Rutherford v. French

2 Posey 724

• Court: Texas Commission of Appeals
• Decided: July 1, 1881
• Docket: No. 2899
• Status: Published

Opinion

Opinion.— The appellees introduced evidence in the court below shoxving the facts as alleged in the petition as to the settlement, occupancy and improvement of the land by Lafour and the payment of the taxes by him, and a full compliance xvith the law by him for more than three years; his sale and transfer to Donaldson in 1858, the latter’s occupancy and death in 1860, and the heirship of appellees. No patent had ever issued by virtue of this claim of preemption. The appellant introduced in evidence a patent for the land issued to Patrick O’Leary, dated September 5, 1871, and it xvas admitted that appellant held under a regular chain of transfer from O’Leary. There is no evidence in the record shoxving xvhen or at what time the location was made by O’Leary or xvhen his equities attached to the land.

The patent was evidence of title, and it was incumbent upon appellees to rebut the'same by showing prior equities to those that eventuated in the patent. Washburn on Beal Property, voh 3, p. 175; Todd v. Fisher, 26 Tex., 241; The State v. Galveston City Co., 38 Tex., 31.

. For aught that appears in the record the O’Leary location may have been made long prior to the settlement upon the land by Lafour., And as the burden xvas upon the appellees to avoid the force and effect of the O’Leary patent and the pre-emption or right arising therefrom, we are of the opinion that they must show that their equities, arising from the settlement and occupancy of Lafour, were prior in point of time to the inception of O’Leary’s equities that were perfected in the issuance of the patent.

We are of the opinion that the judgment is not sustained by the evidence and should be reversed and the cause remanded.