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: 482
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482 MILLER AND BURNETT V. HAYS. [Term of
Argument for the appellee.
Fifth. That whatever effect may be given to the Act of
1866, and whatever construction may be given to that clause
which provides that " all files, entries, locations, or surveys
" made so as to interfere with the preference granted by this
" Act, shall be null and void," can have no bearing on the case
The question was not whether the intervenor or the appellant
had the better title to the land, but whether the appellant
can be compelled to make the survey prayed for by the appellee
(citing Woods v. Durett, 28 Texas, 440).
Sixth. That the intervenor, having made himself a party to
this suit, and having exhibited his claims to the locus in tqo)
and showed diligence in the pursuit of his rights, while the
,appellee's evidence discloses that the latter was guilty of gross
laches in the prosecution of his, if he ever had any, show that
the equities of the intervenor, if the question of title be inquired
into, are far superior to those of the appellee, and entitle the
intervenor to a judgment for his favor.
Seventh. That this court, in the present case, should not declare
the acts of the proper authorities in issuing the patent to
the intervenor to be void. That action was within the scope
of its jurisdiction, and cannot be attacked collaterally.
Nunn & Wtilliams, for appellee. We think the only inquiry
in this case is whether the land was vacant at the time
of settlement, and had the State parted with its title at the
passage of the Homestead Act. (See Cravens v. Brooke, 17
Texas, 274; Jennings v. DeCordova, 20 Texas, 513; Spier
v. Laman, 27 Texas, 215.)
It will be observed that this Act of 1866 is even more liberal
in its provisions for the settler than some of the previous preimption
laws, in this, that it provides that the settler's rights
cannot be disturbed by any file, location, or survey made subsequent
to such settlement, although it may have been made
before the passage of the Act.
It has been decided by this court, if we be not mistaken,
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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/m1/490/: accessed August 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .