35 Tex. 509 | Tex. | 1872
The appellees brought the action of trespass to try title against the appellant, at the March "term of the district court for the year 1851. Both parties deraign title from Nestor Clay, who died about the month of October, 1835.
The land in controversy is one-fourth of the head-right league of Nestor Clay, who appears to have been the brother of Tacitus, the appellant.
It appears from the record that Nestor Clay derived his title through the Mexican government, by virtue of the colonization laws. His grant dates from the -eighteenth of March, 1831.
The only paper muniment of title (subsequent to the headlight grant) presented to the court by appellant is a paper called a title bond, and which in law must be -so considered, though it is to some extent informal and somewhat ambiguous. This paper was executed on the fifteenth of May, 1830; the consideration named and receipted for ivas eighty dollars.
There is no contest as to the validity of the bond, nor .as to the payment of the consideration named.
It appears from the evidence, that the appellant went into possession of the land in the year 1833 or 1334, by his agents. This possession has been continued since •¿that time, and both the right of possession and the
It is true there is some evidence to show that he was in some way dissatisfied about the lines and corners of the tract in controversy. We think, however, that a true interpretation of this evidence tends strongly to establish the grant; for, while complaining of inaccuracy about the lines and corners, it can scarcely be doubted that he would have said something with regard to the grant, if he had considered it invalid, or had entertained any design of repudiating it. It appears that sometime in the year 1835, this tract was surveyed by one Brown, a surveyor employed by the appellant, and that Nestor Clay accompanied the surveying party, and from Brown’s evidence it would appear that he was then satisfied with the survey. The appellant appears to have commenced making improvements of a permanent and valuable character immediately after he acquired possession, and as his brother Nestor lived until the month of October, 1835, the improvement must have been going on under his eye, as he lived upon the same headlight. The jury appear to have estimated the improvements at $3000, and this estimate must have been low enough; for it would seem that about one-half the land was brought into cultivation; houses and out-houses, and all the necessary appliances of a comfortable home, have accumulated upon the land, and it is not disputed that all has been done through the industry and outlay of the appellant.
It is unnecessary to notice the pleadings, except so far as to say, that the appellant defended his title on equitable grounds and under the pleas of limitation.
By the colonization law applicable to the States of Coahuila and Texas, of 1825, colonists, such as Mr.
The Mexican law of 1825 was a prohibition upon the colonists alienating their lands, but we are not prepared to say that this was such a prohibition as actually to cut off and preclude all equity in the grantee, as against the grantor and his heirs. The effect of such an attempt at alienation would probably have been a forfeiture of the laud to the government, which might, under a proceeding analogous to the inquest of office, have reclaimed the land and declared it vacant. Ho proceeding of this kind ever appears to have been taken against the land, or against any of the parties to this suit.
The Mexican law was not penal in its nature, in any other sense than that in which we have regarded it. The parties to a sale made in violation of its terms were doubtless so far offenders against the law. The law was intended to enforce a public policy—whether a wise one or not, is immaterial; it is, however, certain that it would not have been regarded with much favor in a common law court, as it was a law in restraint of trade and commerce ; but of this law quantum sufficit. It is not in every case where parties have violated even the most wise and beneficial laws that courts of equity will determine that no equities can arise between them; and after much consideration we are clearly of opinion that the case at bar is one of that class of cases in which the parties, though, in one sense, offenders against the law, as between themselves are not without equities.
The position assumed by the district court, that the title bond of 1830 is wholly void, and can have no legal
But the bond, although made in contravention of a law of the then existing government, opened the door to possession, occupation and improvement of the land; and the law itself being repealed in 1834, possession, occupation and improvement continued when there was no law against the alienation of the land by Nestor Clay; and he lived for a year or more after the inhibition had been removed, acquiescing in all his brother had been doing upon the land, xxttering no word of complaint, or in derogation of the grant; thus practically and legally giving the contract of the fifteenth of May, 1830, a new date, to-wit, the twenty-sixth of March, 1834, the date of the repeal of the prohibitory law. The instruction of the court, that “no subsequent acknowledgment or recognition could give validity or binding force to it; there could not be a novation or renewal of a contract which was void because made in violation of express law,” in its application to this case is manifestly erroneous, and would be in any analogous case. The only party in the world who could have had any right to intei’pose such a plea was the State, from which the title of Nestor Clay emanated. This was never done; and although it is not improper to refer this case to the determination of any law which existed and applied to the jurisdiction of the land and of the parties at the inception of appellant’s title, it is fair to presume that the parties, brothers as they appear to have been, in fraternal fellowship, acted in good faith toward each other; and what could there have been in this repealed law of Mexico to have prevented
We are thus announcing no new principle of the law, but we are following close upon the footsteps of oúr most learned and able predecessors. The district judge regarded the contract of May 15, 1830, as an absolute nullity; and proceeding upon that theory of the law, his charge obviously misled the jury.
