154 S.W. 347
BROUSSARD et al. 
v. 
CRUSE et al.
Court of Civil Appeals of Texas. Galveston.
January 7, 1913.
Rehearing Denied January 23, 1913.
Page 348
        Appeal from District Court, Hardin County; L. B. Hightower, Judge.
        Trespass to try title by Mary Broussard and others against W. W. Cruse and others. Judgment for 
defendants, and plaintiffs appeal. Affirmed.
        Walter S. Parker, of Kountze, and Dougherty & Gordon and Jno. M. Conley, all of Beaumont, for 
appellants. Greer & Minor, of Beaumont, and R. S. Neblett, of Corsicana, for appellees.
        REESE, J.
        This is an action of trespass to try title by Mary Broussard and others against W. W. Cruse and 
others to recover two tracts of land of 640 acres each patented to David J. Johnson, assignee of Thomas 
Hughes. A trial, without a jury, resulted in a judgment for defendants, from which plaintiffs prosecute this 
appeal. There are no conclusions of fact and law. The evidence, however, is substantially without conflict, 
from which we deduce the following conclusions of fact, which are in the main taken from appellants' brief, 
with some additions taken from appellees' brief, verified from the statement of facts:
        "(1) On December 7, 1838, the board of land commissioners of Jasper county issued to Thomas 
Hughes a conditional headright certificate for 1,280 acres of land, and numbered 504, second class.
        "(2) The conditional headright certificate granted to Thomas Hughes on December 7, 1838, was 
reported by the clerk of the land board issuing said certificate along with other conditional certificates, and 
on June 26, 1840, the traveling board entered an order as to said conditional certificates in the following 
language, to wit: `The annexed and foregoing claims being conditional, we, the commissioners, can only 
report that they stand fair on record subject to an act of a future Congress.' It does not appear that any 
further action of any kind was had with reference to the said conditional certificate.
        "(3) On February 18, 1850, the board of land commissioners of Liberty county issued to Thomas 
Hughes an unconditional head-right certificate for 1,280 acres of land; the said unconditional certificate 
being based on the said conditional certificate issued on December 7, 1838.
        "(4) On March 31, 1851, Thomas Hughes transferred and assigned both of said conditional and 
unconditional certificates to Reuben B. Vest.
        "(5) The unconditional headright certificate issued to Thomas Hughes was located in two surveys, in 
Freestone county, by Reuben B. Vest, and the certificate and field notes of the two surveys were returned 
to and filed in the General Land Office; and after patents were refused on these surveys the certificate 
was withdrawn from the Land Office by Reuben B. Vest.
        "(6) Thomas Hughes died in 1851, and the appellants [plaintiffs] are his heirs.
        "(7) On August 29, 1856, the Legislature of the state of Texas passed a special act authorizing and 
directing the Commissioner of the General Land Office to issue to Thomas Hughes a certificate for 1,280 
acres of land. [Sp. Laws 1856, c. 281.]
        "(8) On October 9, 1856, the Commissioner of the General Land Office, acting under and by virtue of 
said special act, issued to Thomas Hughes a certificate for 1,280 acres of land numbered 5061/5062.
        "(9) On October 20, 1859, Reuben B. Vest transferred and assigned to Henry D. Patrick the 
certificate for 1,280 acres of land issued on October 9, 1856, to Thomas Hughes.
        "(10) On February 4, 1860, Henry D. Patrick transferred and assigned the certificate for 1,280 acres 
of land issued to Thomas Hughes on October 9, 1856, to David J. Johnson.
        "(11) The certificate for 1,280 acres of land issued to Thomas Hughes on October 9, 1856, under the 
provisions of the special act, was located upon the two surveys of land involved in this suit by David J. 
Johnson, and patents were issued to the two surveys to David J. Johnson, assignee of Thomas
Page 349
Hughes, on May 1, 1863, and March 8, 1881, respectively.
        "(12) The unconditional headright certificate issued to Thomas Hughes on February 18, 1850, was 
presented to the Commissioner of Claims for approval in 1859, and on December 6, 1859, the same was 
rejected and not approved by the Commissioner of Claims. It appears from the record that the certificate 
was presented to the Commissioner of Claims for approval by J. W. Warren, and that one W. B. Johnson 
claimed to be the owner of the certificate at that time.
