Full opinion text
TIREY, Justice. This suit was brought in trespass to try title to 495.22 acres of land (out of the Wilson Strickland Survey, patented July 3, 1847) now in Montgomery County, Texas. In December, 1931, numerous suits were filed by various alleged heirs of Wilson Strickland; one suit was filed by an alleged grandson of Allen Vince; another suit was filed by a group of Phillips heirs. W. T. Williams filed suit against Humble Oil & Refining Company and other oil companies, landowners, and royalty-owners in possession, claiming that the Wilson Strickland patent was void and that he was entitled to an oil' and gas lease thereon from the State. He joined Nat Davis, who had on file with the Commissioner of the General Land Office a rejected application for a mineral lease on the property which antedated the rejected application filed by him. He also joined the heirs and legal representatives of Wilson Strickland, Allen Vince, John Vince and C. B. Stewart and various other claimants, some of whom he alleged their places of residence to be unknown, and also “the unknown heirs and legal representatives of all the above named defendants, the name and places of residence of all of whom are unknown to plaintiff.” Under the 1939 Leasing Act, Vernon’s Ann.Civ.St. art. 5421c, §§ 6 and note, 8, 5421c — 1 to 5421c — 3, the State intervened by formal suit in the trespass to try title and in a second count pleaded specially in the alternative to cancel the Strickland patent. The State’s suit asserted the invalidity of the Strickland patent and claimed it had never parted with title 'to said land and claimed that its title was superior to all others and that the Strickland patent should be cancelled. On motion all suits involving this particular tract of land were consolidated and tried as one suit. Upon the trial the State, Williams and Davis constituted themselves into one group and presented their evidence as one claim. Each family of alleged Strickland heirs claiming to be unrelated to each other family of alleged Strickland heirs, presented its respective claim in a separate group (seventeen separate groups), each group seeking to establish its family group as the true heirs of the original Wilson Strickland. The trial began on August 26, 1940, before a jury and was concluded August 2, 1941, when the jury returned their verdict and the court entered its judgment under date of August 11, 1941. At the conclusion of the testimony the trial court granted the defendants’ (Humble Oil & Refining Company et al.) motion for an instructed verdict against Williams, Davis and the State. The court also overruled motion of Williams, Davis and the State for an instructed verdict in their behalf and thereupon the court submitted to the jury the cause of the other claimants. The verdict of the jury was against each family group. After the jury’s verdict was returned the trial court overruled motion of Williams, Davis and the State for judgment notwithstanding the verdict, whereupon the court rendered judgment for the Humble Oil & Refining Company and various landowners in possession against all other parties. This action of the court is assailed as error. The cause was appealed to the Honorable Ninth Court of Civil Appeals and later transferred to this court by order of our Supreme Court. The State, Davis and Williams filed transcript and statement of facts, and in addition to the appeal bond filed by Williams and Davis, eight of the other family groups filed separate appeal bonds and transcripts and when the cause reached the Ninth Court of Appeals the clerk gave each group filing a bond a separate style and number. We have this day, on our own motion, consolidated each of these eight appealing groups under the above number and style. We will now give our attention to the errors assigned by plaintiff Williams, Davis and the State of Texas. Since the State of Texas claims the land in question and since the trial court gave an instructed verdict against the State, Davis and Williams, the first major question that presents itself to us is: Did the State part with title to the land by virtue of the patent issued July 3, 1847? We think it did. It is obvious that if the State parted with its title, it has no further interest in the land and it necessarily follows that Davis and Williams have no claim. In passing upon this question “it is our duty to disregard all conflicts in the testimony; to consider the evidence adduced in the 'case in the light most favorable to plaintiff, and to indulge in his favor every intendment reasonably deducible from the evidence. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935. When the facts are controverted, or such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only when the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S. W. 1150.” James v. Missouri-Kansas-Texas R. Co., Tex.Civ.App., 182 S.W.2d 921, 922, writ ref. The point raised is vital and requires a' comprehensive statement. Harris County was originally named Harrisburg County. Section 10 of the Constitution of the Republic of Texas adopted March 17, 1836 (See Hartley’s Digest, p. 38) provided: “Section 10. All persons (Africans, the descendants of Africans and Indians excepted) who were residing in Texas on the day of the Declaration of Independence, shall be considered citizens of the Republic, and entitled to all the privileges of such. All citizens now living in Texas, who have not received their portion of land in like manner as colonists, shall be entitled to their land in the following proportion and manner: Every head of a family shall be entitled to one league and labor of land; and every single man of the age of seventeen and upwards, shall be entitled to the third part of one league of land.” According to the Lost Book of Harris County, Wilson Strickland made claim to one-third of a league of land under the above provision of the Constitution. Certificate 423, for one-third of a league of land, was issued to Wilson Strickland on March 16, 1838, by the Board of Land Commissioners of Harrisburg County. This certificate was conditioned on his paying a certain price per. labor of land depending on its character. John Carson, Deputy Surveyor, made a survey of the land patented to Strickland subsequent to the 1st of July, 1838, and prior to August 15, 1838. George M. Patrick, County Surveyor of Harrisburg County, certified that he had examined the field notes, and found them correct and the survey made according to law. On August 31, 1839, Wm. M. Burch, as agent of Wilson Strickland, paid in full to the Secretary of the Treasury of the Republic of Texas the consideration due as certified by John P. Borden, Commissioner of the General Land Office of the Republic of Texas. On January 29, 1840, the Republic passed an act to detect fraudulent land certificates. See 2nd Gammel’s Laws of Texas, p. 313, Hartley’s Digest, Art. 1946. This act provided for the election of three commissioners whose duty it should be to visit each county west of the Brazos River and three to visit each county east of the Brazos River and in conjunction with three county commissioners from the respective counties to inspect the records of the Boards of Land Commissioners and ascertain by satisfactory testimony what certificates for land had been issued to legal claimants and report as soon thereafter as practicable to the Commissioner of the General Land Office such certificates as they found genuine. The Land Commissioner was instructed by the Act to issue a patent upon the return of a survey by authority of a certificate reported as legal and genuine by the Investigating Commissioners, and he was prohibited from issuing a patent upon any survey “that shall not have been or may hereafter he made” by authority of a certificate returned as genuine and legal by the Commissioners. This act contained no provisions as to the rights of a person whose certificate might not he approved by the Investigating Commissioners. On February 4, 1841, Congress passed an act supplementary to an act to detect fraudulent land certificates. 