15 Tex. 593 | Tex. | 1855
It is insisted for the appellee, that, this being a suit originally between the appellee and the Government, under a statute which authorized the bringing of the suit for a specific purpose, “ to settle the claims of Empresarios,” (Dig. Art. 1821, 1863,) none other than those contemplated by the statute could become parties to the suit; and, consequently, that the appellants had no right to intervene, for the purpose of having an adjudication of their rights respecting -the matter in litigation, as against the original plaintiff in this action. In this view, however, we do not concur. The right of the intervenors, to claim the protection of the Court againstlthe action sought by the plaintiff, wherein it was proposed to adjudicate directly upon their title, did not depend upon the statute, but on general principles; which allow a party to intervene in such cases, for the purpose of protecting his rights, find avoiding the necessity of future litigation for the same cause. The
It is to be observed that the only parties before the Court, and entitled to be heard, upon this appeal, to complain of the judgment, are the interveners Herndon and Mason. The other interveners have not joined in the appeal. It is only necessary, therefore, to revise the judgment in so far as to- ascertain whether the errors complained of affect injuriously their rights. And first as to the intervenor and appellant Herndon. It is not pretended that he had any rights as against the plaintiff prior to the institution of this suit; nor indeed does:it appear that he had acquired any right touching the matters in controversy prior to the judgment first rendered in this case. He claims the land in question by locations made during the pendency of the suit. And it would seem clear, on general principles, that he could not thus acquire a title to lands claimed by the plaintiff in the suit, which he could set up to defeat the plaintiff’s claim of title as against the Government, ¡ His case would seem to rest on no higher or different grounds from that of a purchaser of property in litigation, from a defendant, pendente lite; who acquires no interest as against the title, whether legal or equitable, of the plaintiff in the suit. He is charged with constructive notice by the pendency of the suit, so as to render the interest he might have acquired by his purchase subject to abide its event. The sale, as against the plaintiff, is considered a nullity. (Briscoe v. Bronaugh, 1 Tex. R. 333 ; see Lee v. Salinas, supra.) The identical land now-claimed by the appellant by locations made since ¡the commencement of this suit, was claimed and sought to be recovered of the Government by the plaintiff in the suit. Gan it bepoubted that the Court had the power to adjudge itl to him - or that the judgment would be binding upon one who purchased from the defendant during the pendency of the suit ?;
But it is insisted that the Court did not and ought not to decree to the,plaintiff the land, because the title he had re
It will not, I apprehend, be now questioned, that the Court had the authority ?and power, under the law, to decide upon the question^ right, and decree title to the plaintiff, as against the Government. That question was authoritatively and finally settled by the former opinion and judgment of the Court in this, and other cases. The only question, therefore, is as to what, in fact, was adjudged as to the right of the plaintiff in this regard. And it certainly and clearly was adjudged that the plaintiff was “ entitled to receive for his premium lands, “ titles to fifteen leagues and twenty-three labors but having received titles to a greater number, “ he is now entitled to the “ first fifteen leagues in the consecutive order of the dates at “ which the titles were issued.” And it cannot be doubted that this would have been the final judgment of the Court; confirming the plaintiff’s title to these lands, and annulling it as to others, if it had not been apprehended that his right to some of them might be defeated by older and superior titles, or that the rights of purchasers from him might be prejudiced. As between the plaintiff and the State, it was clearly adjudged that he was entitled to have confirmed to him the fifteen leagues and twenty-three labors thus designated by the decree. These include the land claimed by the appellant, and it would seem quite too clear for controversy, that the plaintiff’s right, under the decree, to take and have confirmed to him the title to these lands,, cannot be defeated by locations subsequently made, or made during the pendency of the suit.
But, because the lands selected and claimed by the plaintiff are referred to in the decree, as lands ‘‘titled” or “deeded” to him, it is contended, it should not include those here in controversy, to which the titles had not been executed in due and legal form; there being no first original or proctocol duly-executed, but only a testimonio. It, however,-will be seen by
The appellant had purchased from the plaintiff one of the titles issued to him for premium lands, before the institution of the suit; and, it appears, had paid the plaintiff value for it. This title the plaintiff, therefore, had appropriated to himself, by disposing of the land conveyed by it to a bona fide purchaser for value ; and had thus put it out of his power to surrender back the title to the Government to abide the judgment of the Court in this case. Having sold it and appropriated the proceeds, he had not the rightful control of the title; and could not surrender it up to be cancelled. Nor could he ask its cancellation without a flagrant breach of duty ánd good faith towards his vendee. To devest the purchaser of) his title, thus fairly acquired, thereby to confer a benefit upon the plaintiff ; or to permit the latter to benefit by the perpetration of such an outrage upon the rights of his vendee, would be an iniquity and injustice which it was not to be supposed the Government would intentionally sanction ; and which) a Court of equity could never tolerate. The appellant’s case ¡ was not then before the Court. But it was from an apprehension that there might be such cases of sales by the plaintiff of some of the lands to which he had obtained titles, and proceeding upon the maxim that he who seeks equity must do equity; and, therefore, that relief should be refused the plaintiff, unless in taking the relief accorded to him, he would do justice to' others; that the Court proceeded in imposing the restriction upon the plaintiff’s right to pretermit lands previously granted,] that it should not attach to lands which had been “ sold, alienated, or “ otherwise disposed of by the deceased in Ms lifetime, or by “ the appellee since his death.” There can be no question that the appellant’s case comes within the operation of the equitable maxim and principles upon which the Court decreed in favor of the plaintiff; and that his rights were as certainly in
The first fifteen leagues and twenty-three labors, or the earlier titles, were designated, not because they were deemed to possess any greater intrinsic virtue or validity than the others; or because they were deemed, in themselves, valid and the others invalid ; but it was considered more equitable to give the plaintiff his first selections ; that his equity would, perhaps, first attach to them; if he had alienated any of the lands, it was most likely these; hence, if the fact were so, he was forbidden by the decree to pretermit them ; in fine, it was the natural and convenient order to be observed in making the designations. But it cannot be doubted that the Court, if it had seen proper, might just as well have reversed the order, and required him to commence with the last in point of time, in making his designations of those he would have confirmed. As to any supposed right of his, arising from the intrinsic value of any of his titles, it is evident none such was recognized, by the decree: else he would have been confined to those, and would not have been allowed to pretermit any of them, and select others in their stead. It was the natural order ; and it was deemed equitable, to permit and compel the
It is insisted that the appellant cannot complain of the judgment, because, it is said, he did not make proof, upon the trial, of Ms purchase. But to this it must be answered, that the fact of Ms purchase was not put in issue by the answer to his petition of intervention. His conveyance from the plaintiff was alleged, and made an exhibit to his petition ; and the answer of the appellee did not deny, but tacitly admitted it; and there was, therefore, no necessity of proving its execution. Besides, the Court decreed against him, not upon the ground of any defect of proof; but upon the other ground, that, not being embraced in the earlier titles, the plaintiff could not be compelled to include that of the appellant in Ms selections.
Ordered accordingly.