Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 405
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1875.] WOOD Y. WELDER. 4.05
Argument for the appellant.
without its being regular, in each of these cases, and in these
alone, where the title issues from the government, can he avail
himself of this plea.
In the absence of the decisions in Marsh v. Weir and
Smith v. Power, above cited, and as an original question, it
would strike us that a party entering under a void grant, like
the one under consideration, might avail himself of the 15th
Section, and claim to be under title from the sovereignty of
It is true his title is bad, it is void; but the statute itself
presumed that a title invoking its aid was not good, was perhaps
a nullity. For a good title needs no assistance from prescription.
IHad the decision in Marsh v. Weir been the other way, we
believe it might have been defended, unless the conclusion can
be drawn from that case, and those of Smith v. Power, and
Lambert v. Weir, that the court intended to announce the
broad doctrine, that a void title, such as that offered in evidence
in Jones v. Menard, supra; Trimble v. Smithers, I
Texas, 790; Dangerfield v. Paschal, 11 Texas, 579; and Lambert
v. Weir, supra, was not sufficient to support a plea of
limitation, either under the 15th (three years), or the 16th
(five years) Sections of the Act of 1841, but would alone avail a
party under the 14th Section (barring the right of entry).
This we believe to be the correct conclusion, though we are
not sure that the court so intended to assert. At all events, no
case has yet been decided, as far as we are aware, laying down
the doctrine that under a void grant, or under a junior patent,
a party can avail himself of the five years' limitation.
He would never have occasion to do so under a genuine
junior patent, for the three years' statute would always be sufficient,
lHe could not under a void or voidable grant (but more especially
under a void grant, such as the one under consideration)
avail himself of the five years' limitation, because when
we remember that the immediately preceding section had
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/413/: accessed January 17, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .