
    ALLEN et al. v. DRAPER et al.
    (No. 6041.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 29, 1918.
    Rehearing Denied June 19, 1918.)
    1. Public Lands <@=>175(1) — Disposal op State Lands — “Appropriated Lands.”
    Where by virtue of a land certificate legally issued a survey was made and properly and promptly filed in the county and general land office, the land surveyed became “appropriated lands,” which could not be covered by another certificate thereafter in view of Const, art. 14, § 2, providing that all general land certificates heretofore or hereafter issued shall be located, surveyed, and patented only upon vacant and unappropriated public domain.
    2. Public Lands <@=>175(1) — Conflicting Surveys — Rights of Parties.
    Surveys Nos. 207 and 208, location of which covered a portion of a prior school survey, were void to the extent of the conflict because forbidden by Const, art. 14, § 2 and the award of No. 208 and the patent to 207 passed no right or title to the land in the prior survey.
    3. Adverse Possession <@=>7(3) — Rights Which may be Destroyed — Award of School Land.
    An award of a school survey, coupled with proof of occupancy, payment of a part of the purchase money, interest, and taxes, is such a right as can be destroyed by adverse possession, notwithstanding title will remain in the state until it gives a patent.
    4. Adverse Possession <@=>73 — “Color of Title from the Sovereignty of the Soil.”
    An award of a school survey located in a prior survey of which there had also been an award is not “color of title from the sovereignty of the soil,” reguired to< give a superior right by throe years’ adverse possession under statute.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Color of Title.]
    5. Adverse Possession <@=>73 — “Color of Title from the Sovereignty of the Soil.”
    ■ AYliile a patent could not convey paramount title to land located within a prior school survey, it constituted “color of title from the sovereignty of the soil,” within the three-year statute of limitations, sufficient to enable patentees to secure a right thereto superior to one having an award of prior school survey.
    6. Trespass to Try Title <@=>56 — Improvements.
    If the improvements did not increase the value of the property, there can be no recovery therefor.
    7. Trespass to Try Title <@=>58 — Improvements.
    There should be no allowance for the value of improvements where they are completely offset by the rents.
    8. Judgment <@=>253(1) — Conformity to Pleading — Amount Demanded.
    In trespass to try title, defendant, who im» pleaded his warrantor, could not recover from him an amount in excess of that pleaded, although a greater price was proven.
    Error from District Court, Jim Hogg County ; Y. W. Taylor, Judge.
    Suit by B. R. Allen and others against J. J. Draper and others. There was a decree against plaintiff named, and he brings error.
    Affirmed in part, and reversed and rendered in part.
    John L. Dannelley, of Laredo, for plaintiff in error. J. E. Leslie, of McAllen, and Ball & Seeligson, of San Antonio, for defendants in error.
   ■SWEARINGEN, J.

This is a suit in trespass to try title, as well as for damages, by A. C. Allen, Guy Allen, L. M. Allen, B. R. Allen, Rhoda E. Allen, Jessie L. Sprague, joined by her husband, F. W. Sprague, Susie G. Wright, joined by her husband, W. B. Wright, E. Grace Laffoon, joined by her husband, W. I. Laffoon, and Nellie P. Geiser, joined by her husband, Clarence Geiser, against Henry Edds, Sirs. J. J. Draper, J. J. Draper, and his guardian, J. C. Draper. A jury returned an instructed verdict, upon which decree was rendered against appellant and in favor of all the appellees for the land claimed by them. Brought to this court on writ of error, but for convenience parties are styled appellants and appellees.

Originally B. R. Allen filed two separate suits, one against Henry Edds for 232½ acres of land, particularly described by metes and bounds, the other against Mr. and Mrs. J. J. Draper and J. C. Draper, the guardian of J. J. Draper, for 126% acres of land, also particularly described by metes and bounds. In both original suits the defendants answered by pleas of not guilty, limitation by one, three, five, and ten years, estoppel and improvements and payment; specially alleged the portion claimed, and disclaimed as to balance, and impleaded their warrantors.

