Hatch v. Dunn, 11 Tex. 708

Hatch v. Dunn

11 Tex. 708 | Tex. | 1854

Wheeler, J.

It is objected to the judgment. 1st. That the Court erred in admitting in evidence the translated copy from the land office, of the colonization contract of Power & Hewitson, with the accompanying documents.

2nd. That the Commissioner of the colony had no authority to admit the grantee as a colonist, and to issue to him the title, after the expiration of the contract; and

3rd. That the grant is void, because the grantee had not, at the time, a family consisting of a wife or children.

It might suffice, as an answer to the objection now urged to the admission of the evidence in question, that the objection *715was not taken in the Court below. The objection, however, 'if it had been taken in proper time, is not tenable. It was so determined in the case of Hubert v. Bartlett’s heirs : (9 Tex. R. 97;) and the same point has been ruled in other cases. (Spillars v. Curry, 10 Id. 143 ; Swift v. Herrera, 9 Id. 280.)

But it was not necessary for the plaintiff to have introduced the contract in evidence. That such a contract existed ; and that it authorized the contractors, Power & Hewitson, to colonize within the coast leagues, are facts which have been too often judicially ascertained, and are too notorious, to require at this day to be established by formal proofs. They are facts which have become a part of the history of the country, and are matter of judicial cognizance. (9 Tex. R. 344; Id. 556.)

This Court has held that the consent of the Federal Executive to a grant of lands within the coast leagues, need not appear upon the face of the title of a colonist. (3 Tex. R. 510.) The title itself, in this case, afforded jprima facie evidence that the land granted was within the colony, and consequently within the consent to colonize, extended to the contract under which it issued; and there was no necessity to give the contract in evidence for the purpose of showing that consent. (9 Peters, R. 134 ; 9 Tex. R. 233.) Its admission by the Court, however, was not improper; and cannot have operated to the prejudice of the defendant.

In respect to the supposed invalidity of the plaintiff’s title, by reason of the want of authority in the Commissioner, to admit him as a colonist and issue to him the title after the expiration of the time appointed for the completion of the contract, it is to be observed that it does not appear by the record that the plaintiff was admitted as a colonist after the expiration of the contract. It appears that in his application for a title, on the 20th of September, 1834, which was after the time limited by the contract for the introduction or admission of colonists had expired, he states that he had selected his land with the consent of the Empresario. But how long, or at what time previously, he had been admitted or received by *716the Empresario as a colonist, and had,so selected his land, does not appear. He had been an inhabitant within the colony long before thejperiod of the expiration of the contract: and either had been, or was entitled to be admitted as a colonist; and in either case his title cannot be impeached on the ground that there is no evidence of any formal act of admission or recognition of him as a colonist, other than his title subsequently issued. Ho such act was necessary to confer on him the rights and privileges of a colonist. (Hamilton v. Menifee, present Term.) It could be no objection to the admission of the plaintiff as a colonist, that he represented to the Commissioner in his application for his title, that he had been ten years in the country and was a Mexican by law: for the Empresario was required by the contract, to receive as colonists all Mexican families that might present themselves in the character of settlers.

The 30th Article of the law of the 26th of March, 1834, while it inhibited the making of any contract for colonization in future, provided for the fulfilment of all those which had been previously made in accordance with the law of the 24th of March, 1825. (Decree 272, Laws and Decrees p. 251.) That law did not require that the titles to colonists should be made out and extended in form, before the expiration of the time appointed by the contract for the introduction of colonists. All that could be required under the law was, that the colonists should have been introduced or admitted in the colony within the prescribed period. The instructions to Commissioners were repealed by the 29th Article of the law of 1834, above referred to, only in so far as they were opposed to its provisions: and, of course, they remained in force for all the purposes contemplated by the provision of the 30th Article. Colonists might be admitted up to the very time of the expiration of the contract. And a sufiicient time must necessarily have been allowed them, afterwards, to select their lands; and for the making of the surveys and the preparation of their titles. It was a necessary consequence of the right to admit colonists *717up to a certain day, that time should be allowed for extending their titles afterwards, and that the Commissioner should be authorized to enter upon and continue the exercise of the functions of his office, until the titles of the colonists were all completed. It can be no objection to the title, that it was not issued until after the time limited by the contract, for the admission of colonists.

The remaining objection to the title cannot be maintained consistently with the decisions heretofore made on similar questions. The present cannot be distinguished in principle from the case of Hardiman v. Herbert, lately decided, (Ante, —) and see Styles v. Gray, 10 Tex. R. 503; 9 Id. 167 and 30 ; Id. 503-4.

It is not believed ever to have been considered necessary, to entitle the applicant to lands, as the head of a family under the Colonization Laws, that he should have had a family consisting of a wife and children. On the contrary, having domestics, or servants, was considered as equally entitling the applicant to the grant. It cannot be supposed that the applicant, in this case, was less entitled to favor under the laws in force at the time, in consequence of having Mexicans, instead of Africans employed in his service. The former class were not certainly regarded with less favor by the then government of the country, than the latter. There is no evidence of any deception or fraud practiced in obtaining the grant; and fraud is not to be presumed. But if it were legitimate, in any case, to infer fraud from the fact that a party had obtained a grant to a greater quantity of land than by law he was entitled to receive, such an inference would be repelled in the present case, by the fact that the grantee had resided in the colony for years, and must have been well known to the Empresario. Whether he had a family within the true intent and meaning of the law, was a question, which it properly and exclusively appertained to the officers appointed and empowered by the law to pass upon the qualifications of the applicant, that is, the Empresario and Commissioner, to decide; and the cor*718rectness of their decision upon the evidence before them, which constitutes no part of the title and which the grantee was not required to preserve, it would be exfcremly unreasonable as well as unprecedented, after a change of government and the lapse of so many years, for this Court to undertake to revise, upon such evidence of his right as the party may now have it in his power to produce. Such an assumption of authority would be alike unwarrantable, and dangerous, as being subversive of established principles which lie at the foundation of all our rights of person and property, and on which their permanency and security depend: principles, “ which time has “ consecrated by the certainty of the law, and the security and “ repose which an adherence to its rule affords to the rights of “ property and person.” (Per Baldwin, J. 14 Pet. R. 626 ; 9 Tex. R. 583, 584; 7 Id. 443.)

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed,