
    DAGLE et al. v. SABINE VALLEY TIMBER & LUMBER CO. et al.
    (No. 2474.)
    (Supreme Court of Texas.
    May 1, 1918.)
    1. Public Lands <&wkey;176(2) — Land Grants AND 'CERTIFICATES — TRANSFER OR .ASSIGNMENT- — SUB SEQUENT PATENT.
    A subsequent patent inures to the transferee of a right to a land grant or the assignee of a land certificate, though the transfer or assignment does not expressly show an intention to convey the land or contain a covenant of warranty, and neither the heirs of the transferor or assignor in such case have title or color of title to support limitation of three years as to the land.
    2. Trespass to1 Try Title <&wkey;25 — Stale Demand as. Defense.
    Legal title to land cannot.be defeated by a plea of'stale demand.
    3. Appeal and Error <&wkey;1010(l) — Review-Findings of Fact.
    Findings of fact below supported by evidence in the- record will not be disturbed by the Supreme Court on writ of error.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. L. A. Cagle and others against the Sabine Valley.Timber & Lumber Company and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals (149 S. W. 697), and plaintiffs bring error.
    Judgment of Court of Appeals reversed, and judgment of the district court affirmed.
    J. M. Sanders, of Center, and Oliver J. Todd, of Beaumont, for plaintiffs in error. Tom C. Davis and Jno. T. Garrison, both of Houston, Greers & Nall, of Beaumont, Baker, Botts, Parker & Garwood, of Houston, and Davis, Davis & Davis, of Center, for defendants in error.
   GREENWOOD, J.

The plaintiffs in error recovered a judgment in the district court against defendants in error for 23,-935,000 square varas of land in Shelby county, except three small tracts adjudged to the W. R. Pickering Lumber Company. The Court of Civil Appeals of the Sixth Supreme Judicial District of Texas reversed this judgment on the ground that defendants in error had established title to some interest in the land, under the statute of limitations of three years, and remanded the cause, for the reason that the court was unable to say what interest should have been recovered by one of the plaintiffs in error, who was held not shown to be barred. 149 S. W. 697. The writ of error was granted because it was made to appear, on application by plaintiffs in error, that the judgment of the Court of Civil Appeals practically' settled the case.

The defendants in error claim the land under conveyances from certain heirs of Archibald. Smith, who was an immigrant of the year 1826, and who had become entitled, before the Revolution, to a survey of a league and labor of land. The tract in controversy was patented by the state to the heirs of Archibald Smith on May 5,1849. Prior to February 4, 1838, Mark Hailey had become the transferee of Archibald Smith’s right to the land, and, on that day a certificate was issued to Mark Hailey, as assignee of Archibald Smith, for a league and labor, under which the tract in controversy was located and surveyed.- Our decision of the controlling questions in this case depends on the determination of the legal effect of the patent to the heirs of Archibald Smith, after Smith, in his lifetime, had transferred his right to the land to Mark Hailey, and after Hailey had procured the certificate and had caused the land to be located and surveyed thereunder, as assignee of Smith.

It is contended in behalf of defendants in error: (1) That, since there is no proof of any warranty -in connection with the transfer or assignment from Smith to Hailey, the right in the land acquired by Hailey and his heirs was purely equitable, and is now barred as a stale demand; (2) that, the patent having invested the heirs of Archibald . Smith with the legal title, those claiming under them had title or color of title to support three years’ limitations.

There are expressions in the opinions of this court which seem to lend some support to the proposition that it is only where a transfer of a' right to a land grant, or where an assignment of a land certificate, expressly shows an intention to convey the land to be acquired thereunder, or contains a covenant of warranty, that the legal title under the patent will inure to the transferee or as-signee. Barroum v. Culmell, 90 Tex. 94, 37 S. W. 313; Satterwhite v. Rosser, 61 Tex. 166. The cases cited actually decided nothing more than that covenants of warranty or express language manifesting an intent that the transferee was to have the land, when ' located, had the effect to make the patent inure to the benefit of the transferee. These decisions are unquestionably sound, but it by no means follows that a contrary effect must be given a patent to one who has transferred his right to land, or his land certificate, because of the absence from the transfer of a covenant of warranty or of express language such as is above mentioned.

In our opinion, the very nature of a transfer of the right to a grant, or of a transfer of a land certificate, plainly, implies the purpose of the transferor that the land itself and the final title shall belong to the transferee, and to fail to give a subsequent patent to the transferor, or' his heirs, the effect of inuring to the benefit of the transferee would be to defeat the essential object of the transfer.

