32 S.W. 585 | Tex. App. | 1895
Appellant sued in trespass to try title to recover of appellee 216 4-10 acres of land patented January 30, 1890, to A. Rust Cuyler, assignee of land scrip No. 589, issued by Thomas Toby to James House, on September 2, 1836. The location and survey were made May 27, 1874.
A portion of the certificate is as follows:
"No. 589. First. 640 acres of land.
"James House, of the City of New Orleans, and his legal representatives, are entitled to six hundred and forty acres of the public lands, to be located in the Republic of Texas, agreeably to the conditions contained in a power of attorney from the executive government of said Republic of Texas to Thomas Toby, dated on the 24th day of May, last past, and to instructions from his excellency, David G. Burnett, President of said Republic, to the said Thomas Toby, dated on the 25th day of May, last past, true copies of which documents are hereto attached for reference. * * *
"In testimony whereof, I, the said Thomas Toby, agent aforesaid, hereunto subscribe my name and affix my seal, at the City of New Orleans, on this 2d day of September, 1836.
(L.S.) "Thomas Toby."
Appellee answered by plea of not guilty, five years statute of limitation, and disclaimer as to all of the land sued for not in conflict with H. T.C.R.R. Co. section 30, block 14. The amount so in conflict proved to be 30 acres. That section was located October 20, 1875, and appellee proved title thereto. *227
The court found in favor of appellee, both upon the ground that appellant had shown no title, and appellee had shown title by limitation.
It will be observed that appellant claims under the older location, but his patent was not issued until after appellee's file.
In Todd v. Fisher,
Also, in Miller v. Brownson,
The court below found the patent under which appellant claims, to be void upon the ground that Thomas Toby had no power to issue the certificate by virtue of which the location was made. As we have seen from the authorities above quoted, the burden was upon appellee to establish this fact, if indeed it would constitute a defense at all. There was no evidence to prove a want of authority in Toby, and if the court's action can be sustained, it must be upon the theory that it judicially knew that fact. We think the court did judicially know that Toby, acting as the agent of the provisional government of the Republic of Texas, sold a large number of certificates of the kind in question; but we are of opinion that the court did not judicially, or otherwise, know that the power under which he acted was invalid.
On December 10, 1836, a short time after the issuance of this certificate, an act was passed by the first congress of the Republic, the first section of which authorized the President to sign and transmit to Toby for sale, land scrip to the amount of 500,000 acres, and in the second section of this act it is recited: "That the said Toby, with the proceeds arising from the sale of said scrip, be and is hereby authorized and required to fulfill all legal obligations into which he may have entered as agent of this government, on the faith of the authority given him by the President ad interim, for the selling of land scrip; and that he be authorized and required to pay all legal debts contracted on the faith of the same." This seems to be a clear legislative recognition of the validity of the authority recited by Toby in the certificate in question to have been given to him. 1 Sayles' Early Laws of Texas, art. 245.
In 1859 an act was passed directing that "all genuine headright certificates, or genuine Toby or Bryan scrip * * * that have not been presented to the Court of Claims within the time prescribed by law, shall be recognized and patented the same as though they had been presented and approved by the Commissioner of Claims. * * * but should any fraudulent certificate for land, by accident, inadvertence or design, be perfected into patent under this act, said patent shall be void, and no title shall vest." This act was carried into the Revised Statutes, and seems to be still in force. Rev. Stats., art. 3964.
We think the court should have found, after this great lapse of time, that Toby was in fact given the authority which he recited in the certificate that he had, and that his acts, if any defect in his powers originally existed, were subsequently ratified and approved by the legally constituted governments of the Republic and State.
We are also of opinion that the act last quoted had the effect to prevent the forfeitures which were attempted to be decreed for failure to comply with the act of 1840 (Sayles' Civil Statutes, art. 3907) and the act of 1856 (2 Sayles' Early Laws of Texas, art. 2673, par. 2). *229
We are also of opinion that the issuance of the patent to Cuyler dispensed with the necessity for the production of those claiming under him of any evidence of the genuineness of Toby's signature to the certificate, and of the patentee's right thereto.
In Mitchell v. Bass,
Also, in Deen v. Wills,
We think what we have said sufficiently disposes of the other objections found by the court below to appellant's title, but we have had more difficulty in deciding as to appellee's title under the five years' statute of limitation. The evidence is undisputed that appellee was in actual possession of a part of section 30, claiming all of it under a deed duly registered, and paying all taxes thereon, for more than five years before appellant took actual possession of any part of the survey claimed by him, and before the institution of this suit, but such possession did not extend to any part of the 30 acre conflict.
The authorities in this State upon this question are not in harmony. The case of Evitts v. Roth,
Following these decisions, we hold that appellee failed to show title by limitation to the 30 acres in conflict with appellant's older survey.
The judgment of the court below will be reversed and here rendered in favor of appellant for all of the land sued for by him.
Reversed and rendered.