Wheeler v. Styles

Citations

• 28 Tex. 240

Syllabus

<p>A pre-emption claim, under the 1st section of the act of February 13, 1854, “donating to actual settlers on vacant public domain one hundred and sixty acres of land,” could only be valid to the extent of one hundred and sixty acres. (Paschal’s Dig., Art. 4341.)</p> <p>If a purchaser of land have paid part of the purchase-money, and taken his vendor’s bond to make title so soon as a patent from the State could be procured by the vendor under his pre-emption claim, and the vendor have no pre-emption right to the land and fails to obtain the patent for it, in consequence whereof he is unable to perform his part of the contract, the purchaser is entitled to recover back the purchase-money he has paid, with interest thereon.</p> <p>In the absence of any allegation of fraud, the measure of damages in a suit by a purchaser to recover purchase-money paid by him on an executory contract for land to which his vendor has no title is the amount of money paid and interest thereon.</p> <p>If a person have assumed to sell land which is part of the unappropriated public domain, the purchaser, on discovering that such person has no title to the land, may repudiate the contract, recover any purchase-money he has paid under it, and secure the land to himself directly from the State, and this notwithstanding he obtained possession of the land under the contract of purchase. The seller cannot, under such circumstances, be deemed to have so placed the purchaser in possession as to create between them the relation of vendor and vendee.</p> <p>The case of Spier v. Laman, (27 Tex., 205,) referred to, and the ruling approved, that a party entering upon public land under contract of purchase from another is not thereby precluded, on ascertaining that his vendor’s title was worthless, from claiming adversely to his vendor his own preemption upon the land.</p> <p>The purchaser, under such circumstances, was under no obligation to give to the vendor the right of obtaining title to the land un