# Chaison v. Stark > Court of Appeals of Texas · April 4, 1930 · 29 S.W.2d 500 URL: https://www.frixlaw.com/law-library/cases/9828974 ## Case - **Full name:** CHAISON Et Al. v. STARK Et Al. - **Court:** Court of Appeals of Texas - **Decided:** April 4, 1930 - **Citations:** 29 S.W.2d 500; 1930 Tex. App. LEXIS 614 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Walker - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9828974 ## Opinion text On Rehearing. Appellee W. H. Stark had a cross-action in the lower court against his warran-tors to recover the purchase price paid by him for the Higginbotham survey in the event he lost the title. Having recovered title in the lower court, it followed -that he had no cause of action against his warrantors. On original submission on the issue of title, we reversed the judgment of the lower court and rendered judgment against Mr. Stark; but denied him recovery against his warrantors because, on the statement made in his brief, there was no showing as to the amount paid by him for the Higginbotham survey. On rehearing he has supplemented his original brief by showing by the recitations in the warranty deed to him that he paid for this land on the 23d day of March, 1910, the sum of $4,374. As between Mr. Stark and his war-rantors this recitation in his deed was sufficient proof of the amount and of the payment of the purchase price. Allison v. Pitkins, 11 Tex. Civ. App. 655 , 33 S. W. 293 . But if that be conceded the warrantors insist further that Mr. Stark cannot have judgment against them because the proofs show that subsequent to his purchase he sold 33.69 acres of this land, and there was no proof of the proportionate value of the land sold to the unsold portion. We think the warrantors are in error in their construction of the evidence. The proof was that all the land was marsh land; quoting one of the witnesses, “it was all marsh and had no high land on it, and could not have served any useful purpose, except as a water front and this had no value at that time.” One boundary of the land was near the city of Orange, but, because the land was marsh, this did not give the part near the city any greater value in 1910. We say this because, under the proof, none of the land in 1910 could be uséd for any useful purpose. On authority of Northcutt v. Hume (Tex. Com. App.) 212 S. W. 157 ; Gass v. Sanger (Tex. Civ. App.) 30 S. W. 502 ; Hollingsworth v. Mexia, 14 Tex. Civ. App. 363 , 37 S. W. 455 : and First Nat. Bank v. Brown (Tex. Com. App.) 15 S.W.(2d) 563 , these facts made out a prima facie case of uniform value of the land and is sufficient to support a judgment in Mr. Stark’s favor for the purchase price, less the proportionate value of 33.69 acres sold by him. Where the grantee sells a part of the land the rule is that he can recover aghinst his warrantors only the same proportion of the purchase price as the value of the part unsold bears to the whole premises. Hynes v. Packard, 92 Tex. 44 , 45 S. W. 562 . As to this amount we accept Mr. Stark’s calculation showing $4,143.76. If there is error in this calculation, it is against Mr. Stark’s interest. Interest is not allowed on this sum because, on the facts of this case, Mr. Stark concedes-that he is not entitled to interest. It follows that Mr. Stark’s motion for rehearing on the issue of warranty is granted and judgment is here rendered in his favor against his war-rantors for the sum named, to wit, $4,143.76. On the issue of title appellees insist that the Act of April 25, 1871, should be construed liberally in their favor. They say that public rights cannot be treated as relinquished or conveyed away by inference or legal construction. Quoting Judge Phillips in Taylor v. Sanford, 108 Tex. 340 , 193 S. W. 661 , 5 A. L. R. 1660, they say further: “No person can be made a grantee of property against his will.” These are all sound legal propositions. The Act of April -25, 1871, where open to construction, should be construed liberally to support the Higginbotham survey. Public rights cannot be treated as relinquished or conveyed away by inference or legal construction. No person can be made a grantee of property against his will. But these propositions have no relation to the facts of this case. The Act of April 25, 1871, as we have applied it to the facts of this case, is clear and unambiguous and calls for no construction. Appellants’ survey fell clearly within its terms as detailed in section 2, quoted in the original opinion, and it followed, as a matter of law, by the express terms of the act, that the survey was valid. But appellees say this construction of the Act of April 25,1871, makes Baldwin and Chubbuck grantees against their will. Since they did nothing to accept its provisions, it is contended they were not entitled to its benefits. The proposition is that no survey was validated by this act except where the claimant, by something done by him, accepted its provisions, thereby making himself a party to the offer of the state to validate his survey ; that, without an acceptance, the offer of the state to validate defective surveys was merely unilateral, subject to revocation after a reasonable time; that as between the state and appellants the offer to validate this survey was revoked by article 16, § 18, of the Constitution of 1876; and that any other construction would make Baldwin and Chub-buck grantees against their will, taking from them the right to abandon their void location op this land and! to relocate their certificate upon other land of their choice. Appellees are in error in reading into this act the requirement that Baldwin and Chubbuck manifest their intention to accept its provisions by an affirmative act of acceptance. The act did not impose that duty *507 upon them, and for us to do so would be judicial legislation. These old grants had been the subject of much legislation prior to the passage of this act, reviewed by the Supreme Court in Adams v. Railway, cited in our original opinion, some of which did require an act of acceptance by the claimant. By omitting this condition from this act the Legislature clearly manifested an intention to cure the defects in these old surveys without an act of acceptance by the claimants. Of course, where the claimant had abandoned his void survey, the act did not inure to his benefit, 'but if the survey had not been abandoned all defects were cured. The certificate located upon the land was merged into the "land by the provisions of the. act, severing the land thus surveyed from the public domain and vesting the claimant with title thereto. That Baldwin and Chubbuck had not abandoned this survey is manifest from the provisions of section 2 of the act, quoted in the original opinion. This section enumerates the facts necessary to constitute a claim to the land. Where these facts existed there was no abandonment, and in this case all the facts required by section 2 did exist. Thus, as required by section 2, this survey was properly made by virtue of a valid land certificate, which survey with the certificate had been returned and was at the time of the passage of this act on file in the General Land Office, and the land covered by the survey was not in conflict with any other valid land claim. It follows that Baldwin and Chubbuck, by permitting the certificate to remain in the Land Office, manifested an intention not to abandon their survey. So the act did not make them grantees against their will, but only perfected their title. In our original opinion we say that Baldwin, after' the survey was made and the certificate and field notes returned to the Land Office, never “claimed this land.” We did not mean by this conclusion that he had abandoned his claim, but only that he did nothing, after returning his field notes, to assert his claim. If this conclusion, is sound, Baldwin’s title became a vested right in him immediately after the passage of this act and was not subject to revocation by the provisions of the Constitution of 1876. Appellees would deny the force of this argument by saying that appellants’ grant was declared void by section 2 of article 10 of the Constitution of 1869. By express language this Constitution did declare void defective surveys of the character of this one, but it took nothing from the claimants of these surveys, because the mere failure to make due return of the field notes rendered the surveys void. They were therefore void independent of the Constitution of 1869. However, there was nothing in that Constitution that took from the Legislature the power to pass remedial legislation, curing these defects. That was the purpose of the Act of April 25, 1871, manifested by its express language. We think, as said in the original opinion, that Adams v. Railway directly sustains its constitutionality. But independent of what was said in that case, and as an original proposition, the act was constitutional because its enactment 'was not in contravention of any constitutional limitation. All motions for rehearing are overruled except the motion on the issue between Mr. Stark and his warrantors, which is granted, as above indicated. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9828974. Public record. Not legal advice.