The Court of Civil Appeals of the Third Supreme Judicial District has certified to this court the following statement and questions:
"`The suit was originally brought in the form of trespass to try title by W.B. Sheppard and West McGown, against Henry Avery, John Avery, Martin Avery, Hugh Avery, Nancy Avery, Albert Avery, Mary E. Avery, and V.R.C. Avery, to recover the east half of the William C. Hays 1280-acre survey in Williamson County, Texas, described in a petition filed August 26, 1891. Another suit was filed September 8, 1891, by Charles Tinsley against Henry Avery, Mrs. Sarah Ann Avery, Mrs. Nora Mayhall and her husband, Albert Mayhall, Thomas Avery, Melinda Avery, James Avery, John Avery, Martin Avery, Hugh Avery, Nancy Avery, Albert Avery, and Mary E. Avery, and against V.R.C. Avery, as guardian of the estates of the said John, James, Martin, Hugh, Nancy, Albert, and Mary E. Avery.
"`This suit was also in form of trespass to try title for a specific 195 acres on the east half of the said Hays survey. The suits were consolidated. Defendants answered by pleas of not guilty, three, five, and ten years limitation, and claim for valuable improvements. The court peremptorily charged the jury to find for the defendants on the ground that under the evidence and admission of counsel for plaintiffs, defendants' plea of the statutes of limitation of three years should prevail. Judgment was rendered on July 16, 1901, accordingly, for the defendants, from which plaintiffs have sued out this writ of error. This case has been before this court heretofore (32 Southwestern Reporter, 791), and also before the Supreme Court (89 Tex. 301 [89 Tex. 301]), but upon different questions.'
"Error is assigned to the trial court's charge, peremptorily directing a verdict for defendants.
"Plaintiffs claimed the land by virtue of location and survey of a valid bounty land warrant for 1280 acres of land, dated December 11, 1846, issued to the heirs of W.C. Hays; the field notes of the location duly filed in the State Land Office the 16th day of February, 1849. The land claimed by defendants is a portion of the Willis Avery grant, which lies outside of Austin's Little Colony, in Robertson's Colony. Defendants are the heirs of Willis Avery, and claim under grant to him as a colonist in Austin's Little Colony, dated November, 1832, a translated copy of which was filed for record in Williamson County, May 19, 1852, and duly recorded, and also duly recorded in deed records of Travis County, *Page 505 August 24, 1840. The grant to Avery covered land in and outside of Austin's Little Colony, — that outside being the land in controversy. A patent was issued to the heirs of Hays, October 14, 1865, by virtue of the location and survey of his bounty warrant. Plaintiffs admitted possession of the defendants was sufficient under the three years statute of limitations, which had been set up as a bar to plaintiffs' suit, and the court, holding that the Avery grant of the land in controversy outside of Austin's Little Colony, having been validated by Act of the Legislature of 1854, was sufficient title under the statute of three years limitation, directed a verdict for defendants. Plaintiffs denied that the Avery grant of the land outside of the Little Colony, covered by their location and survey, could support limitation of three years.
"Opinion. — The court's charge directing a verdict for defendants under the admission of three years possession is the question involved in this appeal, plaintiffs claiming that the Act of 1854, confirming the grant to Avery, did not have the effect of confirming that grant as to the land then located by virtue of the Hays certificate; that the grant to Avery of land outside of Austin's Little Colony was void, and is still void as to plaintiffs' location; and therefore can not support the statute of limitations of three years.
"The act of the Legislature in question was passed February 2, 1854. It is an act confirming certain headrights of land lying on the boundary line of Robertson's Colony and Austin's Little Colony, and reads as follows:
"`Sec. 1. Be it enacted by the Legislature of the State of Texas, that the headrights of land granted to colonists before the 13th day of November, 1835, and lying or being intersected or crossed by the boundary line of Robertson's Colony and Austin's Little Colony, and being part in one of said colonies and part in the other, are hereby declared to be as valid as if such headrights were lying and being wholly within the colony where such headright grants were issued; provided, that nothing herein shall be so construed as to affect the rights of third parties.'
"The Avery grant was a grant to him as a colonist in Austin's Little Colony. At the time the act was passed the Hays bounty warrant was located and the survey duly returned to the General Land Office, thus appropriating the land in dispute.