2nd Gammel’s Laws, p. 635, Hartley’s Digest, Art. 2035. This supplementary act provided that the holder of any certificate which might not have been recommended-by the Traveling Land Board might file suit in the District Court to attempt to establish the genuineness of his certificate. The claimant, if successful, had to pay ten dollars costs; if unsuccessful, he had to pay fifty dollars costs. This supplementary act set no time limit for filing suits. It is without dispute that when the Traveling Land Board visited Harris County some of the records were missing and the Board did not have an opportunity to examine them. The lost records were found some six weeks after this Board had held its session and the then Clerk of Harris County called this matter to the attention of the Commissioner of the General Land Office. This officer called the matter to the attention of Congress fay letter of October 13, 1841. Thereafter, ow December 20, 1841, Congress passed an Act for the Relief of John S. Black and other citizens of Harris County. 2 Gammel’s Laws, p. 691, Hartley’s Digest, Art. 2078. This act provided : “That the tribunal or Board of Land Commissioners of the County of Harris, created by an Act entitled ‘An Act defining the mode by which holders of conditional1 certificates shall establish same,’ approved January fifteenth, one thousand eight hundred and forty-one, shall form and constitute a Board for the said County of Harris, to investigate all claims the record of which were lost or mislaid during the investigation of the Board of Commissioners appointed under an Act entitled ‘An Act to detect fraudulent land certificates, and provide for the issuing of patents to legal claimants’ and which claims have never been passed upon by said last mentioned Board.” The Relief Act provided that any holder of a certificate issued by the Board of Land Commissioners of Harris County which had not been examined by the Traveling Board might apply to the tribunal “to execute to the said holder a certificate that they have examined said claim and find same legal and justly entitled against the Government.” The act concluded “that it shall be the duty of the Commissioner of the General Land Office to issue patents upon all claims which may be certified as genuine, and justly entitled, in accordance with this Act, in the same manner as though the same had been recommended by the said Board of Commissioners appointed under ‘An Act to detect fraudulent land certificates.’ ” On March 26, 1847, the Board of Land Commissioners of Harris County executed a certificate to the holder of the Wilson Strickland Certificate No. 423, dated March, 1838, which certificate, among other things, recited: “This is therefore to declare that the said Wilson Strickland is entitled to an unconditional headright of One-Third of a league of land by virtue of his immigration and the aforesaid certificate.” Thereafter, on July 3, 1847, patent to the Wilson-Strickland Survey was duly issued. The appellees introduced in evidence a certified copy of the Lost Book of Harris County. This book contains the record of some 300 claims. The record of the Wilson Strickland certificate appears on page 58 (Exhibit D-242, shown on page 33 thereof) of this Lost Book. The Act for the Relief of John S. Black and others was passed for the benefit of the holders of the certificates, the records of which appear in the Lost Book. But the State contends substantially that the Act of February 3, 1845, passed by Congress (2 Gammel’s Laws, p. 1156, Hartley’s Art. 280) had the effect to repeal the act passed for the relief of John S. Black and others. We cannot agree with this contention. The Act for the Relief of Black and others named the Chief Justice and the two Associate Justices of the County Court as a Board to pass upon claims based on the records in the Lost Book. At that time (1841) the Chief Justice was elected by a popular vote and two Associate Justices were selected by a majority of the Justices of the Peace. These three constituted the County Court. The Act of Feb. 3, 1845, passed by the Congress did change the number of members constituting the Comity Court and the method of the selection of four of them, but we do not think that such act had the effect of destroying the tribunal which under the Act for the Relief of John S. Black and others was empowered to pass upon the validity of the certificates listed in the Lost Book. The Act of February 3, 1845, does not mention the John S. Black Act, nor is there anything in it to indicate that Congress was attempting in any way to change or modify that act. The John S. Black Act had made the County Court as it was then constituted the tribunal which was authorized to pass on the validity of the certifi.cates listed in the Lost Book, and the Act of February 3, 1845, did nothing to alter this. The act did change the method of selecting some of the members of the County Court and it increased the number. The new court provided for by the Act of February 3, 1845, was still the County Court and it was still the tribunal which, under the John S. Black Act, was empowered to investigate and pass upon the validity of the claims listed in the Lost Book. It is true that the Harris County Board did not have occasion to pass on the Wilson Strickland certificate until March 26, 1847, which was after the days of the Republic and at a time when the laws passed: by the Legislature of the State of Texas were in effect. However, on May 13, 1846 (2 Gammers Laws, p. 1639, Hartley’s Art. 285) the Legislature passed an act organizing County Courts. Section 14 of this act provides: “Be it further enacted that the several county courts of the State shall have and exercise all the powers which by law are vested in county courts or boards of county commissioners or chief and associate justices as land commissioners.” This act became effective on March 26, 1847, when the members of the County Court of Harris County, acting as a tribunal or board, examined the Wilson Strickland Certificate No. 423, and found that it was genuine. It is clear to us that under the terms of the Act of May 13, 1846, the County Court was vested with the power and duty to act as a tribunal within the terms of the John S. Black Act. (A certified chart showing the name of each person whose claim in the Lost Book was confirmed by the Board of Land Commissioners acting under the John S. Black Act, and showing all data as reflected by the files of the General Land Office on surveys and patents issued thereon, was tendered in evidence as Exhibit D-399, and Wilson Strickland’s name appears on page 11 thereof.) Our view is that the contention of the State, Davis and Williams that the Wilson Strickland certificate was not recommended by the Land Board which