Baggett v. McKenzie , 28 Tex. 581 ( 1866 )

Moore, C. J.

—It cannot be seriously contended that the bond from Watson to Baggett for the two hundred and twenty-three acres of land in Dallas county conferred upon Baggett any title or interest in the land subsequently located by McKenzie in Johnson county. McKenzie was neither a party nor privy to the bond, nor is there the slightest evidence to show that he had any knowledge of the existence of such an instrument until after his purchase of the certificate from Watson, and its location upon the land in Johnson county. The plaintiff, Baggett, insists that, as Watson’s certificate was filed upon the land described in his title bond at the date of his contract, the bond for title to the land from Watson vested in him a title to the certificate, although the certificate is not referred to or mentioned in the bond. But if this proposition be conceded it does not strengthen his case. He left the certificate subject to the control of Watson, and cannot complain if thereby he have lost the interest in it which he might otherwise have asserted. If his title bond gave Baggett an interest in the certificate, had he exercised the slightest diligence or reasonable prudence, he would have had it duly authenticated and deposited in the general land office, with the field-notes of the survey, and thus have prevented Watson from lifting it from the land, or procuring the unlocated balance of the certificate which he sold to McKenzie. Having failed to do this, he must be postponed to the subsequent purchaser, who in good faith has acquired the better right to the certificate. But his bond was not for the certificate, and neither refers to nor mentions it; and when it is lifted from the land, if he can maintain a title to the certificate, it is by estoppel rather than under the title bond for the land upon which it had been located, and he could claim no title of this sort against a third party who has in good faith purchased and has a bona fide and legal title to the certificate; much less can he sustain such a claim against other lands located by such purchaser under the certificate.

There is no error in the judgment, and it is

Aeeirmed.