        "(13) By agreement of parties in evidence, it was agreed that appellants [plaintiffs] are the only 
heirs of Thomas Hughes; and that the appellees [defendants] have and hold all of the right, title, and 
interest in and to the two surveys of land in controversy that was ever held by David J. Johnson.
        "(14) Plaintiffs' original petition, upon which the case was tried, was in the statutory form of trespass 
to try title, and the defendants' first amended original answer, upon which the case was tried, contained a 
general demurrer, a general denial, statutes of limitations of three, four, and ten years."
        Unconditional certificate No. 155, issued to Thomas Hughes by the board of land commissioners of 
Liberty county, was located in Freestone county, a part of which location was in conflict with older 
surveys. The certificate and field notes, together with the transfer of the certificate from Hughes to R. B. 
Vest, which was indorsed on the back of the certificate, were withdrawn from the Land Office by one 
Middleton in 1856, to be presented to the committee of the Legislature; and it is sufficiently shown by 
correspondence of about that date that, as the certificate had not been reported by the county clerk as 
required by law, this was done in order to procure a special act curing this defect. Middleton was acting for 
Vest, assignee of this certificate. The certificate was so presented to the legislative committee, and the 
special act certificate, when issued, was delivered to Middleton. This special act certificate was located in 
Hardin county, and returned to the General Land Office with the field notes and placed in file No. 118, 
Liberty, second class. The Freestone county locations of the original unconditional certificate made by 
Vest, assignee of Hughes, were placed in file No. 296, and this file refers to Liberty file 118 for relocation 
by virtue of special act certificate. The locations under the special act certificate on the land in controversy 
were regarded by the Commissioner of the General Land Office at that time and since as relocations of the 
unconditional certificate made in Freestone county; and by virtue of the transfer of the unconditional 
certificate to R. B. Vest it was assumed by the executive officers of the government dealing with the 
matter at the time of the passage of the special act and the issuance of the certificate thereunder that 
Vest was the owner, and entitled to the benefits of the special act certificate. Vest was treated as the 
owner of the certificate. It appears that the only defect in the complete title of Vest, as assignee of 
Hughes, to all the benefits intended to be conferred by the unconditional certificate was that the county 
clerk of Liberty county had not made proper return of the certificate, as required by law. David J. Johnson, 
to whom the patent was issued as assignee of Thomas Hughes, died in 1866, and his estate was 
administered during that year in Navarro county. The land in controversy was inventoried as part of his 
estate. Nothing further appears with regard to this claim to the land until 1893, when the heirs of Johnson 
executed a power of attorney to Norman G. Kittrell generally to look after the land, redeem from tax sale, 
etc. Since that date the heirs of Johnson have been actively and openly asserting their claim, in the courts 
and out of them, making sales and partitions, etc.
        The estate of Thomas Hughes was administered in Jefferson county, the county adjoining Hardin, in 
which the land lies, in 1851, and his father-in-law was appointed administrator. An inventory of his estate 
was filed, which did not include or refer to the land in controversy, nor any of the certificates referred to. 
The first assertion of claim on the part of the representatives or heirs of Hughes to this land was the 
institution of this suit in 1911.
        The transfer of the special act certificate by Vest to Patrick in 1859 contains the recital that the said 
certificate was issued to Thomas Hughes in lieu of his headright certificate, issued by the board of land 
commissioners of Liberty county, No. 155. The recitals in this transfer show that Vest claimed the special 
act certificate by virtue of his ownership of the unconditional certificate No. 155. The same recitals in 
substance appear in the transfer of the special act certificate from Patrick to Johnson in 1860. Stephen 
Crosby was the Commissioner of the General Land Office who issued the special act certificate in 1856, 
and was also Land Commissioner when the first patent was issued to Johnson in 1863. This patent, which 
was to Johnson, assignee of Hughes, recites that the land was located by virtue of special act certificate 
No. 5061/5062, "issued to said Hughes by the Commissioner of the General Land Office October 9, 1856, 
and which was transferred to R. B. Vest March 30, 1851, who transferred it to Henry D. Patrick October 
20, 1859, by whom it was conveyed to said Johnson February 4, 1860." The patent to the other 640 
acres, issued in 1881 to Johnson, assignee of Hughes, contains the same recitals.
        The petition was in statutory form of an action of trespass to try title. Defendants pleaded the 
general issue and the statute of limitations of three, four, and ten years. In
Page 350
the absence of conclusions of law, it does not appear on what ground the trial court based its judgment; 
so if there is any ground presented by the pleadings and supported by the evidence upon which the 
judgment can be properly rested it must be affirmed. This is recognized by appellants, who, in an able 
brief, undertake to show that the judgment cannot be supported upon any of the issues presented by the 
pleadings and supported by the evidence.
        It is intimated in the brief of appellants, though not shown by the record, that the trial court was of 
the opinion that the action was barred by the four-year statute of limitations. If this be true, it could only 
be by treating the suit as one to reform the patent. We cannot imagine on what other grounds this 
defense could be supposed to apply. The statute is article 3358, R. S., and is as follows: "Every action 
other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought 
within four years next after the right to bring the same shall have accrued and not afterwards."
        Plaintiffs seek, in an action in trespass to try title, to recover the land, claiming that, as they were 
the owners of the special act certificate under which the land was located, the title conveyed by the patent 
inured to their benefit. If their contention be true, it does not matter whether their title be a legal or 
equitable one; in either case they would be entitled to recover the land in this action, and by its express 
terms the statute of four years does not apply. Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75.
        If, as contended by appellants, the special act of the Legislature which authorized the issuance of the 
certificate to Thomas Hughes was a pure donation, and conferred no rights upon the owner by transfer 
from Hughes of the previous unconditional certificate, then the heirs of Hughes were both the legal and 
beneficial owners of the certificate. In such case we do not think that the conclusion can be avoided that 
the title conveyed by the patent inured to their benefit, and that the title thus vested was a legal title. 
Johnson v. Newman, 43 Tex. 628; Satterwhite v. Rosser, 61 Tex. 172; Adams v. House, 61 Tex. 639; 
Humphreys v. Edwards, 89 Tex. 512, 36 S. W. 333, 434.
        If the patent had issued to Hughes, or the heirs of Hughes, and it should be determined that, by 
virtue of the transfer to him of the unconditional certificate, Vest was entitled to the benefit of the special 
act certificate, under the authorities cited it is clear he would have had the legal title to the land conveyed 
by the patent. The law is thus stated in Humphreys v. Edwards, supra: "One who claims land by virtue of 
the certificate, and its location and survey, through patents issued to the heirs of the original grantee, 
has, as against such heirs, the legal title; and the doctrine of stale demand has no application to his 
claim." Such was also the holding as to the character of the title of the owner of the certificate in the other 
cases cited. We can see no substantial difference in principle between such cases and the present case, if, 
as is contended by appellants, the special act certificate was a pure donation for the benefit of Hughes or 
his heirs, in which case the assignee of the original unconditional certificate would have had no title to nor 
interest in the certificate issued under the authority of the special act. But even if the title of the 
appellants were an equitable, as distinguished from a legal, title, still it must be distinguished from a mere 
right to acquire title; and under the decisions of this and other Courts of Civil Appeals here cited stale 
demand cannot be interposed as a defense. Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206; 
Lochridge v. Corbett, 31 Tex. Civ. App. 676, 73 S. W. 96; Betzer v. Goff, 35 Tex. Civ. App. 406, 80 S. W. 
671; Lyster v. Leighton, 36 Tex. Civ. App. 62, 81 S. W. 1033; Bell County v. Felts, 120 S. W. 1065; Hardy 
Oil Co. v. Burnham, 124 S. W. 221; Lumber Co. v. Pinckard, 4 Tex. Civ. App. 671, 23 S. W. 720, 1015. 
We are aware, however, that the doctrine of these cases has never been expressly approved by the 
Supreme Court to the full extent stated therein.
        This brings us to the principal question involved in this appeal. It is contended by appellants that the 
provisions of law were not fully complied with in the issuance of the unconditional certificate to Hughes, 
which was transferred by him to Vest, and that, at the time of the passage of the special act of 1856, the 
holder of that certificate had no right enforceable at law, and that therefore the grant by that act of a 
certificate for 1,280 acres of land was an act of pure grace and bounty, intended by the Legislature for the 
benefit of Hughes and his heirs, in which the assignee of the original unconditional certificate has no 
interest. We think the facts of this case clearly distinguish it from McKinney v. Brown, 51 Tex. 94, Hines v. 