was created to detect land frauds is contrary to the undisputed record. But the State contends that since no suit was filed on the Strickland certificate prior to January 1, 1844, it became null and void, and this contention, as we understand it, is based on the Act of February 4, 1841, which gave certificate holders the right to file suit in the district court for the purpose of perfecting their certificates and claims. This contention is overruled. The Act of February 4, 1841, was called a supplementary act. On January 14, 1843 (2 Gammel’s Laws, p. 839, Hartley’s Art. 2102) Congress passed an act supplementary to the Act of February 4,, 1841. This Act provided: “Be it enacted by the senate and house of representatives of the Republic of Texas in Congress assembled, that all suits contemplated by the first section of an act to which this is a supplement shall be commenced on or before the first day of January, 1844, and not thereafter.” It is the contention of the State, Davis and Williams that this statute had the effect of taking away from all parties the record of whose certificates was shown in the Lost Book the relief which had been granted them by the John S. Black Act. We cannot agree with this construction. The act makes no mention of the John S. Black Act and recites that it is supplementary to an act which was in effect when the John S. Black Act was passed. The fallacy of appellants’ position is that Congress, by the John S. Black Act, had provided previously in effect that these people did not have to file suit but that they might go to the special tribunal and have their certificates approved, and this act set no time limit in which these certificate holders should present their certificates to the special tribunal. The State also contends that by virtue of Section 2 of Article 11 of the Texas Constitution of 1845,. the district courts of the state which had been closed since January 1, 1844, were reopened for the benefit of Wilson Strickland and those other people, the record of whose certificates was in the Lost Book, in order that they might file suit on those certificates; the State contending that under this constitutional provision all other means of establishing the validity of their certificates were taken away from those claimants to whom relief had been granted by the John S. Black Act unless they filed suit by July 1, 1847. This contention is overruled. We think it is clear that the certificates which were barred under this constitutional provision were those which were not established or sued upon. We doubt if this provision had any application to the Lost Book certificates (a question which we are not called upon to decide), but even if it should apply, it would not be applicable to the Wilson Strickland certificate because it was established (March 26, 1847) before July 1, 1847, the date mentioned in this section, and for that reason said provision did not bar the Wilson Strickland certificate. It follows that we are of the opinion that the holder of the Wilson Strickland certificate did not lose his rights because he failed to file suit by January 1, 1844, the date named in the act of January 14, 1843, nor by July 1, 1847, the date mentioned in the foregoing provision of the Constitution; nor do we find that the John S. Black Relief Act had been repealed. There is no express repeal of this act. Section 3 of Article 13 of the Constitution of 1845 provided: “All laws or parts of laws now in force in the Republic of Texas, which are not repugnant to the Constitution of the United States, the joint resolutions for annexing Texas to the United States, or to the provisions of this Constitution, shall continue to remain in force as the laws of this State until they expire by their own limitation, or shall be altered or repealed by the legislature thereof.” We think this section continued the John S. Black Act in force. We think the rule in Texas is that the repeal of statutes by implication is never favored or presumed. When a new statute is passed dealing with a subject covered by an old law, if there is no express repeal, the presumption is that in enacting a new law the Legislature intended the old statute to remain in operation. See 39 Tex.Jur. sec. 75; Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063; Parker v. Bailey, Tex.Com.App., 15 S.W.2d 1033; Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167. Moreover, the John S. Black Act was a special act for the benefit of a class. The Act of February 3, 1845, referred to, was a general act. The enactment of a general law does not originally operate as a repeal of a particular or special law, by implication, although both relate to the same subject matter. On the contrary, both statutes are permitted to stand, and the general law is applicable to all cases not embraced by the specific act. The special act is construed as constituting an exception to the general law. See Townsend v. Terrell, supra; Flowers v. Pecos River Co., 138 Tex. 18, 156 S.W.2d 260; Tolleson v. Rogan, 96 Tex. 424, 73 S.W. 520. The appellees also offered the complete files of the Land Office on each of the certificates shown in the Lost Book. Part of these certificates were confirmed prior to February 15, 1846. The patents issued on certificates confirmed prior to February 15, 1846 covered more than 122,000 acres. Other certificates were confirmed subsequent to February 15, 1845, and prior to December 2, 1850, and these certificates covered in excess of 234,000 acres. It is the State’s contention that each of the patents which was based on confirmation dated subsequent to January 1, 1844, is null and void. As a basis for this contention the State says that the Act of January 14, 1843, had application to those certificates listed in the Lost Book, and that the failure of the holders to file suit prior to January 1, 1844, rendered the certificates null and void. It appears that 40 of these certificates in the Lost Book were confirmed subsequent to January 1, 1844, and prior to February 15, 1846, and that 114 certificates were confirmed after February 15, 1846, and that no confirmation was had through the district court. All of these confirmations were made by the same tribunal of Harris county as confirmed the Wilson Strickland certificate and were accepted by Commissioner of the General Land Office and patents were executed by the Governor and Commissioner of the General Land Office holding office at that time. If the State’s contention that the failure of the holder of the Wilson Strickland certificate to file suit in the district court to establish the validity of his certificate prior to July 1, 1847, renders the Wilson Strickland patent invalid, then each of the other 154 patents last above referred to based on certificates confirmed after January 1, 1844, is likewise invalid. It is obvious that all' officials charged with the administration of our land laws were of the opinion that the Black Act was still in full force and effect until 1850, and that the officials constituting the County Court of Harris County had power to act as a tribunal under said act. In fact, it appears that in 1850 the Commissioner of the General Land Office submitted to the Attorney General of the State the question as to whether the law for the relief of John S. Black and others had expired. The Attorney General, by written opinion, held that up until March 1, 1850, the Board of Land Commissioners of Harris County had full authority to act as a tribunal under the Black Act. The opinion of the Attorney General was based on the fact that on March 1, 1848, the Legislature had passed an act stating in effect that after March 1, 1850, no board of land commissioners should have the power to issue an unconditional certificate. Thereafter, on December 2, 1850 (3 Gammel’s Laws p. 860) the Legislature passed an act instructing the Clerk of the County Court of Harris County to transmit to the Commissioner of the General Land - Office the book known as the Lost Book. If the State’s contention is correct, then it appears that it had issued 156 invalid patents from the Lost Book. The Commissioner of the General Land Office was ordered to file this book as one of the archives of his office, Art. 250, sec. 4, Revised Civil Statutes 1925, and he was required to issue patents on the certificates mentioned in the book which had never been acted on or rejected by the Board of Commissioners appointed to detect fraudulent land certificates. See 3 Gammel’s Laws p. 887, Act of December 8, 1851. By this Act of December 8, 1851, the Legislature again determined that those people, the record of whose certificates appeared) in the Lost Book, were entitled as a class to have relief. Thus, on two separate occasions, we find that the Legislature recognized the validity of the certificates recorded in this Lost Book on which no suit had been filed. We have carefully examined each of the exhibits relating to the Wilson Strickland' Certificate No. 423, and we are of the opinion that it was returned as a genuine certificate by the tribunal authorized by the John S. Black Act to pass on such matters, and that the patent issued by the State of Texas on July 3, 1847, based on this certificate, is a valid patent. The next question that presents itself is: Since it is without dispute that the Deputy District Surveyor of Harris County surveyed the Wilson Strickland Survey and prepared the field notes thereto, was the land embraced in said field notes and after-wards patented actually in Harrisburg County at the time the survey was made; or, if at the time the land was surveyed and the field notes prepared such land was not in Harrisburg County, did it lie within a doubtful zone or area which was shown on the maps available in the State Land Office as being in Harrisburg County and was believed by the Land Commissioner and all others dealing; with the area in good faith to be in Harrisburg County, and did the issuance of the patent validate the survey and make the patent legal? Or, in the event that the land in controversy actually lay in Montgomery County at the time it was surveyed and field notes prepared by the County Surveyor of Harrisburg County in 1838, did the patent to Wilson Strickland validate the same and thereby bind the State and all other parties? The discussion of these -questions necessarily requires a comprehensive statement. The boundaries of the municipality of Washington were defined in 1835 and it was bounded on the south by the northern lines of the municipality of Austin and Harrisburg. See 1 Sayles Early Laws, p. 620. The boundaries of the municipality of Harrisburg were defined by decree of January 1, 1836 (1 Gammel’s Laws 1022) as follows: “Beginning at the entrance of Clear Creek into Galveston Bay, running up said creek with the line of the municipality of Brazoria and with said line to the Brazos river; thence up said river to the upper line of a league of land granted by the Mexican government to Isaacs; thence along said line to the northeast corner of said league; thence northwardly, to include the settlements on Spring Creek, to the southern line of the municipality of Washington; thence eastwardly along said line of the municipality of Washington, and so far eastwardly as to intersect the line dividing tne department of Brazos and Nacogdoches, thence southwardly along said line to Galveston bay; thence to the place of beginning.” This act specifically included the settlements on Spring Creek to the south line of the municipality of Washington. It is obvious from the Acts of 1835 and 1836 that the south line of the municipality of Washington, the eastern part of which later became Montgomery County, was at that time north of the Spring Creek settlements. By Act of December 17, 1836, 1 Gammel’s Laws 1193, the Chief Justice of Harrisburg County was required to furnish a description of its boundaries. It is true that on January 30, 1837, Chief Justice Briscoe wrote the Secretary of State wherein he said: “I send you a statement of the boundaries of Harrisburg County as nearly as I can ascertain them in the absence of laws creating them.” We think it does not appear that a survey of the county boundaries had been made at that time and it does appear from the statement of Chief Justice Briscoe that he did not know exactly where the true lines were. It is true, as contended by the State, that if a line were projected due east from the source of Spring- Creek, same would not include within Harrisburg County the settlements on Spring Creek. Therefore, Bris-coe’s description was erroneous within itself because it conflicted with the provision of the Act of January 1, 1836. There was evidence to the effect that there was some ambiguity as to the location of the common line between Harrisburg County and Montgomery County and the Congress re-defined the “boundaries of Montgomery County by Act of December 14, 1837.” 1 Gammel’s Laws 1375. (It is without dispute that the land in question as it now lies in Montgomery County is slightly in excess of five miles from the boundary line of Harris County.) Section 1 of this Act provides that all of Washington County lying east of the Brazos and southeast of the Navasota Rivers should be Montgomery County. Section 6 provided “that the lower line of the County of Montgomery shall commence at the mouth of Lake Creek; thence in a direct line to the head of Pond Creek, and thence in a direct line to the mouth of Beeson creek; thence up the Brazos River to the mouth of the Nav-asota River.” On the same day the surveyors of Harrisburg and Montgomery counties were directed to survey the boundary line between their counties. This survey was not made until March, 1841. The field notes of said county line were jointly returned to the General Land Office by the surveyors of both counties, and on the letter of the surveyors a sketch was drawn. Much evidence was tendered with reference to the Henderson-Bullock 1841 county line, the field notes of which actually place said line on the ground, and it appears to us that reasonable minds cannot differ that the Act of December 14, 1837, together with the line as surveyed by Henderson-Bullock in 184-1, left that part of Harrisburg County on the east side of the San Jacinto River, extending north of the mouth of Lake Creek, with the result that the Wilson-Strickland Survey was at that time within Harrisburg County. The boundary of Montgomery County was again defined by the Congress by Act ■of May 24, 1838. 