On Motions for Rehearing. Both sides have filed motions for rehearing — the appellants asking a rendition in their behalf, as per the first prayer in their original brief here, while the appellees, in turn, urge the setting aside of *Page 132 the former reversal by this court, and that the judgment of the trial court be now in all things affirmed.
Both motions have been carefully considered, and much time and labor consumed in the reconsideration they severally invoked.
But this court, being unconvinced of error in its original disposition, is constrained to adhere to it.
It may not be amiss, however, to thus append a restatement of some of the considerations, upon which both dispositions here have been arrived at, in view of another trial below upon fact-issues pointed out in this court's two opinions herein, to-wit:
The evidence reasonably tends to show:
(1) That the Texas Trunk Railroad Company had been issued Land Certificates Nos. 326-549, inclusive, on March 17, 1882, at which time that Company was in receivership.
(2) That on March 21, 1882, the Receiver executed a transfer of Certificate No. 386 in the name of such Company, but as Receiver, reciting that he had received $100 therefor, and that he was by a decree of the district court authorized to convey such certificate to Yandell Ferris, his heirs, etc.
(3) That upon the same day, by a transfer in identical terms, the Receiver transferred Certificate No. 387 to Geo. H. Schley.
(4) By Patent dated November 29, 1886, the State of Texas transferred one of the sections here involved to the Texas Trunk Railroad Company, or assigns, by virtue of Certificate No. 386, issued March 17, 1882.
(5) By Patent dated November 24, 1886, the State of Texas transferred the other section, here involved, likewise to the Railroad Company, or assigns, by virtue of Certificate No. 387.
(6) These described transfers of certificates, and the patents, were each filed for record in Galveston County on January 8, 1887.
(7) The Receivership was removed to the Federal Court in January, 1883. No inventory there shows any land certificates listed as belonging to this Railroad Company. But, pending such receivership, all of the assets of the Railroad Company were sold at Receiver's sale; however, no reference was made to land certificates, and no claim was ever made that the Receiver, shown by the recited transfers of Certificates Nos. 386 and 387, as officially executing the same, did not account to the court for the proceeds coming into his hands.
(8) The inference of fact — questions of legal validity aside — is strong, if not inescapable, that, more than sixty years ago, the Receiver of the Railroad Company sold the Land Certificates Nos. 386 and 387, and received the consideration therefor, and properly accounted therefor, and that the same was applied to the uses and benefit of the Railroad Company.
(9) As formerly indicated, it was not shown that a judgment of the district court of Kaufman County was entered in the minutes of that court, confirming such sale.
(10) However, from the evidence as a whole, it is deemed that these ensuing results would not have been unreasonable inferences of fact, to-wit: (a) That the transferees of Certificates Nos. 386 and 387 located those certificates upon the land here involved; (b) that they thereby became interests in land; and (c) that, in virtue of such certificates, and their location, the State of Texas parted with the title to the land by force of executing the patents. The patents were uncontrovertedly shown to have been delivered to the predecessors of appellants, and the purpose and effect thereof, presumably at least, was to divest the State of the title to the land.
(11) The evidence was likewise undisputed that, at the date of these patents, it was the practice of the General Land Office, where the titles to certificates were involuntarily transferred, as in the case of Receiver's sales, to patent the land based on such certificates, as was done in this case, in the name of the Railroad Company, or its assigns.
(12) The inference could also be drawn by a jury that, in executing and delivering these patents, no title, either legal or equitable, was intended to be transferred to the Railroad Company, but that it was intended to be transferred to the holders of the involuntary transfers.
(13) And, if so, the legal title then passed to Ferris and Schley, to be by them held for the benefit of the lawful assigns of the Railroad Company. *Page 133
(14) Such legal title at least passed to the heirs of Ferris and Schley, to whom these patents were manually or physically delivered.
(15) There being evidence from which it could further be inferred by a jury that the legal titles passed to Ferris and Schley, respectively, and there being no evidence that there were any other persons entitled to demand that Ferris and Schley should hold the same in trust for them, it would follow that they took the entire title. Indeed, Article 1291, Vernon's Texas Civil Statutes, provides that every estate in land that is granted shall be deemed a fee simple, if a less estate do not appear to have been granted, conveyed, or devised, by construction or operation of law.
(16) In other words, it was not necessary for appellants to go back to the patents to show prima facie title to this land. Clearly, if the patents had been made out in their names, it could not convincingly be contended that those to whom they were delivered by the State did not establish such a title in themselves, by adducing the patents.
(17) By proving the practice of the General Land Office, at the time of the dates of these patents, to make out, in cases of involuntary transfers of certificates, the patents in the names of those to whom the certificates were originally issued, or their assigns, the appellants proved (or at least offered evidence from which it could be found), prima facie, that title passed, and was intended to pass to him to whom each of the patents was delivered.
(18) The evidence that the patents were delivered to Ferris and Schley, and by them recorded, along with the involuntary transfers of the certificates, and that they located these certificates, is evidence from which the jury could infer that the title which passed out of the State passed into those to whom the patents were delivered. It is to be presumed, however, in such circumstances, that the Commissioner of the General Land Office did his duty, and required evidence that those to whom he delivered the patents were entitled thereto.
(19) The evidence at least tended to show that all of the Railroad Company's certificates were disposed of, and there seems to have been no contention that the Receiver had not accounted for all funds coming into his hands. Such evidence was at least sufficient to raise an issue of fact over whether the Railroad Company had lost title to all its land certificates during the pendency of the receivership.
Both motions for rehearing are overruled.
Overruled.