Whitehead v. Foley

Citations

• 28 Tex. 1

Syllabus

<p>A disclaimer by the defendant as to part of the land sued for is not to the prejudice of the plaintiff, and the allowance of such disclaimer by the court, after the parties announced themselves ready for trial, is, therefore, not an error, for which the judgment in favor of the defendant for the remainder of the land will be reversed.</p> <p>If a disclaimer, by which a defendant diminishes the extent of the boundaries which he claims, be an amendment, after the parties announce themselves ready for trial, it may yet be filed. (Paschal’s Dig., Art. 54, Note 243.)</p> <p>It is not now an open question in this court, that an entry and occupation of land by a trespasser, claiming to hold under the location and survey of his valid head-right certificate, operates a disseizin of the true owner of the land to the extent of the boundaries of the survey.</p> <p>' The adverse possession of the trespasser in such case is not limited to the land actually occupied by him, but is co-extensive with the limits of his survey.</p> <p>The 1st section of the act of the 19th January, 1841, reads as follows: “The commissioner of the general land office is hereby authorized and required forthwith to make out patents upon all claims which have been, or may-hereafter be, returned as genuine and justly entitled by the different boards of land commissioners appointed under ‘ An act to detect fraudulent land certificates,’ whether the same have been obtained in strict accordance with law or not, and the commissioner of the general land office is hereby authorized to employ two additional clerks, who .shall bo allowed the same salaries and pay as other clerks of the land office.” (Hart. Dig. Art. 2021.)</p> <p>Land certificates which,were returned as genuine .by the traveling board of land commissioners, but which were not recommended for patent by said board, on account of the want of the oath required by the 12th section of the land law of December 1,1837, (Paschal’s Dig., Art. 4140,) were