1 Gammel’s Laws 1518. By this act the boundary line was called to run west and south with the boundary of Liberty County “till it strikes the northern boundary line of the County of Harrisburg; thence west with the boundary line of said county to the County of Austin.” It is clear that no change was made in the location of the line as surveyed in 1841 under the 1837 Act, and under the Act of 1838 the Wilson-Strickland Survey was in Harrisburg County. The Montgomery County boundary was again changed by the Act of 1840. See 2 Gam-mers Laws 396. And the boundaries were called to follow the meanders of Spring Creek from its head to the San Jacinto River; “thence N. 50 deg. E. to the western line of Liberty County.” Our view is that this Act for the first time definitely located the southern line of Montgomery County and the northern line of Harris County at all points between the head of Spring Creek, crossing the San Jacinto River and extending eastwardl'y therefrom, and that such description for the first time placed the Wilson-Strickland Survey in Montgomery County. We think it is clear that the Wilson Strickland Survey and others had been surveyed and located on the ground by the surveyors of Harrisburg County at a time when the land was definitely within the boundaries of Harrisburg County and of course the validity of such surveys was in nowise affected by a subsequent change of the boundary, line. Moreover, on April 6, 1844, the County Surveyor of Montgomery County wrote the Commissioner of the General Land Office in part as follows: “I have not as yet been able to get a connected map of the surveys returned in the County of Harris which now are included within the limits of Montgomery. I wrote to the County Surveyor of Harris relative to the matter and he replied that he had not as yet received any communication from you on that subject but would attend to the matter as soon as required by you to do so. I hope you will as soon as practicable make this requisition of him as it is impossible to complete the map of this county until that is done. I would also suggest that the County Surveyor of Harris be required to transcribe in a well bound book all the surveys which may be included within the limits of this county and certify to the same in a proper manner which can be deposited with the records of this county as a part of the same.” Thereafter on June 12, 1844, the Land Commissioner wrote the Surveyor of Harris County in part as follows: “You will make out and deliver to the Surveyor of Montgomery County as soon as possible a connected map of such surveys that have been returned to your office as are now within the limits of Montgomery County and you will also deliver to him a properly certified transcript of the record in your office of said surveys.” The next day the Land Commissioner advised the surveyor of Montgomery County of the action he had taken. The County Surveyor of Harris County did make such surveys and presented an itemized bill of his work for his services, one item of which was “writing transcript of field notes returned to Harris County north of Spring Creek now in Montgomery County as per instructions from the Commissioner General Land Office dated 12 June A. D. 1844 * * It also appears that the County Surveyor of Montgomery County, under date of September 2, 1844, received from the County Surveyor of Harris County a transcript of surveys returned and recorded in Harris County, “also connecting plat of said surveys lying north of Spring Creek and north of a line running from the mouth of Spring Creek North SO deg. East to the west boundary line of Liberty County, as defined by the last act of Congress defining the boundary line between Montgomery and Harris Counties.” It also appears that the field notes for the Wilson-Strickland Survey, as recorded in Surveyors’ Records of Harris County, bear a notation: “Copy sent to Montgomery County.” Testimony was tendered to the effect that many of the records of the County Surveyor’s Office of Montgomery County have been lost or destroyed, and that the field notes last above referred to are not now among the present records of the County Surveyor of Montgomery County; however, the records were still in the office of the County Surveyor of Montgomery County as late as 1893. On September 14, 1893, the County Surveyor of Montgomery County wrote the Commissioner of the General Land Office concerning the Wilson-Strickland Survey in part as follows: “The location and field notes appear on the surveyor’s records and no assignee appears there. It was located in Harris County and that part of the County was attached to Montgomery and the Surveyor’s Records transcribed by Geo. B'ringhurt in 1838 or 9, and the original remains in my office.” Much testimony was tendered with reference to various official maps made of this particular area. Exhibit D-10 is an 1839 map of Texas compiled from surveys on record in the General Land Office of the Republic to the year 1839 and certified to by the First Commissioner of the General Land Office of Texas. This map shows the north line of Harrisburg District (being the south line of Montgomery County) running from the head of Spring Creek in a course approximately north 45 degrees east to the junction of the Liberty District west line with Big Creek. This line crosses the San Ja-cinto River many miles north of the mouth of Lake Creek, and many miles north of the Wilson Strickland Survey, and this map places the Wilson Strickland Survey in the Harrisburg District. (Exhibit D-ll is a. white photostatic copy of D-10 and is more easily read.) Exhibit D-12 is designated as General Austin’s map of Texas with parts of adjoining states, compiled by Stephen F. Austin, published by H. S. Tanner, of Philadelphia, and certified to by the State Librarian to be a true and correct photostat of said map. This map was published in 1840 after the death of Stephen F. Austin in 1839. This map shows the division line between Harris and Montgomery Counties as running from the head of Spring Creek on a course somewhat north of east, crossing the San Jacinto River at the mouth of Grimes Creek and extending to the western boundary of Liberty County. This map is in accordance with the General Laws of 1836 fixing the boundary of Harrisburg District and with the Briscoe 1837 definition of the north line of Harris County, beginning at the head of Spring Creek and running easterly so as to include the settlements on Spring Creek. We think it is in substantial accord with the Act of December 14, 1837, fixing the south line of Montgomery County and with the Henderson-Bullock 1841 survey. We think this map also shows the Wilson-Strickland Survey in the Harrisburg District, or Harris County. Exhibit D-32 which is a hard copy map of Montgomery County, dated February 13, 1855, also shows the Henderson-Bullock 1841 line extending in a northeasterly direction from the lower left-hand corner of the map, toward the center portion thereof and intersecting the San Jacinto River at the mouth of Lake Creek. If this line be projected on the same course in an easterly direction to the west line of Liberty County, the Henderson-Bullock line will correspond almost precisely with the District Line shown on Stephen F. Austin’s map referred to. The comparison of map D-32 with Exhibit D-74 reveals that the tier of surveys on the east side of the San Jacinto River and running south from the mouth of Lake Creek, are identical in each instance. We think a careful study of Exhibit D-32 aforesaid, which is the map kept by the County Surveyor in Montgomery County as required by law and later returned to the General Land Office, definitely puts the Wilson-Strickland Survey south of the projected Henderson-Bullock line of 1841 and within Harrisburg District at the time it was