first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remainder-men are barred." In another part of the same opinion Lord REDESDALE said: "Courts of equity have determined, on grounds of high expediency, that it is sufficient to bring before the court the first tenant in tail in being, and, if there be no tenant in tail in being, the first person entitled to the inheritance, and, if no such person, then the tenant for life." Id. These propositions are substantially repeated in his Treatise of Pleading, 173, 174, where he adds: "Contingent limitations and executory devises to persons not in being may, in like manner, be bound by a decree against a person claiming a vested estate of inheritance; but a person in being, claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance, by which it may be defeated, must be made a party to a bill affecting his rights." In the present case, it is true, some of the children of Alsey S. Miller were in being at the time of the proceedings in question, (1852;) but there was a "preceding vested estate of inheritance," by which their executory devise might be defeated, namely, the estate vested in the infant child of Thomas P. Rutledge, who was a party to the proceedings. We are of opinion that the bill of Thomas H. Miller and others was properly dismissed by the court below.

pended, and that this decree be duly certi- | there be tenant for life, remainder to his fied to the county court for observance. If this decree is valid, it disposes of the claim of the complainants Thomas H. Miller and others, which is based on the devise of the will. The precise question came before the supreme court of Texas in the recent case of Miller v. Foster, 12 S. W. Rep. 119, and was decided against the contention of the appellants Miller et al. The commission of appeals held that the decree of nullity was valid, and that all the necessary parties were before the court when it was rendered. This decision was approved by the supreme court. It is contended by appellants that the decision in the case of McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. Rep. 652, is adverse to this view. But a careful examination of that case will show that this is not correct. The decree setting aside the will in that case was held not to be binding upon certain grandchildren of the testator, not born when it was passed, because their interests, which were executory, were supported by a legal trust-estate in the executors, which was not represented in the proceedings. No trustee of that estate was made a party. The executors had resigned their office, and the court had accepted their resignation; and no new trustee had been appointed in their stead, as might have been done. There was no party in the case to represent the will, or the interests created by it, or the legal estate which supported those interests. This was the special ground on which the decision in McArthur v. Scott was placed, as is fully expressed in the opinion.

The complainants in the cross-bills, William Dunlap and others, and Martha R. Worrall and others, claim the lands under the other source of title, that of John Childress; and, to avoid the effect of the defendants' claim under the Rutledge certificate, they deny that it was assigned by Rutledge to Brinson, or by Brinson to M. T. Johnson; deny that it was ever lawfully located on the land in question; and aver that if it was ever properly located thereon, it became void by non-compliance with the land laws of Texas. The Childress title arose in the following manner: John Childress, a brother-in-law of the late Mr. Justice CATRON, and brought up in his family, was an early emigrant to Texas, under the patronage of his uncle, Sterling C. Robertson, empressario of a colony on the Brazos river. His first visit to Texas was in 1834, and in 1836 he took his wife and two chil dren with him, namely. John W. Childress and George R. Childress. Though num

In the present case the executor was a defendant in the proceedings instituted for avoiding the will, and appeared and filed an answer; and the infant son of Rutledge, who was devisee in fee of the whole estate after the termination of his mother's interest, was represented in the proceedings by a guardian ad litem. Moreover, if the circumstance is of any consequence, the executor was interested, on behalf of his own children, that the will should stand, as they were the principal devisees in remainder. We think that the supreme court of Texas was right in holding that all the necessary parties were before the court. We are also of opinion that the decree avoiding the will cannot be attacked collaterally, and that it is binding on the appellants Thomas H. Miller and others. The entire estate was represented before the court,—a particular estate in the widow, and the fee-bered among the colonists of Mr. Robertsimple remainder in the infant son. interests of the apellants Thomas H*Miller and others, as devisees under the will, was a mere contingent interest, a mere executory devise. In such a case, it is sufficient to bind the estate, in judicial proceedings, to have before the court those in whom the present estate of inheritance is vested. Lord REDESDALE's authority on this point is decisive. In Giffard v. Hort (1 Schoales & L. 386, 408) he says: "Where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must, of necessity, be final and conclusive. It s been repeatedly determined that if v.10s.c.-14

The

son, for some reason he failed to obtain any valid grant of land, though undoubtedly entitled to one. He died, in Texas, in the fall of 1837. By an act of the legislature of Texas, passed February 13, 1860, the commissioner of the court of claims was authorized to issue to the heirs of John Childress a land certificate for one league and one labor of land, amounting to about 4,605 acres. His widow had, in the mean time, married one Miles Johnson, by whom she had a daughter, named Mary. As the act of the legislature was expressed to be for the benefit of the heirs of John Childress, it would seem that no interest in the grant inured to the said Mary. On the 9th of March, 1860, a land certificate

adopting the notes of the same; and the county surveyor certified it as follows, towit: "I, A. G. Walker, county surveyor for Tarrant county, do hereby certify that the survey designated by the foregoing plot and field-notes was this day made by me, by adopting field-notes of the survey which was made, as above stated, the 16th January, 1852, and which I believe to be correct, and that the same is upon s'd survey, which is in the name of T. P. Rutledge, certificate No. 134, class 3rd, issued by the board of land commissioners of Gonzales county, the 12th day of October, 1846." Dated "this 28th day of May, 1868." On the 17th of June, 1868, a patent was issued on this survey to "the heirs of John Childress, deceased, their heirs and assigns." It thus appears that the Childress survey, under which the complainants in the crossbills claim title to the land in dispute, was purposely made by Dr. Worrall on the top of the Rutledge survey, under which Daggett had been in possession of the land for 13 years. Of course, such a title cannot be maintained, unless the survey made under the Rutledge certificate was void. It is contended that it was void, first, because the certificate had been located on other lands in Fannin county before its location on the lot at Fort Worth. This is true. Rutledge had procured a conditional headright certificate for 320 acres as early as March 20, 1839, from the board of land commissioners of Washington county, and had, in March, 1846, procured a survey under it for 320 acres in Fannin county, which was duly examined and approved, and filed in the general land-office, but was afterwards indorsed as forfeited for non-return of unconditional certificate by 1st August, 1857.* Rutledge seems to have abandoned this survey, and in October, 1846, obtained a new certificate in Gonzales county, as before stated, under which the survey in Fort Worth, Tarrant county, was made. It was permitted to a settler to abandon one location and adopt another. Indeed, the new certificate and location operated as an abandonment of the first, and the land became public land again, subject to location by other parties. In McGimpsey v. Ramsdale, 3 Tex. 344, the court sustained a survey made after a former survey under the same headright had been abandoned; the judge who delivered the opinion say

was issued by the commissioner of the | WORRALL." A survey was made accordcourt of claims to the heirs of John Chil-ingly, on the top of the Rutledge survey, by dress, as authorized by the act. It was procured by and delivered to a lawyer of Austin, by the name of John A. Green, who was employed by Judge CATRON, on behalf of the heirs, to attend to the business. The heirs, John W. Childress and his brother George, seem to have been of a roving disposition. John appeared at Austin in December, 1860, and supposing that his brother George, who had not been heard from recently, was dead, he gave Green a power of attorney to locate the said certificate in the following manper, namely, one-third for the benefit of his brother George, if he should be alive, and, if not, then for John's own benefit; onethird for the benefit of Green, as a compensation for his services; and one-third for the benefit of one John O. St. Clair, to whom John W. Childress had sold his own share. No location of the certificate was made until after the war. In May, 1867, Green sold his one-third of the certificate to Dr. I. R. Worrall, of Austin. The deed given cannot be found, but it is alleged on the part of William Dunlap and others and Martha R. Worrall and others that it was given to Worrall's wife, Adaline S. Worrall, under whom they claim. The deed, as above said, is lost, and the records of Tarrant county were destroyed by fire in the spring of 1876; but Mr. Furman, a lawyer of Fort Worth, had, before the fire, made an abstract of titles from the county records, and in that abstract he finds, among other things, (1) a transfer from John W. Childress to John A. Green, conveying onethird of the grantor's interest in the Childress certificate, filed October 8, 1868, (date not given;) (2) a transfer of the same interest from John A. Green to Adaline S. Worrall, dated May 15, 1867, filed October 12, 1868. In addition to this evidence, in the deed from Dr. Worrall and his wife to E. M. Daggett, dated September 30, 1869, and hereafter to be mentioned, it is recited that the land in question, conveyed by that deed, was the separate property of said Adaline S. Worrall. We think, therefore, that it may be regarded as proven that the deed for the one-third of the Childress certificate, given by John A. Green in May, 1867, was given to Adaline S. Worrall, though Green himself says that he has no recollection to that effect, and that all his transactions were with Dr. Worrall, himself. On the 28th of January, 1868, Dr. Wor-ing: "If the question was a new one, I rall presented to the county surveyor of Tarrant county the following application for a survey, to-wit: "Austin, Jan'y 28th, 1868. County Surveyor, Tarrant County, Texas: Sir: By virtue of certificate No. 186, issued by W. S. Hotchkiss to Jno. Childress' h'rs, now in your office, you will please survey for me 1,806,336 sq. vs. [320 | acres] of land, about one mile S. E. of Fort Worth; being the same land heretofore surveyed in the name of T. P. Rutledge, the field-notes of which are hereby adopted as a full description of this survey: Beginning at the S. E. cor. of A. Briggs' survey and S. W. corner of B. F. Crowley's, and running so as to embrace and include all the vacant land connected with said point. That is the said Rutledge survey. I. R.

should feel strongly inclined to deny the right of Ramsdale to have raised his former location; but the practice commenced with our land system, and to upset it now would disturb land titles to an incalculable extent." We do not think that the location of Rutledge's headright in Fannin county was sufficient to prevent his obtaining a new certificate and a location in Tarrant county, unless he had sold or otherwise disposed of the lands in Fannin county. There is no proof in the case that he had done so; although one of the witnesses, Nance, who resides in Fort Worth, testifies that in September, 1859, being in Austin, and having understood that Daggett could not get his land patented, he inquired of Mr. White, the then commissioner of the gen.

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tin, by Daggett's authority, and handed it to the commissioner of the land-office, and requested him to have it returned to its proper file in the office. The laws which gave importance to the locality or place of deposit of the certificate were an act of the legislature of Texas passed August 30, 1856, and another act passed April 25, 1871. 1 Pasch. Dig. art. 4210, p. 701, and volume 2, arts. 7096-7099, p. 1453. The first of these acts declared that "all owners or holders who have conditional certificates now located, or surveys upon lands, shall return to the general land-office the unconditional certificates, together with the field-notes of the same, on or before the first day of August, 1857, and all unconditional certificates which are not returned by that time, the said locations and surveys shall be null and void, and all such locations and surveys made by virtue of such conditional certificates shall become public domain, and subject to be located upon as other vacant lands." In our view of the evidence, this law did not affect the Rutledge title. The prima facie proof is that the certificate was in the land-office from 1852 to December, 1857, and that the chief clerk, McGill, made a mistake in indorsing the wrapper, as he did, "Forfeited*for non-return of unconditional certificate by 1st August, 1857." As already suggested, this indorsement was probably made in 1868, when Dr. Worrall applied for a patent on the Childress survey, and, no doubt, was honestly made. McGill admits that he did not notice the pencil memorandum on the old wrapper.

