The grounds on which the defendants, by their answer, sought to impeach the validity of the grant, under which the plaintiff, claims, were, 1st. That the grantee did not enter upon and cultivate the land within six years, and that he abandoned the country before the expiration of that period. 2nd. That the consent of the Executive of New Mexico was not obtained to the making of the grant, the land lying within the border leagues.
The grant, under which the plaintiff claims, was issued by the Commissioner Smyth, under the 32nd Article of the Law of the 26th of March, 1834; and the decision of the Court in the case of Blount v. Webster, (16 Tex. R. 616,) has settled, in reference to grants of the character of the present, that neither settlement, nor the consent of the Federal Executive of Mexico was necessary to their validity. (Smith v. Power, 14 Tex. R. 146.) It is proper to mention that this case was tried before the decision in this Court in Blount v. Webster, which may account for the error of the Court in charging the jury, contrary to the doctrine established in that case, to the effect, that the consent of the Executive of Mexico was essential to the validity of the grant.
The only ground of objection to the plaintiff’s title, suggested in the answer, which is not disposed of by the decision in Blount v. Webster, is the' alleged abandonment of the country by the grantee. It is insisted that this is a fatal objection to the plaintiff’s title. And ■ so it would be, if the
It does not appear when the grantee sold to Brookfield, But if it was after he abandoned the country, and thereby lost his right, it devolved on the party impeaching the title to show it. The plaintiff is admitted to be a bona fide purchaser, of a title issued by competent authority, in the forms of law, and valid upon its face; and to have a regular claim of legal transfer from the original grantee to himself; and he must be deemed to have a good title, until the vice or defect, which will have the effect to annul it, appears. This was the elder, and therefore the superior title, and must have prevailed, under the pleadings and evidence, but for the error in the charge of the Court; which effectually precluded a recovery.
The fraud which will authorize the annulling of a grant in any case, is not a presumption or conclusion of law : in the language of Chief Justice Marshall, it is “not legal and technical, but actual and positive fraud in fact, committed by the person who obtained it.” (3 Pet. R. 341.) 'Fraud is not to be presumed, but must be proved. If it existed in this case, it must have consisted in the practicing of an imposition or deception upon the Commissioner by which he was induced to issue the grant, when otherwise he would not have done so. But there is no evidence of this. In the case of Russell v. Randolph, (11 Tex. R. 460,) it was shown that it was the common practice of the Commissioner, sanctioned by a high law officer of the Government, to issue titles as in this case, and upon similar representations, to applicants' whose families had not, and were known by the officers not to have arrived in the country. (11 Tex. R. 467.) The practice was in accordance with the construction placed by the officers upon the law; and the correctness of that construction is not now open to revision. (15 Tex. R. 590 ; 16 Id. 395 ; 7 Id. 384.) Such being the practice, sanctioned by the officers of the Government, private persons cannot be deemed to have practiced a fraud upon those officers by acting upon their own acknowledged construction of the law. Nor, in view of the practice, can there.be any ground to conclude, from the fact that the
The Commissioner who issued the grant was the exclusive judge of the merits and qualifications of the applicant. It was for him to determine whether he possessed the qualifications requisite to entitle him to the bounty of the Government; and it is well settled that his decision upon that subject is final, and will not be revised by this Court. The issue of the grant precludes inquiry upon that subject. (15 Tex. R. 590 ; 11 Id, 656, 708, 717.) Thus, in Styles v. Gray, (10 Tex. R. 503,) where it was proposed to impeach the grant by proving that the grantee, who had obtained the grant as the head of a family, “ was never a married woman, a widow or the head of a family,” this Court held that the evidence was rightly refused. Upon the same principle it would seem that the title of the grantee in this case cannot be impeached by proving that he had not a family in the country at the time of receiving the grant. It is to be observed, however, that in that case it was said that if it had been proved that the grantee had fraudulently .represented that she was the head of a family, and
But if, while the Government is content, a perfect title or patent regularly issued by competent authority, and which has, passed into the hands of an innocent purchaser, may be thus impeached by a junior claimant, without any prior equity, a different rule, it would seem, must apply in the case of a grant by the Government from that which obtains in the case of individuals. (Fletcher v. Peck, 6 Cranch. 133, 134, et seq.; Fowler v. Stonum, 11 Tex. R. 478, and cases cited.)
Considerations of public policy and justice may not forbid the admission of parol evidence for such a purpose, while the grant remains in the hands of the original grantee; if the assault upon the title be not too long delayed, until the holder has lost the original evidence of his right. But there certainly should be some period of time beyond which grants and patents should cease to be open to such attacks in the hands of innocent bona fide holders. The door should be closed at some time against the temptation to frauds and perjuries, otherwise there will be no security in paper titles. No one can safely purchase the fairest apparent title without taking the precaution to inquire into the circumstances attending its emanation ; nor can he ever be secure unless prepared at all times with living witnesses to explain away any circumstances of suspicion which may be attempted to be cast upon the origin of his title. If such evidence is to be received at any
Where fraud is imputed and proved, length of time ought not to shelter the perpetrator of the fraud. But in cases like the present, it is not the guilty perpetrator of the fraud, if there be such, who would be made to suffer its consequences ; but the innocent purchaser of what he had every reason to believe an unimpeachable title. And even where fraud is sought to be imputed to the possessor of the title, it is to be observed, in the words of Judge Story, that “ length of time necessarily obscures all human evidence; and as it thus removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption in favor of innocence and against imputation of fraud. (Prevost v. Gratz, 6 Wheat. 497.) “ The public,” it has been justly said, “ have a grave interest in having a limit fixed to litigation for the quiet of the community, and that there may be a period after which the possessor may know that his title and right cannot be called in question.” (Humbert v. Trinity Church, 24 Wend. 608 et seq.) That there should be some limit assigned to the admission of such evidence, on considerations of public policy, for the security of titles and the repose of society, cannot be doubted. What that limit should be, it is not our purpose at present to endeavor to ascertain. We have referred to the subject for the purpose of eliciting examination and inquiry whenever occasion shall require its further consideration. In the present case there was no allegation of fraud; and had there been, in the view we have taken of the case, it will be seen the Court would not be warranted in deducing it as a" legal conclusion from the evidence.
Reversed and remanded.