surveyed. Again, Exhibit D-33 which is the official land office map of 1861, shows the District line as run by Henderson and Bullock in 1841 on a north 73 degree east course from the lower left-hand corner of Exhibit D-33, crossing the San Jacinto River at the mouth of Lake Creek. We think this map also shows the Wilson-Strickland Survey within Harrisburg District at the time it was surveyed. We think it is clear from a study of these maps that the Harris District and, County Surveyors, in making the surveys in 1838 (at which time the Wilson-Strickland Survey was made) knew approximately where the then true boundary line was and conducted all of their surveying work south of said line as subsequently located and surveyed by Henderson and Bullock in 1841. It appears from the records without dispute that more than 150,000 acres of land patented on Harris County Surveyors’ field notes in what is now Montgomery County are still recognized as validly patented on said field notes, and none of these -patents had, at the time of the trial, been questioned by the State prior to this present litigation. It also appears from the record without dispute that after the Act of 1840 fixed the present line between Montgomery and Harris Counties east of the San Jacinto River as a line running North 50 degrees East from the mouth of Spring Creek, no Harris County surveyor attempted to make a survey north of said line, but that all surveys theretofore made north of that line by Harris County surveyors have been patented and recognized to this time. But appellants contend that the Wilson-Strickland Survey is void because it cannot be located on the ground. We overrule this contention. In passing upon this question it is necessary for us to keep in mind what we have previously said concerning the various boundary statutes referred to and the maps discussed. According to the evidence of Stuart Boyles, a licensed surveyor, John Carson, Deputy Surveyor of Harrisburg District, in 1838 surveyed and laid in a system or series of surveys in the area involved in this suit. Among them we find the John Owens League on the south; northward through the Anna Matilda Wilburn Survey, which was patented; the Mary Owens Labor, which was patented; the Thos. Robinson League, which was patented but afterwards floated and relocated in Fannin county; the John Owens Labor, which was surveyed but not patented; the Wilson Strickland Survey, which was surveyed as a part of the series and patented; the R. H. Chinn and John Standsberry Leagues, which were surveyed as a part of the series but not patented; C. W. Collins Survey, which was surveyed as a part of the series and patented; and the L. B. Weeden, assignee of L. R. Owens Survey, which was a part of the system and patented. These surveys call for each other. The witness Boyles testified without contradiction substantially that the northeast corner of the John Owens League is well established and recognized and occupied on the ground; that it very closely satisfies the river calls on both its south and north lines; that in his own surveying work on the north line of the John Owens, he found original locations of the original surveyor Carson; that the northeast corner of the L. B. Weeden (L. R. Owens Survey) had been identified and located by the original witness trees; that from these original locations and corners he ran without difficulty the connecting lines of the other surveys in the system and located the Thomas Robinson League on the ground; that the Thos. Robinson League was located by Carson at or about the same time he surveyed and located the Wilson Strickland Survey. From Boyles final notes on the Wilson Strickland Survey he calls to begin at a point (see Exhibit D-33) “on the Thos. Robinson east boundary of a league previously surveyed and 2000 varas from the southeast corner of the Robinson Survey; thence east for a second corner, at 40 vrs. cross creek 4 vrs. wide running southwest 2887 vrs. to a post, a dogwood marked X marked N. 86 deg. W. 7 varas distance ; thence North for third corner 2887 vrs. to a post, a white oak marked X bearing south 39 deg. E. 1.5 vrs. distance; thence west for fourth corner at 500 vrs. cross creek 3 vrs. wide running southwest at 1040 vrs. cross branch 1 vara wide running south at 1080 vrs. cross creek 3 varas running northwest at 1200 varas cross creek 3 vrs. wide running s'outhwest at 1220 vrs. cross branch 1 vrs. wide running south, at 2240 vrs. cross creek 2.5 vrs. wide running southeast, at 2883 vrs. to a white oak marked X for fourth corner of said tract on Robinson’s east boundary of League; thence south for first corner with Thos. Robinson east boundary 582 vrs. cross branch running east at 2487 vrs. cross creek 5 vrs. wide running southwest at 2737 vrs. cross creek 5 vrs. wide running southeast and at 2887 vrs.'to a post — the beginning corner.” But the State contends substantially that the field notes as made by Carson or those com lined in the patent do not sufficiently describe the land so that same may be identified on the ground as a matter of law. We overrule this contention. The general rule is: “The primary objective in locating a survey is to ‘follow the footsteps of the surveyor’; by which is meant to trace on the ground the lines as he actually ran them in making the survey. This following or retracing the surveyor’s footsteps is necessarily a deduction from available evidence, since we have no means of actually following him in the flesh. * * * Of primary importance is what the surveyor himself said in his field notes with reference to where he went and what he did. Consequently when the points he has therein designated as marking the lines he actually traced can be located on the ground with certainty, and as so located present no inconsistency or conflict, the survey must be laid out from those points, and extraneous evidence cannot be admitted to contradict the assertion of the surveyor that he actually went to the points he so designated. * * * ” Humble Oil & Refining Co. v. State, Tex.Civ.App., 162 S.W.2d 119, points 11 and 12, page 132, writ ref. The witness Boyles also testified in detail the manner in which the Wilson-Strickland Survey can be located from its own field notes on the ground. We think a check of the field notes in the original survey with the various maps and plats introduced in evidence satisfied each call for natural objects as reflected in the Strickland original field notes and also satisfied the call for the Thos. Robinson League, whose southeast corner is also the southwest corner of the Mary Owens Labor (see Exhibit D-74), which was patented under the Harrisburg District Survey by John Carson and patented on the notes made by Carson. Boyles said that he had surveyed the area where the Wilson Strickland Survey was located in detail and testified specifically “and in attempting to locate the Wilson Strickland Survey, I will state that the patent along its north line calls for, first, going west, calls for creek, and then it calls for a branch and then it calls for a creek and then calls for a creek again, and then calls for a branch and then calls for another creek; and there may be some other place in Harris County or Montgomery County that such a condition on the ground can be fitted, but if there is I don’t know where it is; but there is a position on the ground in Montgomery County that will satisfy or substantially satisfy the creek