The following facts were established: Appellants own the award of survey No. 162. Henry Edds owned the award of survey No. 208. Francis Smith was his warrantor. The Drapers owned the patent to survey No. 207. By virtue of land certificate No. 89, legally issued to Howard <& Wade, survey No. 162 was surveyed, the survey properly and promptly filed in the county and in the general land office in 1877, by reason of which steps the 640 acres of land contained in survey No. 162 ceased to be unappropriated public domain, but became lands appropriated to the public school fund. This was in 1877. In 1879 land certificate No. 1/519 was issued to B. S. & F. and was located on surveys 207 and 208; both were, as reguired by law, surveyed, and the surveys promptly filed in the county and in the general land office. Thus in 1879 survey No. 207 became appropriated land of which the assignee of the certificate B. S. & F. No. 1/579 was entitled to own; * the alternate survey No. 208 became.- 'appropriated to the public school fund^, ' School survey No. 162 was awarded to appellant’s grantor in 1908. School survey -No. 208 was awarded to Leon Martinez in] 1906, which award Henry Edds owns. Survey 207 was patented in 1906, and is owned by the Drapers. The court by its decree has determined that the two parcels of land herein sued for are located in survey No. 162, tlie 126% acres being also within the boundaries described in survey No. 207, and the 232½ acres being within the boundaries described in survey No. 208. The evidence is sufficient to support this finding by the court. This proof was offered by appellant to sustain his contention. The question of the exact location of the land and the question of whether or not there is a conflict in the location of the three surveys is therefore eliminated. The only assignment is that the peremptory instruction to find for appellees is error.

The only contentions raised by appellant’s propositions requiring consideration are the following: First, that appellant had the superior right to the disputed lands because survey No. 162 was surveyed prior to surveys No. 207 and No. 208, upon which prior survey the Constitution forbade the location of another certificate. Second, that appellees’ inferior right did not become the superior right by three years’ adverse possession because the award to purchase school survey No. 208 was not color of title from the sovereignty of the soil, and because the patent to No'. 207, a later survey, was not the color of title required by the statute of three years limitation.

The first contention herein made, namely, that appellant’s prior survey gave him the superior right does not seemi to be denied by appellees, and it has been often so decided by our appellate courts. The fact that survey No. 162 was surveyed and the survey filed in the county and in the general land office made the lands surveyed appropriated lands, which could not be covered by another certificate thereafter. Mills v. Needham, 28 Tex. Civ. App. 547, 67 S. W. 1097; Gilbert v. Mansfield, 38 Tex. Civ. App. 300, 85 8. W. 830.

Because the location of the surveys No. 207 and No. 208, made after survey No. 162, covered a portion of survey No. 162, to the extent of the conflict, they were void because forbidden by article 14, § 2, of the Constitution of Texas, and the award of No. 208 and the patent to No. 207 passed no right or title to the land in No. 162. Ellwood v. Stallcup, 57 Tex. Civ. App. 343, 122 S. W. 906.

The second contention made, namely, that appellees did not show a superior right in themselves to the conflicting land by adverse possession for three years under color of title, presents a more serious question.

Appellant has never received a patent to srihool survey No. 162, but has only an award com oled with proof of occupancy, payment of a po rt' *..f the purchase money, interest, and taxes. This is such a right as can be destroyed-by adverse possession, notwithstanding the fact that the legal title is in and will remain in the state until it executes and delivers the patent therefor. Paterson v. Rector, 127 S. W. 561, affirmed in 104 Tex. 708; Parker v. Brown, 80 Tex. 555, 16 S. W. 262; Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039. The opinion by Justice Rice in Hamman v. Presswood, 120 S. W. 1052, is apparently not in harmony with the cases followed and cited by us.

It is admitted by appellees and the evidence shows that there was no adverse possession held by appellees sufficient to sustain the one, five, or ten years limitation. The issue is therefore reduced to the three-year statute of limitation. Appellee Henry Edds did not have a patent to school survey No. 208, but only an award, coupled with proof of occupancy, payment of a part of the purchase price, interest, and taxes. He had precisely the same evidence of right to school survey No. 208 as appellant had to school survey No. 162. It has been held, we believe uniformly and consistently, that an award is not color of title from the sovereignty of the soil, which the statute requires to give a superior right by the three years’ adverse possession. Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1166; Johnson v. Knippa, 127 S. W. 905, § 2, and authorities therein cited; Morrow v. Conoway, 157 S. W. 430, § 3; Garrison v. Arnett, 126 S. W. 611; Wolffarth v. De Lay, 142 S. W. 617-622. Appellee did not acquire any right by limitation to that 232⅛ acres of land described in survey No. 208, which was located in survey No. 162.

