Lubbock v. Binns (20 Tex. Civ. App. 407, 1899)

PLEASANTS, Associate Justice.

Appellant, F. R. Lubbock, sued appellees to recover 640 acres of land patented to O. V. Hglow; and T. H. Lubbock intervened, claiming the land sued for as the sole heir of the patentee. The defendants, besides demurrers to the petition of the plaintiff and that of the intervener, pleaded in reconvention, claiming to be the rightful owners of 530 acres of the land covered by the Hglow patent. The defendant Herndon, who owned the land patented to John Bailey, averred that the patent to this land does not correctly give the field notes as originally fixed by the surveyor; that said field notes cover about 265 acres of the land embraced in the Hglow patent; and that the field notes were changed without authority, and by mistake, by the Commissioner of the Land Office, and other field notes substituted for the original and placed in the patent; and he prayed for correction of this error, for the recovery of the land, and for the cancellation of the Hglow patent to the extent that it conflicted with the Bailey as originally surveyed. The defendants, Coane and others, who claimed the land covered by the Batchelder patent, made like defense and prayed as defendant Herndon, making similar allegations as to the original survey for the patentee, and the unauthorized change of the original field notes, and the insertion of other than the original, in the patent to Batch-elder. The intervener asserted title to the Hglow as against both plaintiff and defendants, denying that the plaintiff’s vendor ever acquired title to the land through sale made, as contended by plaintiff, by the administrator of the estate of C. Y. Hglow.

Hpon trial of the cause by the judge of the court, without a jury, on May 23, 1898, judgment was rendered for the defendants by which they were decreed all of the land embraced in the Hglow patent, save 90 acres, and this was decreed to the intervener, T. H. Lubbock; and from this judgment both the plaintiff and the intervener appealed to this court.

The case as presented to us, as between the plaintiff and the defendants, is briefly this: The Bailey, Koppman, Batchelder, and Jeffries constitute a block of surveys made in 1838 and 1839 by H. Trott, the then surveyor of Harris County. The Hglow survey was made by Tipton Walker on the 9th day of July, 1845. It calls for the Bailey and Batch-elder as its northern boundary. The attached sketch taken from a map of Harris County, and being the only map of that county recognized and used in either the General Land Office or the county of Harris from 1840 to 1884, will show the relative position of the Hglow and the Bailey and Batchelder and Koppman to each other, and to the adjoining surveys at the time of the survey of the Hglow:

Sketch from Harris District Map, dated 1847, showing the positions of Jas. Bailey and O. V. Uglow Surveys as they originally appeared on the Map G-en’i, Land Oeipice, June 15, 1892

The evidence is uncontradicted that the maps in the General Land Office from 1840 to 1884 all place the Bailey west of and adjoining the Koppman and Jeffries surveys, and the Hglow survey south of and adjoining the Bailey and Batchelder surveys, and west of and adjoining the M. B. Walters or B. Connor survey.

The evidence is also uncontradicted that at the time of the survey ■ of the James Bailey and the Batchelder surveys by Trott, in 1838 or 1839, the Koppman had not been surveyed, and was not surveyed for five or six months after these surveys were made; and that the Bailey survey began at the northwest corner of the Jeffries, which is ,now the southwest corner of the Koppman, and ran south for the proper distance along the west boundaries of the Jeffries and the Connor, and thence west, and thence north, and thence east to the beginning; and that the Batchelder then, as now, ran from the northwest corner of the Bailey west for the proper distance, and thence south parallel with the west line of the Bailey to its southwest corner, and thence by a right line to the southwest corner of the Bailey; and that in 1846, without any evidence of another survey of either the Bailey or the Batchelder having been made, the chief draughtsman of the Land Office changed the beginning corner of the Bailey from the northwest corner of the Jeffries to the northwest corner of the Koppman, and by this change of the beginning of the Bailey, both it and the Batchelder were pushed north; and in accordance with this change in the original position of their surveys patents were issued to Bailey and to Batchelder respectively; and their patents have remained as they were issued, without effort, so far as the record of this case discloses, on the part of either of the patentees, or any one claiming under them, to compel the Commissioner of the General Land Office to issue patents for the land actually surveyed for the patentees, or otherwise to have the error of which they complain corrected, until the institution of this suit,—a period of fifty years. There is no evidence of notice to the locator of the TJglow, save that which perhaps may be imputed to him from the records of the surveyor’s office, and which as we have seen is in conflict with the map of the county then existing, that the survey he caused to .be made would conflict with either the Bailey or the Batchelder.

