11 Tex. 656 | Tex. | 1854
The plaintiff expresslv admitted the defend -
But waiving this view of the case, the principal question in the Court below, was upon the validity of the defendant’s title; and it doubtless was to obtain a final determination of that question, that the case was brought to this Court. We shall proceed, therefore, to dispose of that question; which will dispose of the case, and will supercede the necessity of considering the other questions presented.
The title, though, as appears by the admission of the plaintiff, filed among the papers in the cause, is not copied into the record. This is not the fault of the appellee, and cannot operate to his prejudice. It is admitted to have been issued to the grantees by the Commissioner of Austin’s colony in 1824; and it is to be taken to have been issued in due and legal form. The fact in which the alleged fraud and illegality were charged to consist, was in making the grant to two single men, as to a family. This evidently was the sense in which these averments were intended, and, as there is no averment of any other fact or circumstance affecting the title, to which these averments can apply, they must be taken and considered in that sense. It evidently was not intended to impeach the title on the ground of any actual imposition or deception practiced
If it were an open question, now for the first time to be determined, we might feel no hesitancy in deciding that two single men did not constitute a family in the proper acceptation of that term. But what should be held to constitute a family within the contemplation and intention of the Colonization Laws was a question of judicial construction and interpretation, which was submitted to the authorities appointed and empowered to execute those laws, and is believed to have been settled, in so far as respects the present question, by cotemporaneous construction and usage. It is believed to have been the construction and understanding of the law, adopted and acted upon under Austin’s first contract of colonization, and continued in practice down to the period of colonization under the law of 24th of March, 1825, (which made special provision for the granting of land to single men,) to make to two or more single men uniting in a petition, a grant of land as to a family. This, doubtless was done under the belief, that, although the law, in terms, mentioned only families; yet this was a comprehensive term, susceptible of a more enlarged or more restricted meaning, and as it evidently was the policy of the law to encourage the immigration of single men as well as of
It is matter of history, and it is known to the Court by its records, that such was the construction and practice under the law. Under this construction titles have been acquired and transmitted, and rights have grown up, which have hitherto been respected. Upon titles thus acquired parties have reposed for a quarter of a century, without the apprehension of insecurity. Their validity does not appear ever to have been questioned or doubted by the former authorities of the country. Under these circumstances, we think the question of the validity of such grants cannot, at this day, be considered an open question. Where questions were fairly submitted to the former authorities of the country, upon the construction of their laws, we have never undertaken to sit in judgment upon their action, as a revising Court, authorized to entertain appeals from their adjudications. On the contrary, where questions were thus submitted and decided, we have held their action and adjudications, as to rights acquired under them, conclusive upon all questions properly within their cognizance, when not affected by any question of intentional fraud, or the unauthorized usurpation of authority. The security of property and the repose of society demand the consistent maintenance of
Upon the principles which have been recognized in repeated decisions of this Court, it must, we think, be held, that cotemporaneous construction and usage have settled the law upon this subject, in favor of the validity of the present title. (Houston v. Robertson, 2 Tex. R. 26, 27; Holliman v. Peebles, 1 Id. 699, 709 ; Edwards v. James, 7 Id. 372; Hancock v. McKinney, Id. 384; Jenkins v. Cambers, 9 Id. 167; Robertson v. Teal, Id. 344; Bissell v. Haynes, Id. 556; Styles v. Gray, 10 Id. 503.) There was no error, therefore, in rejecting the plaintiff’s evidence of a junior title; and the judgment is affirmed.
Judgment affirmed.