crossing calls of the Wilson Strickland patent on the ground. * * ⅝ There is an area in Montgomery County that the creek crossing calls given on the north line of the Wilson Strickland in that patent, and the creek crossing calls given on its west line and near its southwest corner on its south line, that can be very closely checked in 1938 and 1939 to satisfy the calls as reflected in the patent of 1847. That is the position in which I have located the Wilson Strickland Survey, and which also corresponds, as previously stated, to the position on all county maps of Montgomery County, not a few, but all county maps of Montgomery County.” (See Exhibits D-74 and other exhibits herein referred to.) The witness Boyles was County Surveyor of Harris County for about twenty-five years, and he further testified in part: “* * * I can truthfully say that I do not believe there is a survey in Harris County that I have not worked on, either in whole or some part of its boundary. That covers a lot of territory. The county is about sixty miles east and west and about forty miles north and south. * * * “Q. With that familiarity with the terrain and surveys in Harris County, and with the familiarity you have with the land in Montgomery County, as indicated by the surveys you recall having made, do you know of any place at all in either Harris County or Montgomery County, where objects on the ground, such as creek crossings, will fit the patent notes of the Wilson Strickland Survey, other than this area that you have testified about and indicated on this map today? A. I know of none. I have not done the same amount of surveying in Montgomery County that I have in Harris County, but I have covered practically everything from the west river to the east river, insofar as the East San Jacinto and the West San Jacinto, as it might affect the location of surveys in the Conroe Field or Splendora Field; and in Harris County I placed every survey of record in the county on the map; and there is certainly no place there where you can get the same conditions.” We think that a careful study of Exhibit D-33, which is the official land office map of 1861 shows the Wilson-Strickland Survey in the same position with relation to surrounding surveys as the witness Boyles placed it on the ground. To the same effect is Exhibit D-34, which is the official land office map of Montgomery County, marked “Corrected to Date—Gen’l Land Office—-Nov. 19th 1895.” Exhibit D-74, the official land office map of 1901, is to the same effect. The sketch of the Wilson-Strickland Survey on its original field notes shows it to‘lie just east of and adjoining the Thos. Robinson League. The witness Boyles testified at great length and in much detail with reference to the location of the original county boundary line and with reference to the various maps offered in evidence and the various patented areas where the Wilson-Striclcland Survey is located, and it is our view that Boyles’ testimony is not contradicted on any material matter, and we are of the opinion that reasonable minds cannot differ on the fact that the Wilson Strickland Survey lay in Harrisburg District at the time it was surveyed in 1838, and we are likewise of the opinion that it can be located from the ground location of the Thos. Robinson league; that it can be located by the calls of its own field notes, and that its location is established by the official maps and the recognition thereby accorded. If Boyles was an interested witness, still the rule is “when the evidence of an interested witness is direct .and positive on the point at issue, and where there are no circumstances in the •record tending to discredit or impeach his •testimony, a verdict contrary thereto will be set aside, that such testimony will justify an instructed verdict, and that a judgment contrary thereto may be reversed and rendered.” Dunlap v. Wright, Tex.Civ.App., 280 S.W. 276, 279, point 6 for collation of authorities. No testimony was tendered undertaking to locate the Wilson Strickland Survey in any position on the ground other than in the position testified to by Boyles, and as shown on the maps referred to. Is the location of this particular tract of the Wilson Strickland Survey affected by the doctrine of stare decisis because of the opinion of the Beaumont Court of Civil Appeals in the case of Wilburn v. Abercrombie, 125 S.W.2d 408, writ ref.? We think it is. The above suit involved the title and location of a portion of the Wilson Strickland Survey. Roberts, the surveyor referred to in the above opinion, also testified in the case at bar, and he located the Wilson Strickland Survey at the- samé place on the ground that the court found it to be in the above case. Moreover, the opinion, supra, locates said survey on the ground with reference to the location of the small Trevathan Survey and the small S. Y. Sitton Survey, all of which is shown by the various maps and exhibits introduced in evidence upon the trial of this case (see Exhibit D-400), and we think it is clear that the decision places the Wilson Strickland Survey on the ground as it is shown on the maps and exhibits offered in evidence, and also in the same position as testified to by surveyor Boyles. The patent of the small Trevathan Survey .and also of the S. Y. Sitton Survey are both in evidence and both of these patents call for the Wilson Strickland Survey and do not conflict with it. Our view of the record is that there is no testimony in the record that undertakes to locate the Wilson Strickland Survey in any position on the ground other than the position and location testified to by the witness Boyles and as shown on the maps offered in evidence. See also State v. Franco-American Securities, Tex.Civ.App., 172 S.W.2d 731, point 13, writ ref. WOM. But appellants contend in effect that the James Wilson Survey which was made by Wade, District Surveyor of Montgomery County, on January 18, 1839, and recorded in the Transcribed Surveyor’s Records of Montgomery County, is of such prior validity as to extinguish the Wilson Strickland patent. We cannot agree with this contention. It is without dispute that the field notes of the James Wilson Survey were never returned to the Land Office and no patent was ever issued thereon; and it is likewise without dispute that this- survey was made junior to the Wilson Strickland Survey and the James Wilson field notes in Montgomery County were abandoned and the certificate to the James Wilson Survey was floated and the land relocated in Fannin County. The elder grant prevails. See Ledyard v. Brown, 27 Tex. 393. The James Wilson Survey does not appear on any official Land Office map and the field notes were never returned to the Land Office and the Land Office never had any data or information from which they could place it on their official maps. On December 5, 1892, L. Burns, County Surveyor of Montgomery County, wrote the Land Commissioner: “I would like to have information relative to 640 acres (donation) which is called for in Ransom House’s one-third of a league and labor located in this county, the same 640 acres being called for as the James Wilson Survey. A survey in the name of Wilson Strickland appears on the map and patented. It covers the 640 acres alluded to and a part of the Ransom House. Parties have applied for 640 acres as vacant land. I am unable to know whether the same is vacant or not. If the Wilson Strickland patent has been