Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 25
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1884.] H-EARNE V. GILLETT. 25
Opinion of the court.
Davis, Beall & Eemp, for appellant.
RI. D. & F. i. Prendergast, for appellee.
No briefs on file for either party in this case..
WAITS, J. COM. APP.- An unlocated land certificate in this state is
considered as personal property, and may be dealt with as such.
Watkins v. Gilkerson, 10 Tex., 340; Evans v. Hardeman, 15 Tex.,
480; Cox v. Bray, 28 Tex., 261; Stone v. Brown, 54 Tex., 334.
But after such certificate has been located it can no longer be considered
as personalty, but is then merged into, and becomes part of,
In treating that question, Justice Moore, in Simpson v. Chapmafn,
45 Tex., 566, used the following language: "But when it is located
it loses this character. It then attaches with the land, and becomes
a chattel real, and can be assigned and transferred by parol no more
than the land itself. Instead of being merely property of itself, it
is, like a deed, the evidence of title to the land upon which it is
located. And though its sale or assignment subsequent to location,
if in writing, but not otherwise, may in equity be held to operate
as a transfer of the land, it is the land and not the certificate which
is the thing sold. The right to the certificate is an incident to and
necessarily accompanies a transfer of the land."
What is there said with reference to the subject is supported by a
long line of decisions in this state.
By the express terms of the statute the location and survey of a
valid land certificate constitutes such color of title as will support
the defense of three years' limitation, and such title as will authorize
the maintenance of the action of trespass to try title.
While the general rule that the certificate will pass by a conveyance
of the land upon which it is located is undoubtedly true, still
it would be competent for the parties to reserve the certificate from
the operation of the conveyance, and by floating it again restore its
character of personalty. But if there is no such reservation, then
the located certificate will pass with the land to the extent that it is
located thereon. It is not incumbent upon the party claiming under
such a conveyance to show that the certificate did pass with the land,
but the burden is upon the claimant to show that it did not.
Here it is claimed that the intention to reserve the certificate is
plainly inferable from the language used in the second clause of the
tripartite agreement, which is as follows: "on the execution of deeds
of conveyance therefor reconveying to them (Watrous), or such
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/47/: accessed August 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .