15 Tex. 375 | Tex. | 1855
This case involves the title to a quarter of a league of land, granted by the Commissioner of Milam’s Colo-" ny to James Curtis, in 1835, and held by the appellee by regular mesne conveyances from the grantee. It was submitted to the Court upon the agreed statement of facts in the record ; and upon the facts stated, the Court held the title good and valid as against the locator, Burleson, and gave judgment accordingly for the appellee, McGehee. In proceeding tó give-judgment, the Judge (the Honorable William E. Jones presiding) stated concisely the grounds of his judgment, observing : “ It does not appear in this case, that any fraudulent mis- “ representations were made, or that the Empresario and Com- “ missioner were not fully advised of all the circumstances of “ the previous grant to Curtis in Austin’s Colony. The Com- “ missioner was authorized and required by law to decide upon “ the qualifications of colonists to receive land; and his deci- “ sion of that question was an act of judgment, which, although “ it may have been erroneous, yet the error does not make the “ grant void ab initio, and the land vacant, as if no such grant “ had issued. Nor is the error of judgment in the Comrnis- “ sioner revisable at all; or if so, only at the suit of the State,”’
It cannot be said that there was a want of power in the officer, Undoubtedly he had the power and authority to issue the grant. He was made, by the law, the judge of the qualifications of the grantee. It was for him to decide, under the law, whether the grantee, having performed the conditions of his former contract with the Government; having received and disposed of the land, which was the consideration for the performance of those conditions on his part; and having become thereby wholly absolved from any further obligations to the Government as a colonist, whether he was incapacitated from becoming a colonist in a new enterprise. What was there, it may have been urged, to incapacitate him ? He had fulfilled every duty he owed to the Government under his former contract. He had sold the land to another, who, perhaps, had been thereby induced to come to the colony, and had taken Ms place as a citizen of the country. He was as free to leave
We think the construction of the law, adopted and acted on by the officers, in admitting the grantee as a colonist, and extending to him the title in the present case, is certainly not less defensible in principle and reason, than that which was adopted in determining what should constitute a family, in contemplation of the law of colonization of Austin’s first contract, which this Court did not feel itself authorized to revise. (Hardiman v. Herbert, before cited.) Though fewer titles may have been issued under the construction of the law adopted in this instance, than under that to which we have adverted, yet those which were issued have, doubtless, long since been transferred, and are now held by those who, as in this instance, have fairly acquired them by purchase. And the consequences of revising and annulling the action of the former authorities of the country in issuing them, would be as disastrous to the few innocent purchasers who hold under titles thus issued, as if their number were greater, or the practice of thus extending titles had been more general; as it probably would have become, if the system of acquiring lands by colonization had been longer continued.
The appellee in this case is equally entitled with others, whose rights have been the subject of contestation, to invoke the application to his case, of those salutary and well established principles of law, which forbid the annulling of rights acquired under the authorities of the former Government, by disregarding the construction placed upon the laws by those
Judgment affirmed.