Appellees, the said Drapers, claimed the 126% acres as a part of survey No. 207, but actually located on survey No. 162, under a regular patent from the state. This patent did not convey to him the paramount title to the part of the land in conflict with survey No. 162, because of the priority of the survey of No. 162; but the patent is color of title from the sovereignty of the soil and is sufficient to enable the Drapers, the appel-lees, by three years’ adverse possession of the conflict land, to secure to themselves a right thereto superior to the right of appellant Allen, though of course the Drapers, by this three years’ limitation, cannot affect the right of the state to forfeiture for nonpayment. Gullett v. O’Connor, 54 Tex. 416; Grigsby v. May, 84 Tex. 240-249, 19 S. W. 343; Horton v. Halff, 147 S. W. 735; Hulett v. Platt, 49 Tex. Civ. App. 377, 109 S. W. 207; Smith v. Power, 23 Tex. 34; Payne v. Ellwood, 163 S. W. 97; League v. Rogan, 59 Tex. 432; Anderson v. Jackson, 69 Tex. 346, 6 S. W. 575; Galan v. Town of Goliad, 32 Tex. 776; Williamson v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Houston Oil Co. v. Wm. M. Rice Ins. Co., 194 S. W. 415.

There are several decisions by Texas Courts of Appeals that might be construed to hold that a patent to land appropriated by a survey made prior to the survey for which the patent issued is void, because forbidden by the Constitution, and being void such patent is not the color of title from the sovereignty required by the three-year statute of limitation. But these decisions do not seem to have been approved by the Texas Supreme Court, and seem to overlook the purpose of the statutes of repose. 2 C. J. 169, 170, § 41. Some of these cases are: Kieth v. Guedry, 114 S. W. 392, reversed by the Supreme Court, 103 Tex. 160, 122 S. W. 17, 125 S. W. 5; Gilbert v. Harris, 109 S. W. 392; Grayson v. Peyton, 67 S. W. 1074; Sheppard v. Avery, 28 Tex. Civ. App. 479, 69 S. W. 83; Lamberida v. Barnum, 90 S. W 698; Eyl v. State, 37 Tex. Civ. App. 297, 84 S. W. 607 (three-year statute of limitations does not seem to be involved).

The assignment of error is sustained. Ap-pellees Draper should recover on their plea of three years’ limitation all of the 126% acres described in appellant’s petition against them, and should also recover all costs incurred by them in this behalf. Appellant Allen should recover from Henry Edds all of the 232¼ acres alleged by appellant to be claimed by Edds and described in said petition, together with all costs of this suit except the costs incurred by appellees the Drapers, which are adjudged against appellant.

Upon the issue of improvements and rents pleaded by Edds and appellant, it is suggested by appellant that they be offset. An examination of the statement of facts fails to reveal that the 232⅛ acres was increased in value by reason of the two lines of fence built by Edds, though it seems it would cost from $130 to $150 a mile to build new fences like them. If the improvement did not increase the value of the property, there can be no recovery for improvements. Herndon v. Reed, 82 Tex. 652, 18 S. W. 665. However, if the improvements were made in good faith, as the evidence shows and as is admitted by the agreement that there is no issue of fact, and did improve the value of the land as much as the new fence would cost, the amount would be less than $140— 1,752 varas at 8 cents per vara. The value of the rents was admitted by Henry Edds in his testimony to be a little more than $162 — ■ 232½ acres at 19 cents per acre per annum for 1911, 1912, 1913, 1914, and 15 cents for 1915 and 1916. Therefore the value of the improvements is completely offset by the rents. We therefore adjudge that appellee Henry Edds take nothing by Ms plea for the value of the improvements. Appellant has waived all claim for any excess rents; therefore it is adjudged that appellant take nothing by his suit for rents. The judgment of the trial court is affirmed as to the appellees the Drapers, and is reversed and here rendered as to Henry Edds.

Henry Edds impleaded his warrantor, Francis Smith, and alleged a payment of $2,500 cash on December 29, 1910, for 640 acres of land in survey No. 208, alleging that the deed contained a covenant of express warranty. Francis' Smith admits the sale and warranty in his answer. The evidence contained in the synopsis of the deed introduced at the trial shows that Edds paid $5 an acre for the land bought from Francis Smith, and bought 640 acres. Edds cannot recover an amount in excess of that pleaded, even though a greater price was proven. 640 acres at $2,500 is $3.90 for each acre. $3.90 per acre for ■ 232½ acres is $905.75. We therefore adjudge that Henry Edds do recover from Francis Smith, the warrantor, the sum of $905.75, together with interest at the rate of 6 per cent, per annum from December 29, 1910, until November 21, 1916, date on which the decree was rendered herein, and shall recover interest at 6 per cent, per annum from November 21, 1916, on said amount of principal and interest due on said date. As to all other appellees not hereinabove disposed of the judgment of the trial court is affirmed.

Affirmed in part; reversed and rendered in part. 
      
       127 S. W. 561.
     
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