Turner v. Rogers - Case Law

Walker, J.

The appellee and her husband, E. G. • Rogers (since dead), brought this suit in the District Court against Turner & Hefner to quiet their title, and possession of the land in controversy. It is claimed in the assignment of errors that the petition is defective; whilst it alleges a title by grant from the government, it fails to give any notice of the present existence of such grant, and does not aver the loss of the same, or the record thereof.

This objection might, perhaps, be sustained if there

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were not other facts alleged in the petition which, we think, are sufficient to support the claim of the appellees to the land. They hold the land under a survey made upon the headright certificate of Ensign B. Smith, and they aver that the Congress of the Republic of Texas, by a joint resolution, directed the Commissioner of the General Land Office to issue a patent upon this survey, and these are facts which appear beyond controversy. Smith’s headright was located in 1839; the appellee holds under a continued possession and cultivation of the land for thirty years prior to the entry of the appellants. The right of entry to those laboring under no disability was certainly tolled long before the appellants entered upon the land; and under our law the right of entry is not only tolled, but a right of action accrues to one who has been ousted of such a possession. Our statute confers this right after ten years uninterrupted adverse possession. (Louis v. San Antonio, 7 Texas, 288.)

But we think the averments in the petition are sufficient to authorize the appellees in making proof of a grant, and there was no error in submitting this question to the jury. (Taylor v. Watkins, 26 Texas, 688.)

The facts in this case would authorize the presumption of a grant against the State. There was a survey under a certificate which, if defective in any wise, the Congress of the Republic made good by their joint resolution. This may be regarded as a legislative grant.

We might write a lengthy opinion in this case, but deem it totally unnecessary. The judgment of the District Court is affirmed.

Affirmed.