51 Tex. 94 | Tex. | 1879
On February 1, 1838, the board of land commissioners for Brazoria county, Texas, issued to George Brown,as a colonist of Austin’s colony,head-right certificate, of the first class, number 238, for one league and labor of land. On February 27, 1838, George Brown indorsed on the-certificate an assignment thereof, and also of his right, title, and interest to the land mentioned therein, to Josiah H. Bell. This certificate was neither recommended by the commissioners appointed under the act of the Bepublic of Texas to detect fraudulent land certificates, nor was suit brought to establish the same by the 1st of July, 1847, as permitted by section 2 of article 11 of the State Constitution of 1845.
Subsequently, by special act of the Legislature, passed September 1, 1856, the commissioner of the general land office was ordered to issue to the heirs of George Brown a certificate for one league and labor of land, in lieu of his headright certificate number 238.
The certificate issued by virtue of this special act of the Legislature, was subsequently located on the land in contro
This suit was brought by the plaintiffs, as the heirs and representatives of Josiah H. Bell, to whom the original certificate number 238 had been assigned, against the heirs of George Brown, to prove up this assignment and for decree of title to the land thus patented. The defendants resisted the claim of plaintiff; set up title to the land in themselves by virtue of the certificate issued under the special act of the Legislature and the patent thereon.
Judgment below was rendered against the plaintiffs, from which they prosecuted this writ of error.
Whether the conveyance to Josiah H. Bell by George Brown, of his unrecommended certificate number 238, be considered as a transfer of a mere chattel interest, or an equitable assignment of the land to be located and surveyed by the certificate, as the same was neither recommended nor established by suit, as required by law, both this certificate and any location and survey made by virtue thereof were, as expressly declared by the Constitution, absolutely null and void. (Const. 1845, art. 11, sec. 2; Miller v. Brownson, 50 Tex., 583.)
Being thus null and void, neither the plaintiffs, as-the heirs and representatives of Josiah H. Bell, the assignee of George Brown, nor the defendants, as his heirs, had any legal right thereunder, against the government, which either a court of-law or equity could recognize and enforce. This being the-case, the subsequent special act of the Legislature, by which-the certificate was issued to the heirs of George Brown, “ was-, but an act of sovereign grace and bounty on the part of the* political authority.” (Causici v. La Coste, 20 Tex., 286.)
Being a mere gratuity, the State had the right to designate* to whom the same should be given, and this having beem done, it cannot be changed by the judicial- department. (Eastland v. Lester, 15 Tex., 102.)
Judgment affirmed:.
