Thompson v. Johnson

2 Posey 258

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 262
• Status: Published

Opinion

Opinion.— This objection cannot be maintained, as the commissioner had passed upon the validity of the assignment and had issued a patent to the assignee. From, that time the assignment became a record of the land office, and the copy was properly admitted. Short v. Wade, 25 Tex., 510; Mason v. McLaughlin, 16 Tex., 24, But appellant insists that the transfer from Burnet and wife to appellee was void because it was not by deed authenticated as required by act of March 24, 1871. Pasch. Dig., art. 7103. But we cannot accept this conclusion. The act of 1871 above referred to does not apply to transfers like' that of Burnet and wife. By its terms it applies to transfers made after party has resided upon ,the land for three years and has acquired an equitable title to the la,nd. The case, then, may be stated thus:

Appellee made a valid location upon the land on October 7,1874. This severed the land from public domain for one yeár. A location by another party within the year was void as against appellee. McKinney v. Grassmeyer, 51 Tex., 376.

A pre-emptor would be in no better position than a locator. Another point made by appellee is that the location and survey were made by virtue of one certificate and patent issued upon another. But when a party has appropriated land by a valid location and survey, no one but the locator and the state have any interest in the land, and if the state patents the land upon a different certificate, no other persons have a right to complain.

Affirmed.