23 Tex. 234 | Tex. | 1859
The plaintiff claims the land in controversy, under a certificate located in 1855, and re-located in 1856, and again in 1857. The defendant is in possession, claiming under a grant to the empresarios, Power and Hewitson, of four and a half leagues, as their premium lands, issued by. the commissioner of the colony, on the 12th of October, 1834.
The main ground on which the plaintiff asserts the right to appropriate the land, by the location of his certificate upon it as vacant land, is, that the title under which the defendant claims is fraudulent and void.
There is no pretence that there was any misrepresentation of fact made by the grantees, or any imposition practised, or sought to be practised, by them upon the officer, in obtaining the grant. The fraud which will authorize the annulling of a grant in any case, is not legal and technical, but actual and positive fraud in fact, committed by the person who obtained it. (Per Marshall, C. J., 3 Pet. Rep. 341; Johnston v. Smith, 21 Texas Rep. 722.) There is no evidence conducing in any degree to support the conclusion, that there was any fraud in fact committed by the grantees in obtaining their grant. The evidence relied on to invalidate the grant is, that in their petition, the grantees stated that the number of one hundred families being completed, they were entitled to a premium of five leagues each; that one of the grantees had previously received one league as premium land; that subsequently to the issuance of the title here in question, they received a title to other five leagues as premium land; and that they had obtained a concession from the governor, under Decree No. 253, of the congress of the state, (Laws and Decrees, p. 230, 231,) granting them each eight
It might be a sufficient answer to this objection to the title, that the grant here in question is for a less quantity of land than the grantees were entitled to receive, and is unaffected by the subsequent grant. But if the prior grant of a league to one of these grantees would render this grant excessive to the amount of a fraction of a league, it does not appear that they have ever claimed title under that grant. For aught that appears, it may have been surrendered and vacated, by consent of the grantee and the government. The same may be true in respect to the subsequent grant of five leagues. But such subsequent grant, if excessive and invalid, could not affect the validity of the present title. (Edwards v. James, 7 Texas Rep. 372.) If, by reason of the former grant, the present is excessive, and subject to be reformed, it would not render the grant void, but only voidable at most, for the excess. And if it be conceded, that the appellant has the right to have it reformed in this action, to the extent of such excess, it does not appear that he would be benefited thereby. But the appellant has not the right, at his instance, to have the grant reformed for the excess, if it be excessive. That is a right which appertains to the government, and not to a subsequent locator. (White v. Burnley, 20 Howard, Rep. 247.)
It cannot be denied, that the grantees were entitled to a grant, by the government, of premium lands. The commissioner who issued the title, was bound, officially, to know how many families had been introduced, and the quantity of land to which the
These observations apply, in their full force, to the present case, upon the supposition that it was shown that the grant was, in fact; excessive. It was, at most, voidable, not void. The appellant had no interest to be affected by it at the time; nor does he appear to have acquired a right to appropriate any part of the public domain until many years subsequent. If the government is content, he can have no right to complain. If his claim had existed at the time, there was ample scope for its satisfaction, out of land not previously appropriated, or granted. The grant not being void, the land embraced within it was not vacant, or subject to location by the plaintiff. This view of the case will necessarily lead to an affirmance of the judgment.
It is proper further to observe, in reference to the concession, by the governor of the state, of eight leagues to each of the empressarios, under decree of the congress of the state, (No. 253,) of the 3d of February, 1834, introduced in evidence by the plaintiff, for the purpose of showing that the grantees had surrendered all claim to premium land, that neither the law, nor the concession, warrants the inference sought to be drawn from them. The law grants eight leagues to each of the. empresarios, “ as an indemnification for the expense they have incurred in virtue of the contract they entered into in 1828; provided, that at the expiration of the term, they shall not be able to fulfil their engagement.” This provision was made some time anterior to the date of the grant in question, and but a short time before the expiration of the term limited by the contract for the introduction of the families contracted for. It does not appear to have been intended as a substitute for the premium lands to which the empresarios might be entitled for families actually introduced,
The objection, that one of the grantees had removed from Texas to another of the states of Mexico, before the revolution,
Other objections to the title, which are answered by repeated decisions of the court, too familiar to require particular reference, need not be noticed. There is no error in the judgment, and it is affirmed.
Judgment affirmed.