55 Tex. 1 | Tex. | 1881
On February 5, 1850, it was enacted by a statute entitled “ An act to prevent locations in the colonies of Austin, DeWitt and DeLeon,” as follows: “That no certificate of land, land warrant, or evidence of land claim, of any kind whatever, shall hereafter be located upon any land heretofore titled or surveyed within the limits of the colonies of Austin, DeWitt and DeLeon; and the commissioner of the general land office is hereby prohibited from hereafter issuing a patent on any location hereafter made for any of the lands described in this act; and should any patent be hereafter issued for the same, or a part thereof, contrary to the provisions of this act, the same shall be null and void.”
The agreed facts show that this labor of land, here in controversy, had been selected by Stephen F. Austin during his life-time, long before the enactment of the foregoing statute; that it was thus selected by him as a part of his premium lands, as empresario of Austin’s colony, and known as his labor of land No. 4, situated above the town of San Felipe, on the west side of the Brazos.
It appears by a reference to the case of Houston v. Perry, referred to in the statement of facts and in the charge of the court, as it is reported on page 56, 2d Texas Reports, that the field notes of the survey of the land in question were embodied in the petition of the executor of
When this decree was made, the labor of land in controversy was not only i:surveyed” land within the meaning of the act of 1850, but it was titled land, as meant and intended by that law. The republic of Texas had the undoubted right, by the exercise of its legislative will, to divest its title to any part of the public domain in any mode it saw proper, unless restricted by some constitutional provision. It saw proper to confer upon the district courts jurisdiction to settle the claims of empresarios to land under their contracts with the former government, by entertaining suits for that purpose, to be instituted against the republic of Texas, with authority to try the same “as all other land suits are tried.” See secs. 26 and 27 of an act relating to the establishment of a general land office, passed December 14, 1837, page 71, vol. 2, Laws of Republic.
The supreme court has conclusively construed the extent of the jurisdiction which was conferred by the above law, both in cases where the adjudication to be made under it involved the claim of the empresario to have his claims and rights to lands settled and confirmed, which had been deeded to him as such, and his rights adjusted by decree, confirming the title to so much thereof as might be determined to belong to him under such contracts, as in Houston v. Bobertson, 2 Tex., 1, and incases where suit was brought, as in Houston v. Perry, 2 Tex., 37, to have decreed to the empresario the title to land which had been selected under the former government,
If, therefore, the land in question was situated within the limits of the colonies of Austin, DeWitt or DeLeon, the location upon it, after the 5th day of February, 1850,' of any evidence of land claim, of any kind whatever, the patent issued by the commissioner of the land office for the same, by virtue of such location, would be, under the act of 1850, null and void.
That it was located within Austin’s colony, the court judicially takes cognizance of from the facts agreed upon as to the locus of the land; it is situate in Austin county, the boundaries whereof are defined by law. The limits and boundaries of Austin colony were alike defined by the political power of Coahuila and Texas. See Executive Decree Ho. 24, White’s Hew Recopilación, p. 613, in which the boundaries of the colony are established; within the limits of which colony the county of Austin was embraced.
The boundaries of counties, as municipal subdivisions, are matters of judicial knowledge. State v. Jordan, 12 Tex., 205.
“The fact that a particular section of country was comprehended within the limits of the colony contract of Austin and Williams, until the rights of Robertson were established by the decree of the 29th of April, -1834,” it wns held in Robertson v. Teal, 9 Tex., 344, “is public and notorious. It is a matter belonging to the public history of the times. It exists, or should exist, for perpetuation, among the public archives. It was involved in
In Williams v. Simpson, 16 Tex., 434, the court took judicial notice of the fact that the contract of Vehlein was extended for three years by decree No. 192 (Laws of Coahuila and Texas, p. 195), from the 21st day of December, 1832, and it was remarked in the opinion, that this was a fact in the public history of the country, published among its laws, which the court was bound to notice, without averment or proof. These decrees, it will be noticed, are to be distinguished from the general laws of Coahuila and Texas; which discrimination was observed by the court in its opinion, which treats them as matters of public history. See, also, 1 Greenl. Ev., sec. 6.
