Smyth v. Veal

Opinion by

Our opinion is that there is no error in the judgment of the court below.

The facts of this case are somewhat peculiar, and we will state them in a few words. In 1839, Wm. Anglin located his headright certificate of one third of a league, on land which is now in Limestone county. In 1845 he conveyed a part of this land to Samuel Andrews, with full covenants of warranty, describing the land sold by metes and bounds, and adding as a part of the description that it was a part of his headright of one-third of a league of land. In 1857 he conveyed the remainder in like manner to Abram Anglin. But the land was not patented — the certificate still remaining in the Land Office. Some years afterwards (the date not given) Wm. Anglin discovering that he had located the certificate upon an older grant, purchased the entire third of a league from the owners of the older grant, and it passed to his vendees under his covenants of warranty, and they and their vendees hold it to this day.

The plaintiffs in this suit are the present holders and owners of the land under title. It has come to them through a ■ number of mesne conveyances — all describing it as above set forth, and all duly recorded in Limestone county.

But in 1871, Wm. Anglin, the original grantor of the certificate, sold it to the defendant, who located it upon lands in Wichita county. Now the plaintiffs claim that, by reason of the premises above set forth, they are the owners, not only of the land in Limestone county, but also of the certificate; and that, as the owners of the certificate, they are entitled to the land in Wichita county upon which it has been located by the defendant.

They set forth their claim in this proposition : “When the owner of a land certificate has it located upon land, and sells the land so located, referring to the land so sold as located under such certificate he thereby parts with his title to the certificate, and cannot after-wards abandon such loeatiou, or soli the certificate in prejudice of the rights of his former vendee.” And they refer us to Pasch. Dig. Arts 4301, 4302; Johns v. Pace 26 Texas, 270; Smyth v. Tucker, 25 Texas, 594; Baggett v. McKenzie, 28 Texas, 581, and some other au*267thorities. This proposition is in the main correct, and is fairly deducible from the cases cited by counsel. When a man locates a certificate and sells the land before the title is perfected, there is implied in the very act of sale, an undertaking on his part that he will do no act to prevent the perfecting of the title, to the land sold. There is therefore an implied agreement, that the vendor will not raise the certificate thus leave the land vacant in the hands of the purchaser. Or if the land thus located and sold should happen to be covered by an older or better title, the purchaser would have the right to demand that the certificate should not be raised, and he be left at the mercy of the holder of the superior title. And the purchaser might file his bond or deed in the land office, so as to notify the commissioner of his purchase, and thus prevent his vendor from raising the certificate. Baggett v. McKenzie, 28 Texas, 581. And this would be so, whether he had actually bought the certificate or not, and whether the certificate was mentioned in his deed or not. And it would be so, not because, in buying the land, he necessarily bought the certificate, but because the certificate may be, and in fact almost always is, necessary to enable him to get the benefit of what he has bought. And as here the certificate happens by mistake to be located upon an older title, the court would treat the purchaser of the land as the assignee of the certicate, if it were necessary to his protection, so as to enable him to locate it elsewhere. So general — indeed so nearly universal is this connexion of the certificate with the title to the laud, that die impression has became general, that a sale of the land is a sale of the certificate. But that it is not always, and necessarily so, I think may be easily shown.

Let us suppose that A. locates a certificate and sells the land to B. and it turns out to be a forged certificate. According to the theory of appellants, the vendor would have a good title to the certificate, though he might have very little interest in the land. Now if A. should afterwards locate a genuine certificate upon the same land; who would be the owner of this second certificate? Certainly B. did not buy it, yet a court of equity would doubtless hold him entitled to the benefit of it, by reason of his purchase of the laud. Now if B. in this last case should not only keep the land and the second certificate, but should bring suit against A. for the value of the first certificate, which he failed to get because it was void, his *268position would very nearly resemble that of the plaintiffs in this suit. They have the tract of land which Anglin located. They admit that; and they have it by reason of the fact-that Anglin bought the superior title, which passed to them. But upon their own theory, Anglin in buying the.superior title, bought also the certificate which was part of that title, so that they have also a certificate for a third of a league. Yet they are now suing, not indeed for the value of the first certificate, because it is not void, but they sue for that certificate, and for the land upon which it is located. Thus we reach the rather startling result, that by the purchase of one-third of a league of land, the plaintiffs acquired a right tó two land certificates, each for one-third of a league; and also to the two tracts of land located in different counties, and each tract containing one-third of a league. A result so extraordinary, must suggest a doubt as to the correctness of the principle. And a majority of the Commissioners hold that, when Anglin for the benefit of his vendees, bought in the superior title, he was discharged from all the obligations of his contract, and might dispose of the certificate as he chose.

The decisions referred to by appellants, deny the right of a vendor to float the certificate, only in the event such act on his part, would work an injury to his vendees; but when such act would not prejudice the vendee, we see no reason why it may not be done. In the case before us, Anglin sold the land, not the certificate; and after he had procured for his vendees a good title, we think his sale of the certificate, could work no harm to them unless they can demand, not merely a good title to the land; but a title by virtue of a particular certificate.

But there is another view of the case which we all agree must be fatal to the claim of appellants. The legal title to the certificate was in Anglin when be sold to appellee. There is no evidence in the record that appellee had any knowledge of the claim of appellants. And the record in Limestone county of the deeds under which appellants claim could not operate as constructive notice to the purchaser of the certificate which had all the time remained in the land office. If the plaintiffs or their vendors had desired to give notice of their claim to their certificate, they should have filed it in the land office. Baggett v. McKenzie, 28 Texas, 581.

Anglin having the legal title to the certificate and the possession (for he seems to have withdrawn it from the land office), a purchaser *269from him without notice would take a good title. Law v. Berry, 22 Texas, 372.

We have not deemed it necessary to express any opinion concerning the charges of the court on the subject of limitation.

If there was error in those charges, it was immaterial, as the judgment could not properly have been otherwise than it was. We think, therefore, that it should be affirmed.