By a statute of Texas, actions of ejectment, trespass to try
title &c., can be maintained upon certificates for head rights
or other equitable titles.
But this Court has decided that in the courts of the United
States, suits for the recovery of lands can only be maintained upon
a legal title.
A plaintiff in the court below who had nothing more than an
incipient equity could not, therefore, maintain his action.
The bill of exceptions contained the evidence of the title of
Sheirburn, the plaintiff, when the defendants objected to the
admissibility of said locations and entries because the same were
vague, uncertain, and indefinite and also because surveys thereon
were not returned to the General Land Office, but the court
overruled said objections and the defendants excepted thereto. The
plaintiffs here closed.
The objection made in this Court,
viz., that the
plaintiff could not maintain the suit upon a head right in the
court of the United States, did not appear to have been made upon
the trial, but the question seemed to turn upon the validity of the
title of the defendants, which was sustained, and upon that ruling
the plaintiff brought the case up to this Court.
Page 65 U. S. 425
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This was a suit by the plaintiff to recover a parcel of land in
the County of Guadalupe in the State of Texas. The title of the
plaintiff consists of certain entries of head rights embracing the
land in dispute. One of these is in these words:
"Joseph A. Sheirburn, assignee of Victor Ed. Gaillon, enters
one-third of a league of land, situated on a noted island, about
six miles above the Town of Walnut Springs and extending on the
mainland on the northeast said of the Guadalupe River for quantity;
the said location is also a short distance below a very elevated
mound on the west of the river. Certificate 222. Harrisburg County,
October 16, 1838."
In January, 1953, the plaintiff applied to the District Surveyor
of Guadalupe County for the survey of this and other land embraced
in the entries, who declined to execute the surveys, but it is
admitted that the entries cover the land in controversy. The
defendants relied upon a Mexican grant, issued in 1831 in favor of
Antonio Maria Esnourizar, for eleven leagues of land, and which
embraces the same land. The district court pronounced this grant to
be a valid appropriation of the land described in it, and the
plaintiff alleges that there is error in that decision.
By a statute of Texas,
"All certificates for head rights, land scrip, bounty warrants,
or any other evidence of right to land recognized by the laws of
this government, which have been located or surveyed, shall be
deemed and held an sufficient title to authorize the maintenance of
actions of ejectment, trespass, or any other legal remedy given by
law."
Hart.Dig.,
Page 65 U. S. 426
art. 3,230. The testimony adduced by the plaintiff, it would
seem, would have authorized a suit in the courts of Texas, where
rights, whether legal or equitable, are disposed of in the same
suit. But this Court has established after full consideration that
in the courts of the United States, suits for the recovery of land
can only be maintained upon a legal title. It is not contended in
this case that the plaintiff has more than an incipient equity.
This question was so fully considered by the Court in
Fenn v. Holme, 20 How.
481, that a further discussion is unnecessary.
Judgment of the district court affirmed.