It being thus made to appear from the evidence, that the title under which the appellee claimed was a survey made in July, 1851, and a patent issued in October, 1851, and that the land was the identical land which had been surveyed and titled within the colony of Austin, to the executor of Stephen F. Austin, under whom the appellant derives title, it follows, as a consequence, that under the plain denunciation of the law of February 5, 1850, the location and patent were both absolutely null and void. Such mere semblance of title being a nullity, it cannot, together with the mesne conveyances down from the government to the appellee, constitute color of title from and under the sovereignty of the soil; it would be, rather, a mere seeming consecutive chain of title up to the sovereignty which had denounced its very origin as null and void. A void grant is not a title, or color of title, under which a possession of three years will bar an action by the true owner. See Smith v. Power, 23 Tex., 29; Marsh v. Weir, 21 Tex., 91. And so, it would seem,
Whatever rights the appellee may insist upon, under the facts of this case, must be such, if any he has, to which he may be entitled as an innocent purchaser, for value paid in good faith, without notice, actual or constructive, of the appellant’s title. We are of the opinion that he could acquire no valid title to the land under the doctrine which courts of equity apply ordinarily to such innocent purchasers; and besides, he being chargeable, as a subsequent purchaser, with the knowledge of the recitals of his deeds and the patent through which he claims, and therefore with the knowledge of the locality of the land, he is bound thereby, and is held to have had notice of the facts recited in them which indicated where the land was situated. Peters v. Clements, 46 Tex., 123; Jackson v. Elliott, 49 Tex., 68.
When Crump acquired a deed from his vendor, without notice, in good faith and for value, he obtained no title from the state of Texas; he obtained no more than his vendor himself possessed; for the government had by law repudiated as null and void all acts of its officers or others who had been instrumental in simulating by forms its conveyance by patent, the land which it had before that time already conveyed by a decree of its court to another party, and which, with all other lands which had been previously surveyed or titled within the colony where it was situated, it had withdrawn from any appropriation whatever by the holders of claims for land against the state. As between two vendors of land from the
Thus, it seems that such a title can no more shield its possessor under the equitable doctrine which is applied to innocent purchasers for value without notice, than it could be made available as a defensive plea under the three years’ statute of limitations.
In the one class of cases, the equity rule of the com
If the application of the equitable doctrine which affords protection to an innocent purchaser can be so applied to the facts of this case as to vest the title in the appellee, it would be difficult to harmonize the repugnant elements which must be combined, in order to evolve the paradox that a title null and void, and which has come into existence both against the express denunciation of nullity, and a distinctly defined public policy, exempting surveyed or titled colony lands from location and patent by holders of land claims, shall prevail over the older and perfect title. The anomaly appears all the more striking, when it would result in the frustration of a public policy, the aim of which was to prevent the confusion, doubt
Under this view, if it be a correct one, it is not necessary to consider the facts as to whether the appellee was, in contemplation of law, an innocent purchaser, without notice and for value; it is agreed in the statement of facts that he was such innocent purchaser. But if, as a matter of law, he was chargeable with the recitals in his claim of title (Peters v. Clements, supra), and that title showed that the land was located and patented after February 5, 1850, in Austin’s colony, he could not, being bound to take notice of the laws of the land, be an innocent purchaser. He would be held to know that the title he had purchased was void. If the recitals in his line of title failed to show those facts, he would nevertheless be chargeable with the knowledge as to where the land was situated, and that the patent was issued in 1850.
These facts are of a nature which point unerringly to the authentic source of all the other facts essential to be ascertained in order to apprise him, by making inquiry, of the validity or invalidity of his title, viz., the general land office; where he would find evidence of the location, survey and dates thereof, which, with his knowledge of the locality of the land, would have led inevitably to the knowledge of all other requisite facts. This amounts to notice; for whatever puts a party upon an inquiry, amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and
But little more need be expressed by us concerning the merits of this appeal:
The law, as given to the jury in the charge, required them to find in favor of the defenses relied on, viz., that of innocent purchasers without notice, for value, and the statute of limitations of three years, if they found for him at all. The defenses are distinct, and should have been presented in the charge separately in their proper relations to the subject under the evidence. On this account, however, it does not appear that the appellant complains, nor that he was injured thereby. It imposed upon the appellee, indeed, a greater burden than was warranted, to require both defenses to be supported by satisfactory evidence before he was entitled to recover on either. The discussion which we have given of the whole subject in this opinion renders it unnecessary to make special reference further to the charge of the court. The charge assumed the validity of the appellee’s title under the facts of the case, and charged the jury directly that the appellant’s title, as against that of the appellee, was invalid, if the latter was a purchaser in good faith, for value, and without notice. In that view, we are of opinion that the court erred, and that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 15, 1881.]