perfectly valid, and possession was enjoyed under it? And, even if it were sufficiently proven that the certificate was not in the office during the years in question, the question would still arise whether the claimants under the Childress survey and patent, can take advantage of this circumstance to maintain their title to the property. When that title was created, in 1868, as already intimated, the Rutledge survey was in full force and effect, and Daggett was in possession under it, and had been so for 13 years. Did, therefore, the injunction of the statute of 1871, requiring the survey to be returned to the land-office within eight months, under penalty of being void if not so returned, inure to the benefit of the holders of the Childress patent, or did it inure to the benefit of the state? The Childress survey, when made, was void; and therefore the patent issued upon it was void, because made and granted upon lands already appropriated, under an elder title, which title, at that time, was perfectly valid, and only became invalid by non-compliance with a statute subsequently passed for reasons of public policy. Did the Childress survey and patent, which were void at their inception, become invested with life and validity by means of the subsequent law, and the failure to comply with it? If the question was only one between the holders of the Rutledge title and the state, then no parties other than the state could take advantage of the omission to comply with the law. The practice of locating certificates upon prior rightful locations is not favored, by the laws of Texas. It was declared by the act of August 30, 1856, (1 Pasch. Dig. art. 4575,) that whenever an entry is made upon any land which appears to be appropriated, deeded, or patented by the books of the proper surveyor's office, or records of the county court, or general

By the act of 25th April, 1871, it was provided that in all cases of location and survey of lands, by virtue of any genuine land certificate, including headrights, etc., the certificate should be returned to the general land-office, with the field-notes, within the time prescribed for returning field-land-office, the party shall abide by it; and, notes,-which was 12 months from the date of survey,-and the withdrawal of it from the office should render the location and survey null and void, with a proviso | allowing a withdrawal where the certificate had only been located in part; and by the second section of the act it was provided that, in all such cases, if the certificate was not on file in the general land-office at the time of passing the act, and had not been withdrawn for locating an unlocated balance, it should be returned to and filed in the said office within eight mouths from the passage of the act, or the location and survey should be void. It was strenuously contended that the case was within this statute, and, therefore, that the Rutledge survey was void. But it is not absolutely certain, from the evidence, that the Rutledge certificate was not in the land-office when the act of 1871 was passed, or that it was not returned thereto within eight months from that time, which period expired on the 24th of December, 1871. It is true, it was not found by the clerk in 1868, when the patent was issued on the Childress survey; and it was not found on a subsequent search, in 1875. Resort must be had to presumptions, to conclude that it was not there in 1871. Will such a presumption be raised in favor of another title, superposed upon the land at a time when the Rutledge certificate was

if judgment be rendered against him, he shall not have the right to lift or re-enter the certificate, but the same shall be forfeited. The purpose of this act was further secured by the constitution of 1869, by the tenth article of which (section 3) it was declared that "all certificates for land located after the 30th day of October, 1856," (referring, undoubtedly, to, but mistaking the date of, the last-mentioned act,)" upon lands which were titled before such location of certificate, are hereby declared null and void," with a proviso in favor of inadvertent conflict with older surveys. Of course, if the certificate was made void, the loca tion and survey were a fortiori void, and the obtaining of a patent could not mend the matter; for it was decided by the supreme court of Texas, in Morris v. Brinlee, 14 Tex. 285, that a subsequent locator, having actual notice of a prior location, will be postponed to the superior rights of the prior locator, although the subsequent location may have passed into a patent. The provision of the constitution of 1869, just cited, was retrospective, was in force when the act of 1871 was passed, and was carried forward, as to all future locations and surveys, into the constitution of 1876, which declared "that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only up

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Rutledge sold the certificate, testifies that, about 1848 or 1849, Rutledge and one Gill were in the business of horse-raising and horse-trading, and were occasionally at his father's place, in Shelby county, and one deal they made with him was the sale to him of the land certificate in question, for which the witness' father gave them a pony belonging to witness, who was then about 20 years old, and his father gave him another horse instead of it; that afterwards, about 1851, M. T. Johnson bought the certificate of witness' father; and that Johnson afterwards*traded it to Capt. E. M. Daggett. It is true the witness did not handle the certificate, but derived his knowledge of it from conversation with his father, and contemporaneous knowledge of the transactions. The witness further states that, while his father (Matthew Brinson) owned the certificate, he employed Gill to locate it, or have it located for him; but found that he was making a fraudulent use of the certificate, using it in what he termed "lariating land," in Fannin county; and he was obliged to institute proceedings to get possession of it, and finally got it back from some member of Gill's family, after his death. But no as