"The land covered by the Hays location comes clearly within the proviso of the act of validation, and was not affected by the act. It is distinctly excepted from the operation of the act by the proviso. The grant to Avery outside the limits of Austin's Little Colony was void in the beginning, and is still void as to the Hays title, and not such title or color of title as will support the statute of limitations of three years. Land and Mortgage Co. v. State, 1 Texas Civ. App. 620[1 Tex. Civ. App. 620]; Smith v. Power, 23 Tex. 33 [23 Tex. 33]; Hamilton v. Avery, 20 Tex. 630, et seq.; Howard v. Perry, 8 Tex. 262; Griffith v. Sauls, 77 Tex. 635; Suth. on Stat. Const., sec. 222. *Page 506
"As to the location of a certificate of land, and what severs the land from the public domain, see 49 Tex. 488; 26 Tex. 706 [26 Tex. 706]; 51 Tex. 381-383; 82 Tex. 416.
"The dissenting opinion is as follows:
"`The writer does not concur with the majority of the court in holding that the grant to Avery outside of Austin's Little Colony is not such title, or color of title, as will support the three years statute of limitations. It was decided in Hamilton v. Avery, 20 Tex. 630, that so much of the original grant as extended beyond the limits of Austin's Little Colony was void, because the officer who issued the grant had no authority to grant title to lands beyond the limits of that colony; and if the Legislature had not passed the validating act of February 2, 1854, the Avery grant would not be such title, or color of title, as would support the statute of limitations. The act referred to constitutes a legislative grant, and as the Legislature possesses plenary power over all the public lands of the State, the grant was not void because of a lack of power on the part of the Legislature to make such grants. Although others, by reason of prior locations, may have acquired superior rights to all the land covered by the Avery grant, still, as the Legislature had the power to grant to Avery a title to the land that would be binding upon the State, the grant made by the legislative enactment referred to was not absolutely void. It occupied the attitude of a junior patent, and it is well settled that a junior patent or grant will support the three years statute of limitations. Converse v. Langshaw, 81 Tex. 277; Grigsby v. Mays, 84 Tex. 245.
"`But it is contended that the proviso in the act referred to restricts the legislative grant, and excludes from its operation the land in question, because prior to that time W.C. Hays, under whom appellants claim, had made a valid location thereon. It is not believed that this is a proper construction of the act. In so far as the State is concerned, it grants title to all the land embraced within the original Avery grant; and, in the opinion of the writer, the proviso was not intended to restrict the boundaries of the land granted, but to declare and settle the proposition that the grant thus made should be subordinate to the rights which third parties might then have to the land.
"`In conclusion, and as expressing my views in reference to this statute, I make the following quotation from the opinion of the Supreme Court in Hamilton v. Avery, supra: "The construction which alone comports with the intelligence, justice, and impartiality of our Legislature is that the proviso was inserted to prevent misconstruction of and speculation as to the meaning of the act, and to give express notice that it was not their design to affect, impair, or destroy, even if they had the power to do so, any right of a third party which had attached to the land previous to the act, whether such right was perfect or imperfect. They were simply willing to grant Avery the land, but not to give him a preference over anyone else who had rights in it."
"`W.M. KEY, Associate Justice.' *Page 507
"So much of the facts as are Stated in the opinion of the majority of the court we find to be true.
"The Court of Civil Appeals of the Third Supreme Judicial District of the State of Texas, through its Chief Justice, certifies to the Supreme Court the following question:
"Was the majority of the court correct in its construction of the statute set out in the opinion of the court; or should it be construed as stated in the dissenting opinion?"
The construction placed upon the act of the Legislature of February 2, 1854, by the majority opinion is correct.
If the proviso to that statute be omitted, the act would be a grant by the State of Texas for the land which had been previously located by the Avery grant, and would have the legal effect of a junior patent. But with the proviso inserted in the act, it does not constitute a grant of the land as against the location and survey under the Hays bounty warrant, made prior to the enactment of the law, because it is specially provided that the act shall not be construed so as to "affect the rights" of such persons. In other words, as to the survey which had been made upon this land prior to the passage of that act, the act itself was to be considered as if it had never passed. It granted nothing as against the owner of that location and survey. If it were held that such a grant constituted color of title as against the Hays location it would "affect the rights" of the parties holding under that survey, which the terms of the statute itself forbid.