cancelled and the Wilson 640 acres filed on, the field notes and plat would show in your office. You will favor me by examining the field notes and ctf., if any can be found.” The Land Commissioner replied in December of the same year: “Replying to your favor of the 5th inst., I beg to state that the space colored red on the enclosed sketch appears vacant according to the records of this office. Sketch will otherwise explain itself. The patent of the Wilson Strickland has not been cancelled.” Since the Wilson Strickland Survey was recognized by the fact that the field notes and patents of both the Trevathan Survey and Sitton Survey above referred to called for the lines of the Wilson Strickland Survey, and bearing in mind what we have heretofore said concerning the Wilson Strickland Survey, it is clear to us that the James Wilson Survey was not a live and valid survey and that it was junior to the survey of the Wilson Strickland, and therefore the contentions of the State, Davis and Williams with reference to the James Wilson Survey must fail and further discussion of it would be of no avail. We cannot leave the discussion of the above points without saying, absent fraud, that we think justice and common sense demand that the court take into consideration the unsettled condition of the country and the great difficulties that presented themselves in the period covered by the survey, and particularly under consideration here, and we likewise think it pertinent to quote from the opinion of our Supreme Court in Hamilton v. Menifee, 11 Tex. 718, decided by the Supreme Court in 1854, wherein the court was discussing the question raised that the grant was void because it was not made by a surveyor authorized to make same but by a surveyor authorized to survey in an adjoining area. “These discordant surveys show the inherent difficulty in tracing the interior line of the coast league, and the danger to which titles would be exposed by fixing, . after the lapse of twenty years from the grants, any specific line as the unvarying boundary by which titles must stand or fall. The restriction on colonization within the border and coast leagues was established for political purposes. But no line was traced by either the General or State Governments accurately defining the boundaries of the reservation. Under such circumstances, the line was ascertained in various ways, by the authorities invested with the granting power, in territory adjacent to the boundary; and in conformity to these lines, numerous titles were granted, and rights to lands acquired. It would be an act of great injustice to permit titles fairly and honestly granted, without reference to a line or boundary, not traced by the government, but honestly determined upon by the authorities, on the best lights which they had on the subject, to be now impeached, because they are two or three miles within or without what may now be supposed to be the exact line. Exactness was difficult of attainment and should not be insisted upon, to the destruction of right. * * * On these principles, the title of Buentello must be held good, whether it be. a few miles within or without the true boundary. It was supposed by the granting authorities to be without the boundary. No line had been run at the time of the grant, although eight years had elapsed from the Colonization Law.” We think it pertinent to observe here that the land in question had been surveyed and patented for about ninety years before this litigation arose, and it is without dispute that no rights of third parties to the land had intervened from the time of the making of the survey (1838) until the filing of the suit, and absent fraud, as is the case here, we do not think the patent can be questioned at this late date and that it is against public policy to do so. See Stoddard v. Chambers, 43 U.S. 284, 2 How. 284, 11 L.Ed. 269; Elliott’s Adm’r v. Mitchell, 47 Tex. 445. In all events, the Wilson Strickland patent is valid on its face. The rule is “* * * that a patent is not void by reason of irregularity which does not appear upon its face, and that, in the absence of fraud, the judgment of the Commissioner of the General Land Office upon the qualifications of a patentee is conclusive.” State v. Sneed, Tex.Civ.App., writ ref., 181 S.W.2d 983, 987, point 2 for collation of authorities. The Strickland patent is legal on its face. Moreover, if we are mistaken in our view ’ that the land was in Harrisburg District at the time it was surveyed, it is clear that those officials of Harrisburg District and Montgomery County who were dealing with it at that particular time were of the opinion that the land was in Harrisburg District. The appellees’ eleventh counter proposition is: “Even if the land was in Montgomery County at the time the survey was made and even if the survey was invalid because made by a surveyor of the Harrisburg District, this survey and the patent issued thereon were validated by the Legislature of the State of Texas by an Act approved April 16, 1889, General Laws 21st Leg., p. 107, Vol. 9, Gammel’s Laws of Texas, p. 1135. This contention must be sustained. We quote sections 2, 3 and 4 of the Act: “Sec. 2. That all surveys heretofore made by any county or district surveyor, which would otherwise be valid, shall not be called in question on account- of said surveys having been made outside of the proper county or district, but said surveys shall be valif the same as if the said surveyor had jurisdiction in the territory embracing the same. “Sec. 3. The provisions of this act shall not apply to nor affect the rights of third persons heretofore acquired by virtue of any purchase from the State location or surveys made in accordance with the laws in force at the time of such location and survey. “Sec. 4. Whereas there is much confusion and uncertainty in regard to certain lands surveyed in this State, and the rights of actual settlers and purchasers are dependent upon the validity of such surveys, creates an emergency and imperative public necessity authorizing the suspension of the constitutional rule requiring bills to be read on three several days, and demanding that this act take effect and be in force from and after its passage, and it is so enacted.” We think it is clear that the effect of Section 2 validated the survey made by Carson of the land in controversy, even though the land may have been outside of Carson’s district at the time he made the survey. That point is certain unless it can be shown that the rights of some third parties attached to the land prior to the validating act and unless the parties bringing this suit claim under such third parties, and no such condition here exists. It is obvious that the purpose of the validating act of 1889 by the Legislature of Texas was an attempt to see that justice was done and that men would not lose their rights to land simply because of some misunderstanding or uncertainty by reason of some technical provision of the land laws of the Republic and these .validating acts have uniformly been upheld by our courts. The power of our Legislature to pass such validating act is not an open question. Similar validating acts have been upheld uniformly by our courts. “Acts have been passed validating titles issued by the King of Spain, by the government of Mexico and by the state of Texas. Many of the acts validate grants and sales made before the adoption of the constitutional amendment