12 Tex. 546 | Tex. | 1854
The only question presented in the present attitude of this case is, whether a purchase of land from a vendor, out of possession, and where this is held adversely by another under a claim of title, is valid and effectual to convey such title as will support against strangers an action of
It will be admitted as a principle not to be questioned, that the power to alienate property is a necessary consequence of ownership, and is founded on natural right. (4 Kent, 441.) True, it must be subjected to the restraints suggested by convenience, and dictated by the laws ; but wherever restrictions of any rigor, from considerations of policy well or ill-founded, have been imposed on alienation, history reveals the fact of incessant struggles against the thraldom. And the success of these efforts appears to have been commensurate with the advancement of civilization, and of more just and enlightened views relative to the true uses of property as subservient to the multiplied wants of refined, social life. Without recurring to English history, and the ages of perpetual warfare there against the feudal shackles on the rights of alienation, we may, from the events of our own time and history, perceive how extremely distasteful are all restrictions on the power of the owner to dispose of his property. The restraints imposed for limited periods by the laws of colonization and emigration and on certain bounty claims were in a great measure disregarded and attempted to be evaded during their existence. Their limited periods were at times by law abbreviated, and those imposed for life entirely removed ; and so great, in fact, is the
All such provisions in England, whether derived from, the statute or the Common Law, were founded on a state of society which never had any existence in this country. We"read of chieftains attending Courts with hundreds of retainers; and of course, under such circumstances, mere rights of action should not have been assigned, because, according to Lord Coke, under “ color thereof pretended titles might be granted “ to great men whereby fight might be trodden down and the “ weak oppressed.” This is the reason given for not assigning choses in action or causes of action in those days ; and it is extremely cogent, where the assignment brought the great in conflict with the weak. But is this the only aspect of wrong presented by the picture of those times ? Let us suppose the man of humble station to be dispossessed by his powerful neighbor. If so, his chance of redress would be quite hopeless. The predicate of the hypotheis is that the great were beyond the reach of the Courts; and of course, as the disseizee could neither sell his right nor invoke the aid of such as could struggle with his oppressor on equal terms, he must yield such claims as could be sustained by neither judicial protection nor individual power.
Let that be as it may, and whether the reason given for the rule be or not a sufficient justification in the times to which it applied, one thing is certain: no such condition of society has existed in this State, to authorize, under pretence of defeating combinatory and unhallowed schemes of oppression, any such rule or principle as would deprive an owner of the right to sell his lands, simply because there was another in possession.
That any such policy would operate most mischievously will be apparent from a glance at the condition of land titles in this State, Lands held by individuals are often at remote
The fact that persons out of possession may sell titles which have no foundation in law and which may be purchased for no other purpose than vexation and the profits of litigation, is no sufficient reason why all lawful owners, ousted of possession, shall be deprived of control over their property. This would be punishing the community in order that some pests might not escape. If the ancient rules of the Common Law with respect to the non-assignability of mere rights or choses in action and also with respect to the modes of conveyance of real property, were still recognized, then there might be some rea
But, under the modern and ordinary forms of transfers, no actual possession is necessary to give validity to conveyances. The seizin by deed draws to it the constructive possession. And if there were any good reason for relaxing the ancient law with respect to the necessity of actual possession to the validity of a transfer, making constructive possession sufficient, there seems no good reason why the mere usurpation of a possession should invalidate a conveyance, when actual possession was not necessary to make it good.
There are some refined distinctions between the effect of a. disseizin and dispossession, and in a very elaborate disquisition appended to the cases of Doe v. Oliver and the Duchess of Kingston, in Smith’s leading cases, it is maintained that according to the present state of the law in England, where a title has been reduced by actual disseizin to a mere right of
But it is not necessary to trace the effect of these distinctions, as they will not control the decision. For we are of opinion that whether the owner be disseized or dispossessed, or by whatever name his being put out of possession may be denominated, yet that he has such right as will enable him to make a valid conveyance, effectual in law to support an action to try the title. This doctrine exists in some of the States.
In Pennsylvania it is said in 6 Binney,,421, that from the equality of persons in this country, there was no danger of maintenance, from the influence of powerful individuals, and the abundance and cheapness of lands rendered it necessary to admit of its transfer with almost as much facility as personal property. For these reasons, where deeds and devises of lands have been considered in our own Courts, it has never been made a question whether the grantor or devisor was in or out of possession. These remarks portray with great exactitude the condition of things in this State, and' the reasons which sanction a transfer by the owner out of possession have at least as much cogency in this State as in Pennsylvania.
The usage of the country has been generally, if not universally, based on the hypothesis of the power of free disposition of lands, whether the owner be in or out of possession. Many contracts have been made and rights have accrued on the supposition that such was the law of the land. The usages of a people, where there is no principle or one which is obsolete have much force in fixing the law itself. The fact that there is a different usage or different principle elsewhere, can have but little weight, as each State or community must adopt that which suits their own convenience or interests and their respective wants and condition. There may be, and there are states of society in which such a restraint on alienation would be necessary to repress the mischiefs of litigation which might flow from the unrestricted license of alienation. This condi
I have not discussed the doctrines of maintenance or champerty in this opinion, for the reason that they do not properly arise in the cause. Maintenance consists not so much in taking a conveyance of the whole or part of a thing not vested in the party by whom it is made, as in taking it in consideration of assistance or maintaining a suit for its recovery. This conveyance is of the entire interest or title in the property, and the vendor has no share or interest in the suit, and from general principles and from authorities in which no countenance is given to maintenance, it is admitted that a party may purchase the whole interest of another in a contract or security or other property which is in litigation, provided he does not undertake to pay any costs or make any advances beyond the mere support of the exclusive interest which he has acquired. (2 Story, Eq. 1050.) If he can do this after, he certainly on principle might do it before litigation. And if he can purchase mere rights in personal, there is no reason why he should not do the same in real property. Eo opinion is intended to be given on the question of champerty or maintenance, which can be decided when they are distinctly presented. Judgment reversed and cause remanded.
Reversed and remanded.