Thorn, 57 Tex. 98, and other cases in line with them. There can be no doubt that Hughes, under the law, 
had earned the right to receive a certificate for 1,280 acres of land, and that such certificate had been 
issued to him, which he had transferred to Vest. It would appear that there had been a failure to fully 
comply with all of the provisions of law to fully perfect and protect this right. Evidence of all of this, and of 
the transfer by Hughes of the certificate, was before the Legislature. The only defect appears to have been 
a failure of the county clerk of Liberty county to make report to the General Land Office of the grant of the 
unconditional certificate. However, that certificate seems to have been recognized by the authorities as 
conferring the right claimed, and the certificate was surveyed and located by Vest, as assignee, on land in 
Freestone county; but such location,
Page 351
being in conflict with older surveys, was abandoned, and the certificate withdrawn, for the purpose of 
being presented to the committee of the Legislature, for the purpose of having a special act passed to 
cure the defect in the original certificate. The reason the act did not authorize the issuance of a certificate 
to the assignee of the original was probably that the Legislature was indisposed to pass upon the validity 
of the transfer, and with no intention of ignoring the rights of the assignee. No reason can be conceived 
why the Legislature should have desired to make a donation to Hughes or his heirs, if he had received full 
value of the right which he had earned to the land in the sale of the unconditional certificate. Such a 
course would have been manifestly unjust. The act was passed at the instance of Vest, the assignee of his 
agents. The act has the following proviso, "Provided it shall appear that these parties have never received 
headrights." From the beginning the officers of the state, whose duty it was to execute this special act, 
construed it as vesting in Vest, by virtue of the assignment to him of the original certificate, the right to 
the special act certificate. It is not necessary to here repeat the evidence, which indubitably shows this 
fact, beginning with the issuance of the certificate immediately upon the passage of the act and delivery of 
the same to Vest or his representative and followed by the issuance of the patent to the assignee of Vest. 
That the act was passed in recognition of Hughes' right to 1,280 acres of land, which he had earned by his 
residence in compliance with the offer made to him by the government, is too clear to admit of argument. 
The certificate was expressly directed not to issue if Hughes had already received his headright; that is, 
the land earned by him, and to which he was equitably, if not legally, entitled. If this was the purpose of 
the Legislature, the grant cannot be considered as a donation or pure gratuity. What was said Lyne v. 
Sanford, 82 Tex. 61, 19 S. W. 849, 27 Am. St. Rep. 852, is applicable to the facts of this case: "The terms 
of this act clearly imply that the consideration that moved the Legislature to grant the certificate was the 
right existing in Farris by reason of his having complied with the law under which the certificate was 
earned. If this was the purpose of the Legislature, the grant cannot be considered as a gratuity or 
donation to the heirs." That the right was not enforceable in the courts does not affect the question, if it 
appear that the grant was made in recognition of the right and the obligation, although not legally 
enforceable, resting on the state. Houston Oil Co. v. Gallup, 50 Tex. Civ. App. 369, 109 S. W. 959-969, 
also pages 965, 966, on rehearing. This general principle is also supported by Sherman v. Pickering, by 
this Court, 56 Tex. Civ. App. 633, 121 S. W. 536, in which writ of error was refused.
        The contemporaneous construction given this act by the Commissioner of the General Land Office 
then in office, as shown by the record, and by the Governor in the issuance of the patent, is entitled to 
great weight. G. H. & S. A. Ry. Co. v. State, 81 Tex. 602, 17 S. W. 67. As was said by the Supreme Court 
in passing upon a similar question H. & T. C. Ry. Co. v. State, 95 Tex. 521, 68 S. W. 781: "And in view of 
the fact, as found by the trial judge, that this has been the construction acted upon by the Governor and 
other officers of the state, whose duty it was to execute the law, we are of opinion that this construction 
ought now to prevail. Especially after a long lapse of time, and after the claims of innocent third parties 
may have intervened, it is only in a very clear case that the courts would be justified in overriding the 
action of successive administrations in issuing certificates and granting patents to land." Appellants have 
by their silence recognized and acquiesced for over 61 years in the claim of right to the benefits of this 
special act certificate by the assignee of their ancestor, openly asserted in the patents and by active 
insistence upon their claim since, with no word of protest from appellants until the filing of this suit. Such 
conduct is well-nigh conclusive that they considered that they had no interest in the certificate, nor in the 
land patented thereunder.
        We have examined each of the several assignments of error in appellants' brief and the propositions 
thereunder, and are of the opinion that none of them presents sufficient grounds for reversing the 
judgment; and it is therefore affirmed.
        Affirmed.