US SUPREME COURT DECISIONS

R., a citizen of Texas, made his will there June 7, 1848, by which he devised all his property, including the real estate in controversy, (1) to his wife for twenty-one years after his death; (2) after that to his offspring, child or children by his said wife; (3) in the event of the death of his wife without offspring by him, to the children of M. by R.'s then wife, who was a sister of R.'s wife; (4) in the event of the death of the offspring which he might have by his wife, to his wife for life. M. was named as executor of the will. R. died January 10, 1850, leaving surviving his wife and an infant son. This son was born after the making of the will, and died in 1854. The will was duly proved by the executor shortly after R.'s death. About six months after R.'s death, his widow married F., by whom she had several children. Two years after the probate of the will, F. and his wife commenced proceedings to have the will declared null and void on the ground that the property was communal property. In these proceedings, the executor was defendant, and a guardian ad litem was appointed for the infant, and such proceedings were had therein that in October, 1852, a decree was entered, declaring the will to be null and void and setting it aside.

Held:

(1) That the devise to the children of M. was a contingent remainder, to vest only in case of the death of the testator's wife without offspring by him, and limited after the fee which was primarily given to the testator's child.

(2) That, the executor being a defendant and appearing and answering, and the infant son being represented by a guardian ad litem, and the executor being interested on behalf of his own children that the will should stand -- if that was of any consequence -- all the necessary parties were before the court to sustain the decree.

(3) That the decree could not be attacked collaterally, and was binding on the children of M.

McArthur v. Scott, 113 U. S. 340, distinguished from this case.

A contingent interest in real estate or an executory devise is bound by judicial chanrobles.com-red

Page 132 U. S. 663

proceedings affecting the real estate where the court has before it all parties that can be brought before it in whom the present estate of inheritance is vested and the court acts upon the property according to the rights that appear, without fraud.

In Texas, an equitable claim of title to real estate is equally available with a legal one.

In Texas, the holder of a head-right certificate could locate it upon a tract of public land and then abandon the location and locate it upon another tract, and in such case the abandoned tract became thereby again public land, subject to location by other parties.

From the evidence, it would appear that the Rutledge certificate which is in controversy in this case was in the land office in Texas on or before August 1, 1857, in compliance with the requirements of the Act of the Legislature of Texas of August 1, 1856. 1 Paschal's Digest, 701, art. 4210.

By the Act of the Legislature of Texas of April 25, 1871, 2 Paschal's Digest, 1453, arts. 7096-7099, it was provided that a certificate of location and survey of public lands, not on file at the passage of that act and not withdrawn for locating an unlocated balance, should be returned to and filed in the office within eight months thereafter, or the location and survey should be void; held that in the absence of clear proof that a valid located certificate was not on file there within the statutory time, the Court would not raise such a presumption in favor of another title, super-posed upon the land at a time when the certificate was valid and possession was enjoyed under it.

The practice of locating land certificates upon prior rightful locations is not favored by the laws of Texas.

The failure of the holder of a head-right certificate in Texas to complete his title by complying with statutory provisions in regard to the filing of his certificate enures to the benefit of the state alone.

In Texas, the rights of a subsequent locator having actual notice of a prior location are postponed to the superior rights of the prior locator, although the subsequent location may have passed into a patent.

The provisions in the Constitution and laws of Texas respecting the location of land certificates reviewed.

In Texas, land certificates are chattels, and may be sold by parol agreement and delivery, the purchaser and grantee thereby acquiring the right to locate a certificate and to take out a patent in his own name and to his own use.

The failure, in a certificate of acknowledgment of a deed of the separate property of a married woman in Texas, to state that she was examined apart from her husband cannot be supplied by proof that such was the fact.

In Texas, an habendum to a deed running "to have and to hold to him the said" grantee, "his heirs and assigns forever, free from the just claim or claims of any and all persons whomsoever, claiming or to claim the same," imports a general warranty and estops the grantor and his heirs from setting up an adverse title against the grantee.

On the facts, the Court holds that the statute of limitations of Texas is a complete bar to the claims set up by the complainants, both in the original bill and in the cross-bills. chanrobles.com-red

Page 132 U. S. 664

In equity. The suit, as it was commenced in a state court in Texas, was an action of trespass; but, on its removal to the circuit court of the United States, a repleader took place on the equity side of the court. The original bill and the cross-bills were dismissed, from which decree this appeal was taken. The case is stated in the opinion.