It is not questioned that it was the privilege of the patentees of these two surveys to have had the lands covered by their surveys patented to them, and they might have compelled the Commissioner, by the aid of the judiciary, to have corrected the patents issued to them so as to embrace the lands to which by their locations and surveys they had acquired an inchoate title. Kor can it be questioned that a court of equity may give relief to a patentee in a case such as this, against a junior patentee or purchasers under him, when the relief can be afforded in consonance with the principles and maxims upon which those courts administer justice between man and man. And the question for our decision is, is this a case in which a court of equity should render to the complainants the relief prayed for? and this question, we think, should be answered in the negative. It is proper to say here that one of the defenses pleaded by the plaintiff is loches on the part of the patentees. That the owner of the TJglow certificate acquired by his location, survey, and patent a complete and valid title to the land covered by the patent, and voidable only at the suit of the owners of the Bailey and Batchelder certificates, and those claiming under them, notwithstanding the fact that his location was upon titled lands, is, we think, indisputable. Vide Gullitt v. O’Connor, 54 Texas, 408. And we think it is equally indisputable that the patentees under the Bailey and Batchelder certificates, notwithstanding the fact that the lands covered by their patents are not the same as those embraced in the surveys made under their certificates, acquired and still have indefeasible titles to the lands patented to them. Vide 6 Texas, 511; 16 Texas, 440; 54 Texas, 416; 59 Texas, 430; 30 Texas, 273; 46 Texas, 292; 66 Texas, 371; 26 Texas, 376; 71 Texas, 141.

There is no complaint that the appellees have not the quantity of lands for which the certificates to Bailey and Batchelder called; nor is there anything in the evidence tending to show that the land covered by the Uglow patent is of greater value than that covered by the patents issued to the owners of the Bailey and the Batchelder certificates.

The appellees, as we understand their pleadings, have not disclaimed title to any portion of the lands covered by the patents to Bailey and Batchelder, nor does the decree divest them of title to any portion of said lands, but all parties by agreement went to trial upon the issue of boundary between the Uglow and the Bailey and Batchelder patents. For over fifty'- years those claiming under the Bailey and Batchelder patents have acquiesced in the correctness and validity of those patents, and in the meantime rights have been acquired by third parties, under the Uglow patent, without notice of any claim of right to any portion of the land covered by that patent, asserted by one claiming under surveys made under and by virtue of the Bailey or Batchelder certificates. The appellant has been owner, by purchase, of the Uglow land since 1855,—for over forty years before the institution of this suit,—and now there is no public domain upon which the Uglow certificate could be located; and by the law as it now is the certificate could not be relocated if there were unappropriated land upon which to place it; but had those holding under the Bailey and Batchelder patents not delayed so long to have the errors in their patents corrected, those errors might have been corrected, doubtless without serious injury or loss to the holders under the Uglow patent.

Under all the facts disclosed by the record before us, the security of land titles, and justice and right as well, it seems to us, would forbid a court of equity to grant the prayers of the appellees.

The appellant, F. R. Lubbock, deraigns his title to the land in controversy under a sale made by the order of the probate court of Harris County in the administration of the estate of C. V. Uglow, deceased. The intervener insists that under said order of said court the certificate by virtue of which the land in question was patented, and not the land, was sold. At the time of the sale the land had been patented; and if it be true that the certificate, and not the land, was the subject of the probate sale, the purchaser acquired no title to the land. Vide Bast v. Dugan, 79 Texas.

In November, 1844, the probate court of Harris County, in the matter of the estate of C. V. Uglow and Theresa Uglow, deceased, made the following order:

“It appearing to the court that all the personal property belonging to these estates has been set off for the support of the minor child of the deceased, in terms of the law, as also the residence of the deceased, and by the petition of the administrator, 0. Herman Jaeger, for a sale, that there are debts against the succession which ought immediately to be paid; it is ordered, considered, and adjudged by the court, that the administrator, C. H. Jaeger, proceed to sell all the property belonging to this estate for cash, with appraisement, first giving twenty days notice by posting written advertisements in three public places within this county, one of which must be at the courthouse door, of the time, place, and terms of sale, as also the property to be sold, selling on the first Tuesday of the month of January, 1845, and a true return of such sale to make within twenty days thereafter.”

And on the 5tli day of August, 1845, the following appraisement of property of said estate was made by order of said court, and reported to the court by the appraisers, to wit:

"One certificate, 640 acres, Ho. 110, issued in Harris County, C. V. Uglow............................................$20 00

"One certificate, 640 acres, Ho. 109, issued in Harris County, to T. Uglow, administratrix to S. D. Smith.................. 20 00

“One certificate, 960 acres, Ho. 1470, patented to S. Putman .... 20 00

"Subscribed and sworn to before me August 5th, 1845.

"A. P. Thomas,

“Chief Justice Harris County.

"Jno. Fitzgerald,

“Johh Levi,

“A. S. Thtjrsdon.”

And on the same day the administrator made report of sales as follows:

"One certificate, 640 acres, Ho. 110, issued in Harris County, to C. V. Uglow, sold for..................................$13 33-£

"One certificate, 640 acres, no 109, issued in Harris County, to T. V. Uglow, administratrix of S. D. Smith, sold for........ 13 33-J

"One certificate, 960 acres, Ho. 1470, patented to D. Putnam, sold for................................................. 26 66|

"The foregoing is a correct account of the sales made by me.

(Signed) "C. Hermah Jaeger,

"Administrator.

"Sworn to and subscribed August 25th, 1845.

■ "E. J. Baker, Clerk.”

This account of sale was approved by the court and ordered entered upon the records, and the amount of money realized from the sales charged to the administration. And the administrator duly executed to the purchaser, C. W. Adams, a deed of conveyance to the land covered by the patent offered in evidence by the appellant, and in which deed occurs the following recitals: