27 Tex. 393 | Tex. | 1864
The original plaintiffs in this case do not complain of the judgment which was rendered against them in the court below. The controversy is now carried on by some of the original
The first question presented for our consideration, in disposing of this case, is, to whom was the land in dispute granted by the government? Did Cottle or Richards acquire a superior right by their respective titles ? Cottle’s grant was first in point of time, and is therefore unquestionably superior in right, unless it must be held void, because the locus in quo was not within the jurisdiction of the officer by whom it was issued. The uncertainty and confusion of the colonial contracts of the former government in respect to their boundaries, as well as the frequent conflicts between, and the disputes and controversies among, the officers engaged in carrying them into execution as to the limits and extent of them jurisdictions necessarily resulting therefrom, are well known historical facts, and have often been illustrated in this court. The limits of many of the different colonial grants, among which almost the entire territory of the ¡átate was parceled, were fixed by mere imaginary lines. The vague and imperfect information of the government officials with whom the contracts were made, with respect to the distant and almost uninhabited province which they were parceling out, necessarily resulted in the frequent discrepancy between the localities or land-marks designating their boundaries, as called for in the contracts, and as, in fact, found upon the ground. It was not contemplated that the colonial boundaries should be ascertained and marked off by actual survey before they were to be carried into execution. In fact, this would often have been impracticable; and the division lines between the colonies, were really a matter of but little public importance. The object of the government was to populate the country. It was immaterial with the government, from what empresario the settler derived his title. Under these circumstances, we think it could hardly be seriously urged, that a title issued in good faith, and within the limits in which the officer issuing it was accustomed to exercise his jurisdiction, and within the limits to which he might reasonably have concluded his authority extended, should be declared void upon the ascertainment of the fact, years after-wards, that it was a short distance beyond his colonial limits. In
The title which the defendants, who claim under it, derive from the contract between Cottle and Brown is one which, under the former decisions of this court, they can not enforce, without additional equities from any that are presented in this case, against the heirs of Cottle. (Clay v. Cooke, 16 Tex., 70; Desmuke v. Griffin, 10 Tex., 113; Hunt v. Turner, 9 Tex., 385; Hunt v. Robertson, 1 Tex., 748.) But it has, also, been more than once decided by the court, that in such cases the heirs of the grantee can not enforce their legal title against the parties claiming under such a contract, without refunding the consideration received by their ancestor. If the question were one of the first instance, we might, perhaps, hesitate yielding it our assent; but it must now be regarded as no longer open for discussion. The instruction given the jury correctly enunciated the rule established by this court. (Mills v. Alexander, 21 Tex., 154; Hunt v. Turner, 9 Tex., 385.)
The only other questions in the case grew out of Ledyard’s assertion of title under the statute of limitations. We see no grounds for supposing that any injustice has been done him, either in the general principles proclaimed in the instructions given to the jury, or in their verdict upon the issues submitted to them. Ledyard claims title by possession under both the fifteenth and sixteenth sections of the statute. To sustain his title under the last, he relies upon the possession of Ward, one of his vendors. The duration of Ward’s possession was submitted as a question of fact to the jury, and we can not say that then- finding was improper, either in respect to the time he had held the possession of the land, or as to the payment of taxes. But if it were conceded that he held it from the day of his purchase until he sold to Led-yard, and paid taxes upon it during all of that time, it would make the case no better: it would still be less than the time required to complete the bar under this section of the statute.
We can not agree with counsel, that Ledyard’s interlocutory judgment against De Witt, in his former suit,, which was still pending, entitled him to a judgment in this case. It is still within the control of the court, and may be set aside for good cause, and the party permitted to answer. There can be but one final judgment in a cause; and until this is rendered, a party against whom the default judgment is rendered is not finally concluded, even if the plaintiff in that case could have a final
The judgment is reversed and the case remanded.
Reversed and remanded.