Joseph P. Bradley

“ 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 wr ting 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ It was claimed and exercised under a regular deed of conveyance from M. T. Johnson, dated 23d June, 1855, which granted and conveyed, not only the certificate of Rutledge, but the land located under it, describing and identifying the same, and which was duly registered in the records of Tarrant county, on the 30th of March, 1857. It is difficult to see why the plea of limitation of five years, at least, is not a good bar against the heirs of Adaline S. Worrall. ”

“ Much of the land in question is laid out in streets, and covered with buildings, and nearly 100 acres of it is occupied by the said railroad companies, or some of them, for their tracks, station-houses, freight depots, shops, etc. The plaintiffs claimed title as heirs at law of one Thomas P. Rutledge, through Eliza A. Foster, wife of William L. Foster, and mother of the other plaintiffs, who had been the wife and widow of said Rutledge, and mother of his only son, deceased. ”

“ Now, supposing that the prerogative of the government prevented the statute from running until after the patent issued to the heirs of John Childress, in June, 1868, it certainly commenced to run at that time against those who claimed under the patent; and the facts present a strong case of adverse possession on the part of E. M. Daggett and his grantees. ”

“ In the event of the death of the offspring which I may have by my said wife, I direct that my said wife shall have all of my estate, both real and personal, for and during her life. * * *Ninth. I do appoint the said Alsey S. Miller, of said county and state, my executor of this, my last will and testament.' Rutledge died on the 10th of January, 1850, leaving, surviving him, his wife, Eliza A. Rutledge, and an infant son, William M. Rutledge, who was born after the making of the will, but who died in 1854, about six years of age. ”

“ The substance of said transfer was an assignment of all right, title, claim, and interest of said T. P. Rutledge of, in, and to the said certificate to the said M. T. Johnson, and authority therein authorizing the commissioner of the general land-office to issue the patent to the said M. T. Johnson or to his assigns. On his cross-examination the witness says that the transfer was acknowledged before some officer authorized to use a seal, and has his certificate of acknowledgment and seal thereon. He stated that he also saw the deed from Johnson to E. M. Daggett on record in Tarrant county. ”

“ It has been repeatedly determined that if there be tenant for life, remainder to his 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. ”

“ The other half of Adaline S. Worrall's estate descended to her brother, John Cook, and her two sisters, Alizannah, wife of William Dunlap, and Matilda, wife of Dr. Jonas Fell. John Cook was living at Adaline's death, and survived to August, 1873. The sisters were married women when Adaline S. Worrall died; but as her disability as a married woman had already prevented the statute from running during her life-time, their disability, according to the law of Texas, cannot be added to hers. It was decided by the supreme court of Texas in the cases of White v. ”

“ Worrall 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. ”