on vacant and unappropriated public do- | Matthew Brinson, to whom, it is alleged, main, 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, or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him." Article 14, § 2. These constitutional provisions, whose validity upon the subject in hand cannot be seriously questioned, taken in connection with the act of 1856, had the effect to make void the location of the Childress certificate upon the land in dispute; for at that time (1868) the said land was appropriated" and "titled" by the survey under the Rutledge certificate, which was duly recorded in the county records, and entered and filed in the general land-office, plotted on the map of Tarrant county, and evidenced by the long-continued occupation of Daggett. If, then, the Childress location was absolutely void at its inception, how could it be revived by the subsequent failure of Daggett to comply with the act of 1871? It seems to us quite clear that it could not be, and that said failure inured to the benefit of the state alone. But the state has never availed itself of the omission; and it is probable that nothing but a direct proceed-signment of this certificate from Rutledge ing to vacate the survey would be effectual for the purpose. Daggett and those claiming under him having always been in notorious possession of the land, no person could lay any new location upon it without full knowledge of their pretensions to the ownership; and it was held by the supreme court of Texas, in the recent case of Snider v. Meth vin, 60 Tex. 487, that no one having knowledge of the continued claim of those who made title to land under a certificate could acquire any right to said land, although said certificate had been taken from the land-office prior to the passage of the act of 1871, and was not returned within the period required by that act. It is true that the certificate, in that case, had been taken from the office by a person who had no interest in it, or right to control it; but the parties interested had notice of its absence in time to have supplied a duplicate, but did not do so until after the pre-ent, and the possession and improvements scribed time had expired. In the present case the certificate was returned to the office in 1879 or 1880, from which it had probably been inadvertently detained by Dagett. As between the parties to this controversy, our opinion is that the Rutledge title must prevail, and that it is a sufficient protection to the defendants against that set up by the complainants in the cross-bills.

This view of the case renders of less importance a question which might have been very material as between the original complainants, Thomas H. Miller and others, and the defendants, had not the former been barred by the decree annulling Rutledge's will. We refer to the question as to the assignment by Rutledge of his certificate to Brinson, and by Brinson to M. T. Johnson. We are satisfied, from the evidence in the case, that Rutledge sold said certificate to Brinson, and that Brinson sold it to Johnson, at whose instance, and in whose behalf, it was located on the land in question. M. J. Brinson, son of

can now be found. If one ever existed, it is lost, or has been destroyed. However, if a sale of the certificate was actually made by Rutledge to Brinson, and by the latter to Johnson, it matters little whether it was actually assigned in writing or not, as it is well settled in Texas that the land certificates of that state are chattels, and may be sold by parol agreement and delivery, whereby the purchaser acquires a right to locate the certificate and procure a patent in the name of the grantee, but for his own use, he becoming thereby the equitable owner of the land located. Cox v. Bray, 28 Tex. 247; Peevy v. Hurt, 32 Tex. 146; Stone v. Brown, 54 Tex. 334; Parker v. Spencer, 61 Tex. 155, 164. In Cox v. Bray, Chief Justice MOORE said: "But, even if the contract were within the statute [of frauds,] the payment of the purchase money, the location of the land, the procuring the pat

made upon it by the defendant, and those under whom he claims, would, as has frequently been decided by this court, have presented sufficient equity to have entitled the defendant to a decree of title, if he had brought a suit for this purpose, within a reasonable and proper time. And

it certainly could not be less effectual to protect him against the wrongful efforts of the vendor to deprive him of his possession and equitable title to the land, however long he may have delayed his suit for this, purpose.' Even when a written assign-g ment was made, it was often made with a blank space left for the name of the assignee, to be filled up with the name of any subsequent purchaser who saw fit to insert his own name therein,-much the same as blank assignments of corporation stock, which pass from hand to hand, perhaps a dozen times, before they are filled up with the name of an assignee. It is distinctly stated in Hill v. Moore, 62 Tex. 610, 614, that "land certificates were the subjects of

889.