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: 27
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18s,] IHEARNE V. GILLETT. 27
Opinion on motion for rehearing.
Nor do the attending circumstances aid the construction contended
for by appellant. It was a compromise and settlement of
conflicting claims, each party having a claim to the same land, and
it was to finally settle and adjust the whole matter that the compromise
it could hardly be expected that the Watrous heirs would accept
simply a reconveyance of the Ruiz title, leaving the Kennedy title
outstanding and unsettled, when the obvious intention of the parties
was to finally conclude all questions as to the land, so far as they
In our opinion the certificate, to the extent that it was located
upon the land that Mrs. Hearne conveyed to appellee, passed to
and was vested in him by reason of that conveyance. And as he
was the owner of the certificate to that extent, he would have an
interest in the land upon which it was subsequently located, proportioned
to his interest in the certificate. Keyes v. . H . & G. . ailroad
Co., 50 Tex., 174; Hermann v. Reynolds, 52 Tex., 395.
Our conclusion is that there is no error in the judgment, and that
it ought to be affirmed.
[Opinion approved May 13, 1884.]
ON MOTION FOR REHEARING.
WILLIE, CHIEF JUSTICE.- In overruling the motion for rehearing
in this cause, it is proper to state that the opinion of the commissioners
of appeals in Smyth v. Veal, 2 Tex. L. Rep., 261, so much
relied on to sustain the motion, was never adopted by this court.
The conclusions of the commissioners in affirming the cause were
adopted, but this does not make the case authority, at least so far as
the grounds upon which the conclusion is reached are concerned.
That part of the opinion relied upon by appellant does not seem to
have received the sanction of the commissioners, and their decision
is rested upon another point, which is of no importance in the
We do not wish to be understood as dissenting from that portion
of the opinion in Smyth v. Veal referred to in the motion, or as
passing upon it in any manner whatever. It will be time enough
to do that when a case requiring our decision upon the very question
discussed in the opinion is presented.
In the present case, the contract recited in the opinion bound
Mrs. Hearne to convey to the parties under whom Gillett claims all
the right, claim and title which she might have to the land upon
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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/m1/49/: accessed March 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .