50 Tex. 583 | Tex. | 1879
The patent issued to appellee by the State for the land for which he sues, is certainly primafacie evidence of title, and warranted the judgment in his
Appellant did not attempt to prove, or even pretend, that there is, or was ever in existence any direct or primary evidence of a previous grant or patent for the land to that issued to appellee; or, if the land was subject to location and patent when soughtto be acquired by appellee, that he had any equitable claim to or interest in it which appellee acquired by his patent; but he insists that the evidence adduced by him, together with that excluded by the court, was sufficient to warrant the jury in presuming that the State had granted the land to one Michael Devine, or to himself or his vendor, Guildeman, previous to its location and survey for appellee.
To maintain this proposition, appellant proved that the board of land commissioners of Victoria county, on the 26th of July, 1838, issued to Michael Devine, a single man, who emigrated to the Republic in the yéar 1836, a certificate for one-third of a league of land; that the land in controversy had been surveyed by virtue of this certificate by the district surveyor of Victoria land district on November 5,1839, and delineated upon the.map of said district; and that the certificate was afterwards returned, with the field-notes of said
The evidence also shows that said certificate is lost from or out of the file in said office, as it is not in a list of missing files made up in said office in 1875. Appellant having also shown that said certificate had not been recommended by the commissioners appointed under the act of January 29, 1860, to detect fraudulent land certificates, to the commissioner of the general land office as genuine and legal, in their report and file in said office, “ offered John J. Linn as a witness, by whom he proposed to prove that he knew Michael Devine, the party to whom the certificate for one-tliird of a league of land had been granted; that Devine was in 1836 a citizen of Victoria county, and that he had known him from that time until some time in 1842, when he was drowned, which was very shortly after the board acted on said certificate; that he (witness) was present when the travelling hoard held their meeting in Victoria, and heard the evidence given before them when said board were deliberating whether to recommend the certificate or not; and that after hearing the evidence said board did decide to recommend said certificate as valid and genuine.”
The proposed evidence, however, was objected to by appellee and excluded by the court; and its ruling, in our opinion, is unquestionably correct,—not only because there was no proper predicate for its introduction, but also because if proved it could have had no bearing upon the matter to be determined. The determination of the board of commissioners in favor of the genuineness of the certificate, however, clearly and conclusively shown, is wholly immaterial in view, of the fact that their report shows that they failed to recommend it as genuine and valid; for a patent could not be-legally issued on said certificate, admitting it to have been, genuine, unless it was “ returned as genuine and legal by the commissioners.” (Hart. Dig., arts. 1946, 1950; Paschal’s Dig., arts. 4218, 4222, 4223, 4245.) But it may be observed,.
A like defect in the proof before the board may have induced the board, after announcing the contrary conclusion proposed to be proved by Linn, to decline, on more mature consideration, reporting the certificate as genuine. It is sufficient, however, to say that the commissioner of the general land office had no authority to issue a patent upon it unless it had been reported as genuine, or, if not so reported, had been established as genuine and valid by suit. The evidence before the court, together with that proposed to be introduced, neither proves nor tends to prove either of these facts; and, beyond all question, a grant cannot be presumed when it would be in plain violation of law for it to have been made. (Yancey v. Norris, 27 Tex., 40; Sulphen v. Norris, 44 Tex., 204; Grimes v. Bastrop, 26 Tex., 310; Williams v. Davidson, 43 Tex., 1.)
But it is argued by appellant that although the presumption of a grant may not have been warranted prior to the organization of the Court of Claims, that court was authorized to inquire into the genuineness of the certificate issued to Devine, and if it found it to be genuine the commissioner should write across the face of it the word “ approved,” after which a patent might have been granted upon it. If, how
There is another difficulty in this branch of appellant’s case. He does not insist that the mere location, survey of land, and return of the certificate and field-notes to the general land office are sufficient to warrant the presumption of the grant, unless accompanied with a long-continued possession of it; but as he denies that he holds or claims title under the Devine certificate, and insists that the testimony offered by appellee to connect him with it was inadmissible, there is no evidence of possession of the land under this title to support the presumption that the survey made for Devine ever ma
And certainly if the facts do not warrant the presumption of a grant to Devine, if appellant does not claim under him he cannot ask the court to presume a grant to him or his vendor, neither of whom is shown to have had the land located or surveyed, or to have had any character of claim under which this could have been legally done. Certainly it is not necessary for this court to say that it can find no warrant, to presume a grant from the simple fact of the uninterrupted possession of the public domain by a mere squatter upon it. If grants are to be thus presumed, a patent, instead of being the best evidence of title to land, might be set aside as worthless by parol evidence of occupancy by a party without even color of title for such indefinite time as in the opinion of the jury should entitle him to the land.
If appellant did not claim the land under Devine, he shows no foundation for his plea of possession in good faith; for, unquestionably, something more is required to support this plea than a deed from a party having neither title nor possession of the land; and if appellant was not a possessor in good faith at the date of his entry under his deed, how and when did he subsequently become so ? By the record of the surveyor’s office he was charged with notice that no attempted appropriation of the land had been made except under the Devine certificate, under which he insists he does not hold. He must, then, have known that his improvements were being made upon land to which he had no valid claim. If, on the other hand, his title is connected with the Devine certifi
These considerations render it unnecessary for us to determine whether the copy of the deed from the assessor and collector of taxes to appellant’s vendor was admissible in evidence, or should on his objection to it have been excluded ; or whether the statute gives pay for improvements by parties holding possession under a claim to land which they believe to be valid, though the land may have been a part of the public domain until within less than one year before the filing of the suit for its recovery. Hor are we called upon in this case, as it is here presented, to inquire whether, although our statute may not give to the possessor in good faith of a part of the public domain, pay for lasting and permanent improvements, he may not be entitled to relief upon principles of equity.
To preclude appellee from a recovery for the use and occupation of the land, it was incumbent upon appellant to prove that appellee had failed to pay the State taxes which had accrued upon the land. (Paschal’s Dig., art. 3234.) There is nothing in the record from which we can infer that any such proof was adduced by him. Certainly the mere fact that appellant paid taxes upon the land does not tend to prove that taxes were not also paid by appellee; nor can we see from anything in the record that there were any taxes properly assessed against the laud which were payable when the case was tried in the District Court. Unless the land was located on or before the 1st day of January, 1877, of which there was no
There being no error shown in the transcript of which appellant has any just cause to complain, the judgment is affirmed.
Aeeirmed.