Russell v. Bates

21 S.W. 132, 1 Tex. Civ. App. 609, 1892 Tex. App. LEXIS 119

• Court: Court of Appeals of Texas
• Decided: December 13, 1892
• Docket: No. 51.
• Status: Published

Opinion

HEAD, Associate Justice.

On March 31,1883, the Legislature passed the following act: “Be it enacted by the Legislature of the State of Texas: That all surveys and patents by virtue of headright or bounty warrants issued under special laws enacted after March 3, 1870, and prior to April 1, 1876, to which there is no valid legal objection other than that such special laws are supposed to be in conflict with the Constitution then in force, are hereby validated and confirmed and declared to be as binding upon the State as they otherwise would be if such special laws had been permitted by the Constitution; provided, that if such headright or bounty certificate had been forfeited under existing laws by location and surveys on appropriated land, this act shall not be construed to revive the same; provided further, this act shall only apply to soldiers and heirs and actual settlers of Texas and their vendees to whom lands have been granted.”

On September 2, 1889, appellants filed their petition in the District Court of Denton County, alleging that on the 19th day of February, 1873, the Legislature of the State of Texas passed a special act granting to William J, Russell a certificate for 640 acres of land for his having participated in the campaign against Bexar in 1835, and also containing the necessary allegations that said Russell had in fact participated in said campaign so as to entitle him to said certificate. That this certificate was located on the land in controversy and patent was issued to said Russell on the 20th day of September, 1873. Appellants’ petition also showed that said William J. Russell died on the 5th day of November, 1881, and that they are his heirs, and they seek to recover of defendants, who are alleged to be trespassers, the land so patented.

Delivered December 13, 1892.

The court below sustained a general demurrer to appellants’ petition, holding, as we infer from the briefs of counsel, that the land having been patented to William J. Russell himself, and he being dead at the time of the passage of the Act of 1883, his heirs would have no claim to the land under said act. As an original proposition, the proper construction of this act would present questions of considerable difficulty; but since the decision of this case in the court below our Supreme Court has fully construed this statute, and, as we think correctly, held in such cases the heirs would be entitled to the land. Ralston v. Skerrett, 82 Texas, 486; also opinion of Commission of Appeals in same case, 17 S. W. Rep., 238.

The judgment of the court below will therefore be reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.