Section 10 of the general provisions of the Constitution of the Reffublic of Texas guaranteed the title to a league and labor of land to any citizen who held a transfer of the right to same from a colonist. The right of the colonist was hut an inchoate right to the land, and it cannot now be questioned that such right was the subject of transfer, and that a transfer was fully protected by section 10. Johnson v. Newman, 43 Tex. 628. It appears to be held generally that, where a grantor quitclaims an inchoate or incomplete right to land, the subsequent confirmation or completion of that xight, in the name of the grantor, as by patent, inures to the benefit of the grantee. 10 R. C. L. 680; 16 Cyc. 695; note, 35 L. R. A. (N. S.) 1188. This conclusion is founded on the law of estoppel as well as on the doctrine of relation. Landes v. Brant, 10 How. 348, 13 L. Ed. 449; Massey v. Papin, 24 How. 364, 16 L. Ed. 734; Wholey v. Cavanaugh, 88 Cal. 136, 25 Pac. 1112. The Texas cases sustain the same conclusion.

In Merriweather v. Kennard, 41 Tex. 281, one Eordtran proved merely that an unconditional certificate had been issued to him as assignee of one Merriweather. The court held:

“The patent was issued in 1848, long after the death of Merriweather; and though it issued to him, it inured to the benefit of Ford-tran, as his assignee.”

The Supreme Court declared in Humphreys v. Edwards, 89 Tex. 516, 519, 36 S. W. 333, 434, that the opinion of Chief Justice Light-foot stated the grounds on which their conclusions were based. In that opinion, it was held that if an administrator’s sale passed the title of an estate to a land certificate, “and then such certificate was located by the purchaser upon the land in controversy, even though the patent should subsequently be issued in the name of George P. Humphreys, the original grantee, or his heirs, the superior title would inure to the benefit of the purchasers of such certificate, and their ven-dees.” The decision is followed in Morgan v. Baber, 40 S. W. 27, and in Broussard v. Cruse, 154 S. W. 350. To the same effect is Davis v. Bargas, 12 Tex. Civ. App. 59, 33 S. W. 548.

We cannot affirm the holding that the individuals who were the heirs of Archibald Smith at the date of the patent acquired any personal right thereunder.

In Fishback v. Young, 19 Tex. 515, where the land certificate in controversy was issued to the heirs of one Cornelius, it is said:

“They [the children] have no personal or individual right to the grant. They can claim only as representatives of the deceased. * * * Let the grant be issued as it will; if the issue be to persons representing, in form or in fact, the deceased, it must inure to the benefit of all interested in the estate.”

The patent made complete the title which had its origin in the certificate issued to Mark Hailey, by virtue of a right previously transferred to him. “The title relates to its origin, and must take the impress of its character from it.” The patent therefore inured to the benefit of Mark Hailey as the assignee of Archibald Smith. Weldet v. Lambert, 91 Tex. 521 to 526, 44 S. W. 281 p Fields v. Burnett, 49 Tex. Civ. App. 446, 108 S. W. 1050. It follows that neither the heirs of Archibald Smith nor any claimant under them had “title or color of title” to support limitation of three years. ,

It is clearly stated in Grigsby v. May, 84 Tex. 254, 19 S. W. 343, and in Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1143, that there can be but one regular chain of transfers from the sovereignty of the soil to a grant, and that “a conveyance made by the original owner, after he had already conveyed whatever right he had, is collateral, and can never connect a person claiming under it with the sovereignty of the soil.” This results from the want of power in the original grantee or his heirs to convey the title granted by the state, after having executed a transfer designed to invest the purchaser with that very title, and after the title under the grant has inured to the purchaser.

The opinion in Grigsby v. May expressly affirms the decision in Gould v. West, 32 Tex. 339, of the question under consideration, which decision is expressed in the following language:

“The ancestor having disposed of hfa right in his lifetime, and the title, when the patent issued, having inured to the benefit of his ven-dee, the heir had neither title nor color of title by a regular, or an irregular, consecutive chain of transfer from the sovereignty of the soil. Without such title, or color of title, the plea (i. e., of three years’ limitation), is unavailing.”

Bearing in mind that we have already determined that at least after the issuance of the patent Mark Hailey and his. heirs had both the legal and equitable title to the land, we but reaffirm Baldwin v. Root, 90 Tex. 546, 40 S. W. 3, followed in Illies v. Frerichs, 11 Tex. Civ. App. 575, 32 S. W. 917, and other eases, when we decide that those holding under the heirs of the patentee had neither title nor color of title to support limitation of three years.

The .plea of stale demand, of course, could not be interposed to defeat the legal title of plaintiffs in error. Duren v. H. & T. C. Ry. Co., 86 Tex. 291, 24 S. W. 258.

As to the defenses of bona fide purchasers and presumption of a reconveyance from Mark Hailey to Archibald Smith, the case at most presents only questions of fact which have been determined against defendants in error, and which, on this record, we would not be authorized to disturb. Herndon v. Vick, 89 Tex. 475, 35 S. W. 141; Baldwin v. Goldfrank, 88 Tex. 258, 31 S. W. 1064; Poland v. Porter, 44 Tex. Civ. App. 334, 98 S. W. 217.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed. 
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