Sewell v. Laurance , 2 Posey 376 ( 1882 )

Opinion.—As to first objection the record contains enough to give the supreme court jurisdiction, and that is sufficient. In the affidavits the affiants state they are parties defendant to above-entitled cause. Motion to dismiss should be overruled. The first assignment of error questions that part of the charge to the effect that land certificates are personal property, and pass by delivery. This is certainly correct. See Stone v. Brown, 54 Tex., 330; Johnson v. Newman, 43 Tex., 640; Cox v. Bray, 28 Tex., 247; Randon v. Barton, 4 Tex., 292. These cases, however, refer as a general rule to unlocated certificates.' As to that part of the charge which says it is immaterial whether the certificate was located on land or not we think is not correct. As soon as certificates are located the right of the owner attaches to the land, and all subsequent transfers must be in writing.

The appellants insist that Mrs. Sewell was a married woman, that it was her separate property, and whether real or personal, the conveyance must have been in writing and acknowledged by her upon privy examination. Pasch. Dig., 1003. Also see Womack v. Womack, 8 Tex., 307. Admitting the contract was not binding upon Mrs. Sewell, and that she might within a reasonable time have had it set aside upon restoration of the purchase money, still it does not follow that the right would survive to her descendants for an indefinite period of time.

The case may be summed up thus: The plaintiff made this purchase in March, 1857. The verdict establishes the fact that he paid the consideration, and for more than twenty years he was occupied with his endeavor to perfect the title, which he finally accomplished bi' buying out and thus quieting some opposing claims. A quarter of a century after the original purchase the heirs of the vendors, who have done nothing, come forward and ask-that the land, with its accumulated value from expense and labor of plaintiff, be decreed to them because their grandmother did not sign a deed and acknowledge it properly; and they do not propose to make the slightest return to plaintiff. To state such a proposition is to answer it. Hart v. Turner, 9 Tex., 385; Mills v. Alexander, 21 Tex., 154.

Affirmed.