of the defendant’s want of title at the time, because, if he had taken and held the possession down to the passage of the Acts of the 26th of January, and the 15th of August, 1856, (O. & W. Dig. 745, Art. 357, § 58,) he would have been entitled to the benefit of that act. In this we think the court was in error. The case must be determined by the rights which the parties had at the time of bringing the suit. It cannot be made to depend upon what rights they might have acquired, had they anticipated the subsequent legislation for the benefit of pre-emption claimants. Nor can it be imputed to the plaintiff as a fault, that he did not settle and remain upon the land, so as to obtain the benefit of future legislation. If he was defrauded in his contract with the defendant, his right of action to rescind the contract, and recover back the purchase-money, can be in no way affected by the subsequent legislation for the benefit of pre-emption claimants, which he could not anticipate, and could be under no obligation to place himself in a condition to take the benefit of, and from which he derived no benefit.

Neither was the plaintiff’s right of action affected by his having sought to secure the land by a certificate, and afterwards, for a consideration paid him, having withdrawn it, and suffered another to locate. He had applied to the defendant to secure the land by a certificate, which the latter refused to do. Equity required no more of him, in reference to any supposed right of the defendant. But the latter had no right, was in no way injured, and having had the opportunity afforded him of securing the right, can have no cause to complain that it was secured by another. It does not appear, that the defendant was in possession when he sold to the plaintiff, or that the latter went into possession, or ever derived any benefit or advantage whatever from his purchase. He disposed of nothing which he had acquired from the defendant, but only the advantage, he had obtained by his own act of diligence; in applying a certificate to • the land.

We are of opinion, that there is error in the charge of the court, for which the judgment must be reversed, and the cause remanded.

Reversed and remanded.