William Strong

“ If, as there held, a power of attorney from La Serda to Roberts authorizing him to sell, and a substitution by Roberts of Williams, and a sale by the latter, passed a legal title, surely a sale from Basquez to Hartz, and from the latter to Peyton, passed a legal title.
But by what law or test is the title of Peyton to be adjudged an equitable one? Equitable and legal titles are founded upon the distinction between equitable and legal estates, and there cannot be an equitable estate or title in one, without a corresponding legal estate or title in another. ”

“ There is no room for a trust. The estate, expressly limited in terms by the act of sale or deed from Basquez, is an estate in fee; for he there declares 'that he has sold, really, publicly, and in fee and for ever,' &c.
At the time of the acquisition of Peyton's title, as noted by the Supreme Court of Texas in Martin v. Parker (supra) , the common-law distinction between legal and equitable title did not obtain. ”

“ It does not appear that primary or direct evidence of the location of the lines and corners of the Basquez tract cannot be produced by the plaintiffs. If the evidence tends to prove any fact, it is that an actual survey was made, and not where the lines or corners were placed; and it does not appear therefrom that the land so surveyed by Moore was or is embraced in the title under which the plaintiffs claim. It is attempted by said testimony to repudiate the description in the grant, and to locate the land claimed under the same by adding to, varying, or contradicting the instrument itself. ”

“ It is certainly the duty of the surveyor to run around the land intended to be embraced in the survey and patent, and see that such objects are designated on it as will clearly point out and identify the boundaries of the tract, and to extend a correct description of these objects, natural or artificial, into the field-notes of the survey, in order that they may be inserted in the patent, so that the owner, as well as other locators, may have the means of knowing precisely what land is granted. If the lands cannot be identified by the calls in the grant, it is void. ”

“ Long (4 Pa. St. 254) , it was ruled that though actual possession under a junior title of part of a tract of land, which interfered with an older grant, gave possession of the whole to the holder of the junior title, yet a subsequent entry of the true owner upon any part of his land was an ouster of the intruder from what he had in constructive possession merely. We know of no authoritative decision that is in conflict with this.
It is sufficient to say of the eighth assignment of error that it is not sustainable. The answer to the defendants' point was clearly correct. ”

“ IX. In rendering judgment on the verdict of the jury, because the same is indefinite, uncertain, and does not find the main issue in the case; viz., how much of the defendants' land, if any, is covered by the plaintiffs' grant.
The charge to the jury complained of in the seventh assignment of error is set forth in the opinion of the court.
Mr. Levi W. Goodrich and Mr. Matthew H. Carpenter for the plaintiffs in error.
The papers admitted by the court below, if evidence at all, show legal title in Basquez. The right asserted by the plaintiffs is, therefore, cognizable only in a court of equity. ”

“ In the case at bar, where and in whom is the fee or legal estate? Where and in whom is the equitable estate? And how was the trust created?
The fee and absolute title were vested in Basquez, with the power of disposing of it when the concession was made. All the estate and interest of the government were conveyed. Hancock v. McKinney, 7 Tex. 384; Martin v. Parker, 26 id. 253.
The fee, then, is not in the government nor in him; for if it passed to him, and he, having the power to do so, disposed of it in express terms by his act of sale, it can only be in the vendee. ”

“ We discover no error in the admission of the evidence set out in the fourth bill of exceptions. The documents were certainly evidence against one of the defendants.
Nor can the sixth assignment of error be sustained. The survey made under the Sanchez concession was not the completion of his title. It did not identify the subject of the concession until it was accepted by the government, and until the title of possession was given. That was issued Oct. 19, 1833, after the Basquez concession had been consummated. ”

“ Still, if a different ruling has been made in the State of Texas, and has become a rule of property there, applicable to the determination of controversies respecting disputed boundaries, we should feel constrained to apply the Texas rule to this case. We have, therefore, carefully examined all the decisions of the Supreme Court of that State which relate to the subject. ”

“ The commissioner for the partition of land in the enterprise to which pertain the land solicited by the petitioner, and in his default, or that the same not being embraced by any enterprise whatever, the first or sole alcalde of the respective jurisdiction will comply with the orders on the subject and put him in possession of said leagues, and issue the proper title, previously classifying the quality of them ”

“ Steinbach v. Stewart, 11 Wall. 576; Hanrick v. Barton, supra; Robinson v. Campbell, 3 Wheat. 212.
The difference between a Mexican concession or grant by sale, and a patent from the United States or a State, as noted in Hanrick v. Barton, is too obvious for comment.
The grant to Basquez being the primary title, and the extension to the land but the incident, the extension when made related to the grant and vested in Peyton the absolute title in fee, even if it did not, as we contend, pass when the grant was made. ”

“ There is no patent ambiguity in the grant, but the court erroneously held that an actual survey was necessary to its validity. Stafford v. King, 30 Tex. 537; Jones v. Burgett, 46 id. 284; Newson v. Pryor, 7 Wheat. 7. ”

“ Strippleman, 26 id. 440; Stafford v. King, 30 id. 269; Phillips v. Ayres, 45 id. 605; Bartlett v. Hubert, 21 id. 20; Norris v. Hunt, 51 id. 609; Anderson v. Stamps, 19 id. 460; Booth v. Upsher, 26 id. 69 ”