Gullett v. O'Connor

Citations

• 54 Tex. 408
• 1881 Tex. LEXIS 42

Syllabus

<p>1. Practice — Disclaimer.— Though a formal judgment should be rendered in the district court on the disclaimer of a party defendant, as to such defendant, yet if the cause proceeds to trial and judgment without further notice of the defendant who disclaims, the supreme court will, on appeal, regard the action as having been dismissed as to him, notwithstanding the failure of the record to show the fact.</p> <p>2. Locative certificate.—An unconditional he.adright certificate, issued by the board of land commissioners for Jasper county, January 9, 1840, and approved by the traveling board, which during the same year was surveyed, and the survey returned to the general land office, conferred upon the owner thereof a title to the land covered by the location superior, to that resulting' from a junior location and patent made and issued in 1877.</p> <p>3. Same — Statute construed.— The right to appropriate public land under such certificate, became by its location, survey and return to the general land office, vested before the repeal of the act authorizing a patent, which vested right has never been forfeited or annulled.</p> <p>4. Same.—If further legislation was necessary to authorize the issuance of a patent on such location, the failure to legislate did not affect the right secured by the prior location and survey, and cannot aid a patent issued on a subsequent unauthorized location of the same land by another party.</p> <p>5. Patent—Constitutional law.—Though the issuance of patent on the junior location was in violation of the constitution, the patent is voidable only. It may be cancelled and annulled: 1st. At the suit of a party having a prior equitable title. 2d. The legal title vested by the patent may, in a proceeding in equity, be divested out of the patentee, and vested in the prior and better equitable right; but no one but he who is connected with, or holds and claims under, the prior equitable title, can impeach the patent issued on the junior location