De Cordova v. Bliss , 12 Tex. Civ. App. 530 ( 1896 )


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  • Suit of trespass to try title for 320 acres of land by appellees, George Bliss, James H. Dunham and Isaiah V. Carpenter against Elizabeth Wintz and W.F. De Cordova. Pending the suit Mrs. Wintz died, her death was suggested and her heirs made parties defendant.

    Mrs. Lorena Wintz, executrix of the will of Mrs. Elizabeth Wintz, asked to be made a party defendant, and she and De Cordova answered by pleas of not guilty. De Cordova by cross suit claimed that he was the owner of the land; that plaintiffs had ejected him from the land, and asked for judgment against them and for restitution of the premises. Judgment was rendered for plaintiffs for the land, from which this appeal is taken by W.F. De Cordova.

    The facts are as follows:

    1. The land in suit was patented by patent dated March 17, 1859, to S.L. Hohenthal, which patent contains the following recitals: "Do by these presents grant to S.L. Hohenthal, assignee of Catherine Kellner, his heirs or assigns forever, three hundred and twenty acres of land situated and described as follows:" Then follows a description of the land, and the patent proceeds: "Known as survey No. 909, in district No. 3, by virtue of certificate No. 357, issued by the commissioner of Fisher Miller's Colony, on the 8th day of June, 1850; transferred by said Catherine Kellner to J.H. Carstens, July 12, 1851; by said Carstens transferred to F. Berkemier, January 28, 1852; and by said Berkemier transferred to J. De Cordova on the 31st day of March, 1857; by said De Cordova transferred to H.F. Fisher on the 3rd April, 1857; and by said Fisher transferred to said Hohenthal August 27, 1858."

    2. Plaintiffs introduced deeds showing complete chain of transfers for the land in controversy from the patentee, S.L. Hohenthal, down to themselves.

    3. Defendant W.F. De Cordova is son and heir of J. De Cordova.

    4. Defendant De Cordova introduced certified copy, from the Land Office, of the certificate by virtue of which the land was patented, issued June 8, 1850, to Catherine Kellner, describing the land; also certified copies from the Land Office of transfers of the certificate mentioned in the patent from Catherine Kellner to J.H. Carstens, dated July 12, 1851; from Carstens to F. Berkemier, dated January 28, 1852; from Berkemier to J. De Cordova, dated March 31, 1857. No other testimony was offered.

    Opinion. — The court, after finding the foregoing facts, as a conclusion *Page 533 of law thereon found that the plaintiffs were entitled to recover the land.

    This conclusion is assigned as error.

    It was the duty of the Commissioner of the General Land Office to issue patent to the assignee of the certificate in the name of the assignee "upon such assignee presenting a sufficient and properly authenticated chain of transfer assignment or obligation for title or a power of attorney showing a transfer from the original grantee to the assignee." O. W. Dig. 1274 P.D. 4294, sec. 3959.

    The Commissioner had the power to pass upon the transfer presented to him and issue the State's title to the land, to the assignee showing a chain of transfer to him. Without proof it would not be presumed that the Commissioner had exceeded his authority and acted without legal transfers presented to him. The patent vested the title to the land in the patentee and there has been no effort to show that there is any equity against it superior thereto, no effort to show that the recitals of transfer are incorrect. So far as they are traced by the testimony they are shown to be true, and it would not be presumed that the recital of the transfer by J. De Cordova is untrue without any proof. Miller v. Brownson, 50 Tex. 592; Mitchell v. Bass,26 Tex. 376. No ground is shown why the patent should be avoided. The commissioner had authority to issue it and no reason is assigned to invalidate his act, or avoid it. League v. Rogan,59 Tex. 428; Johnson v. Eldridge, 49 Tex. 507 [49 Tex. 507]; Stevens v. Geiser, 71 Tex. 140 [71 Tex. 140]; Miller v. Moss, 65 Tex. 180; Todd v. Fisher Miller, 26 Tex. 239; Martin v. Brown, 62 Tex. 488.

    The judgment of the court below is affirmed.

    Affirmed.

    Writ of error refused.

Document Info

Docket Number: No. 1450.

Citation Numbers: 34 S.W. 146, 12 Tex. Civ. App. 530

Judges: COLLARD, ASSOCIATE JUSTICE.

Filed Date: 2/19/1896

Precedential Status: Precedential

Modified Date: 1/13/2023