In Means v. Eobinson, Chief Justice Hemphill, treating a similar question to that before us, and expounding the principles of the law as it existed prior to the revolution (7 Texas, 516), says :
‘ ‘Absolute nullities were of two kinds, those resulting from stipulations derogating from the force of laws made for the preservation of public order, and those established for the interest of individuals. The former are not susceptible of ratification; but if, by subsequent dispositions of law, or by succession of time, such stipulations cease to be illegal, they may from that time be ratified.” In the same case the learned Chief Justice quotes with approbation the following sentence from Febrero, to-wit: “The ratification of a void contract makes it a valid contract.” It is true that a void contract can only be ratified and made valid after the condition which rendered it void has been removed. We have applied this doctrine to the case at bar, believing it to be well founded on the broad principles of equity and justice; but our opinion is further fortified by the case of Hunt v. Turner, 9 Texas, 385; by Mills v. Alexander, 21 Texas, 164; Wills v. Abbey, 27 Texas, 204. In Hunt v. Turner, Mr. Justice Lipscomb somewhat philosophically discusses this question, and with such ability as to challenge our profound admiration.
In the still earlier case of Dugan v. Colville, 8 Texas, 128, Mr. Justice Wheeler, in a very lucid opinion, lays
These principles certainly apply with great force to the case at bar. Again, in the case of Williams v. Chandler, although- the case is quoted by appellees’ counsel as authority for the view they take of this case, the doctrine of ratification is clearly recognized; and we conceive that the only ground for the court not distinctly and fully stating in this case the rule as laid down in the other cases we have referred to, is found in the wide difference between the facts in that case, from the others; and the implication in this case is clearly discernible that Williams’s title would have been sustained by the court if accompanied by the equities which belong to the other cases, but to none more strongly than the ease at bar.
The same remark will apply to the case of Hunt v. Robinson, 1 Texas, 748; yet we admit that taking merely the syllabus of this case into consideration, the practitioner would be misled. Indeed, Mr. Justice Lipscomb in that case appears to have inferred a doctrine from Chitty on Contracts, which appears to clash with his own subsequent opinions. Whether he meant to approbate the doctrine, as he understood it, does not clearly appear from the opinion. The learned judge recognizes the fact, that by the common law there was once a difference between the law which only forbid the doing an act, and the law which imposed a penalty for the breach. But he derives from Chitty the idea that this distinction was no longer recognized in the English
Our recent laborious examination of the case of Mills v. Raney (decided at the present term) has abundantly satisfied us that, however this doctrine may be regarded by the English courts, neither our own commentators nor jurists have so understood it. There is, however, in this opinion, a reference made to the case of McElyea v. Hayter, 2 Porter, 145, in which Chief Justice Salford remarks, “ the principle is not necessarily the same as if, instead of this power (meaning a power of attorney to Campbell to convey the land to Hayter when the patent should issue), a bond for title had been executed at the same time, and McElyea had afterwards, when in possession of the patent, executed the deed pursuant to the previous void agreement. In this latter case, the subsequent execution of the conveyance would have constituted a new contract, when there was no restriction against it.” It does appear that here is an acknowledgment of the power of Nestor Clay and his brother Tacitus to have renewed their contract, without any new consideration, after the law of 1825 was repealed; and if the appellant was then in possession, by his own pedal occupancy, or by that of his agents, and continued so, by and with the consent of his brother Nestor, such equities have grown up in his favor as no court of equity jurisdiction would be authorized in setting aside.
Both the land and the parties to this suit have passed under a new jurisdiction; and if the Mexican law of 1825 had never been repealed, we should not give it the same sanction, nor attach to its violation the same penalties, which we would feel bound to do were it a law
In the case of Burleson v. Burleson, 11 Texas, it was contended that a new consideration was necessary to support the ratification of a contract for a sale of lands made by a colonist prior to the repeal of decree 190, but the court overruled this doctrine. This was a case very much like the one at bar, a contest between the heirs of one brother and their uncle. The heirs of Jacob Burleson stood very much in the position before the court in which now stands the appellant. The court upheld their equities ; they and their father before them had been for a long time possessing and improving the lands which their uncle John had promised to convey to them; and although the original contract was void under the law of 1832, .restraining the alienation of lands, the court upheld their title.
The opinion in this case was also delivered by Mr. Justice Lipscomb, who says, on page 9, <! A party permitting such possession, so acquired and improvements made, raises an equity against him that will override his legal title. Such facts amount to a ratification of the covenant, and it is too late to say that it is not supported by a good consideration. Had there been no covenant shown, these facts would have raised the presumption of title to support the possession” ; and the court here refers to the case of Lewis v. San Antonio, 7 Texas, 288. In this case the jury found against the appellant for the
We are referred to our own language, used in the case of Clayton v. Frazier, and we do not hesitate to adopt it in this case. The appellant must be an aged man; he purchased the land in his youth, at a time when, according to the evidence and the known history of the country, the consideration he paid for it was a fair equivalent. His labor and his means, aided by the subsequent development of the country, have no doubt greatly enhanced its value. The law does not say he must now give up this valuable, and no doubt cherished home, because he once bought it for the paltry sum of eighty dollars. Pronouncing upon the law as we understand it, and for the reasons given, the judgment of the district court is reversed, and the cause remanded, to be proceeded in in accordance with this opinion.
Reversed and remanded.