In 1835 the Government of Texas issued to Leona a colonial grant of a league of land, which is a valid and subsisting grant in Angelina County, Texas. In 1838 the Board of Land Commissioners of Nacogdoches County issued to Leona a certificate for one labor of land. Leona died in 1840. Some one forged a transfer of said certificate from Leona to Cooper, dating the same 1847. On December 4, 1874, Cooper procured from the Commissioner of the General Land Office the issuance of a duplicate certificate to Leona for a league and labor of land, when in fact there never was any original certificate issued to Leona for a league and labor. In 1875 said duplicate certificate was located on the land in controversy and in 1883 Cooper conveyed said duplicate certificate and land located thereby to Purinton, to whom in 1884 the land was patented, said patent being, in 1884, regularly recorded in the Land Office and in Wichita County, Texas, where the land is situated. There is a regular chain of title from the patentee, Purinton, to defendants in error herein. In July, *Page 695 1890, one Lee, claiming the rights of the heirs of Leona, sued defendants in error herein in trespass to try title in the District Court of Wichita County, Texas, to recover the land in controversy herein, it being included in said patent. In that suit the State of Texas intervened and sought to cancel said patent on the ground that the duplicate certificate under which it was located and patented was issued without authority, and that therefore it and the patent were void. The District Court of Wichita County, on the 21st of November, 1891, rendered a judgment in said cause in favor of the State, canceling the patent and decreeing the land to the State, from which judgment the losing parties prosecuted an appeal to the Court of Civil Appeals, which court affirmed such judgment on December 13, 1892.
Pending such appeal, on January 20, 1892, DeCordova located a valid land certificate owned by him on a part of the land included in said Purinton patent, and caused the field notes to be returned to the General Land Office in accordance with law, and afterwards, DeCordova having conveyed the land and certificate thus located to J.J. Faulk, a patent was issued to the latter therefor on December 21, 1892.
On the 28th day of December, 1892, defendants in error herein, being the owners of a valid land certificate, located the same on the land included in the patent to Faulk and caused same to be regularly surveyed and the field notes returned to the Land Office in time provided by law, but no patent has been issued thereon.
Relying upon said patent issued to him, J.J. Faulk and his co-plaintiffs in error herein sued defendants in error herein in trespass to try title to recover the land included in said patent to Faulk and in said survey made by defendants in error December 28, 1892; and upon the facts above stated the District Court of Wichita County rendered judgment* in favor of plaintiffs in error against defendants in error for the land included in said patent to Faulk, which judgment being appealed from by defendants in error the Court of Civil Appeals reversed same and rendered judgment that plaintiffs in error take nothing by this suit and that defendants in error go hence without day and recover of plaintiffs in error all costs expended herein. In reversing and rendering the judgment the Court of Civil Appeals proceeded upon the theory that the location made by DeCordova was void because section 2 of article 14 of the Constitution of Texas, providing "that all genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office," prohibited location upon the land covered by the patent to Purinton, though such patent had been held void by said decree of the District Court of Wichita County in favor of the State, until such decree was affirmed by the Court of Civil Appeals as aforesaid.
Plaintiffs in error have brought the case to this court, assigning as *Page 696 error the action of the Court of Civil Appeals in reversing the cause and rendering judgment against them.
It is conceded by both parties that under the authority of Winsor v. O'Connor, 69 Tex. 571, the land covered by the void patent to Purinton was "land titled" and not subject to location under said constitutional provision prior to the rendition of the judgment by the District Court of Wichita County canceling said patent. But it is contended by plaintiffs in error that upon the rendition of such judgment it ceased to be "land titled," and became immediately subject to location notwithstanding the appeal.
Defendants in error contend that the location by DeCordova was unauthorized, because said constitutional provision withdrew the lands therein mentioned from location and, since the facts show that the land in controversy once belonged to the class so withdrawn, they could not, without a change in the Constitution, be made subject to location by a decree of the court canceling the Purinton patent and awarding the lands to the State.
It was not the purpose of the Constitution to validate or affect in any manner the class of titles therein mentioned as between the holders thereof and the State, but merely to prevent such holders from being disturbed by new locations so long as they continued to hold under such titles. It did not inhibit the bringing of a suit by the State against the holder of such a title to cancel same and recover the land; and we are of opinion that when the land is recovered by the State from such a holder in such a suit, it ceases to belong to the class of lands contemplated by said provision, and its location is no longer prohibited thereby.
It is next contended by defendants in error, that if the decree of the court canceling the Purinton patent and awarding the land to the State removed it from the class of lands protected from location by said constitutional provision, still such decree did not have that effect until it was affirmed on appeal, and since the DeCordova location was made before that date it was prohibited by said provision and void. It seems to be the general, if not the universal rule, that where a decree of a court of competent jurisdiction fixes the status or title of property, strangers to the decree may safely deal with same upon the assumption that such decree, unless it should be in some legal proceeding set aside, correctly fixed, as between the parties thereto, such status or title at the date of its rendition. The rendition of the decree of the District Court of Wichita County in favor of the State having fixed the status of the land as not being "land titled" within the purview of said constitutional provision and established the title as being in the State, DeCordova, holding a certificate whereby the State authorized him to locate upon such lands if such decree spoke the truth, had the right to deal with the land upon that assumption, subject of course to the contingency of the decree being set aside by some legal proceeding.
It may be true that if DeCordova, relying upon his location, had undertaken *Page 697 to recover the land from defendants in error pending the appeal from the judgment in favor of the State, he could not have used such judgment pending such appeal as evidence of the facts therein recited; but the rule of evidence would have been equally harsh upon him if no appeal had been taken and he had located upon the land before the expiration of the time allowed for writ of error and a writ of error had thereafter been sued out. Railway v. Jackson, 85 Tex. 605.
In either case the rule of evidence might have resulted in the loss to him of his right to the land if he allowed his case to go to trial before the determination of the appeal or writ of error; but that does not establish that the right does not exist. Before the passage of the law authorizing the correction of the certificate of acknowledgment of a married woman by suit, such acknowledgment though in fact formally made, could not be established by any evidence except the certificate of the notary, and therefore the purchaser would lose the land, not from any want of title, but because the law allowed only one mode of proof. Therefore, after the statute was passed, certificates previously made could be corrected by suit, since such suit only gave new evidence of a pre-existing right. Article 4057 of the Revised Statutes has no application to a case where, as here, the title is forfeited by a decree against the parties claiming that they are entitled to the notice therein mentioned. The judgment is notice to them and it would be absurd to so construe the statute, if it has any application to this class of titles at all, as to require the Commissioner to give them further notice.
From what has been said it results that we are of opinion that the judgment of the Court of Civil Appeals should be reversed and the judgment of the trial court be here affirmed, and it is so ordered.
Judgment of Court of Civil Appeals reversed. Judgment of trial court affirmed.
Delivered June 15, 1896.
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