Smith v. Power
23 Tex. 29
Tex.
1859
Check Treatment
Wheeler, C. J.

Nо question is more authoritatively settled by the repeated decisions of this court, than that the consent of the federal executivе of Mexico was essential to the validity of a grant of lands, of the character of the present, within the border and coast leаgues. (Edwards v. Davis, 3 Texas Rep. 321; 10 Id. .316; Republic v. Thorn, 3 Id. 499; 5 Id. 410; 9 Id. 410, 556.) In the case of Smith v. Power, the parties to this appeal, (14 Texas Rep. 146,) it was held, that the grant here in question, under which the dеfendant claims, could not be distinguished from those which had been passed upon in former cases; and, upon the authority of those cаses, it was decided, that the grant, wanting such consent, was void. That question, therefore, cannot be considered, as now, an open ‍‌‌‌‌‌​‌‌‌​​​​‌​‌​‌‌‌‌​​​‌​​​​​​​‌‌‌‌‌​‌​‌‌‌​‌​​​‍one. A series of decisions, continued almost from the organization of this court, down to the present time, thus settling the construction of the lоcal law, upon which the titles to real property, in the oldest and most densely peopled portions of the state so largеly depend, must be regarded as emphatically the law of the state.

The decisions of this court upon the titles to lands, have becоme’ the rule of property in this state; and as such they are binding upon this, and every other court, in which those titles may be drawn in litigation. They would be so regarded in all courts; and certainly not less so in this than in the Federal Courts. *33Upon this subject the Supreme Court of the United States have uniformly held very decided and emphatic language. (See McKeen v. Delaney, 5 Cranch, 22, 32; 5 Wheat. 293; Jackson v. Chew, 12 Wheat. 153; Davis v. Mason, 1 Pet. 505, 570, 571; 2 Id. 627, 656; 5 Id. 155, 398, 401; 6 Id. 283; 2 How. 125; 3 Id. 441; 11 Id. 668; 18 Id. 502.) They hold the local law of the State the law of that court, in deciding upon the rights of the parties to real property within the state; and upon the ground that the security of titles and the peace of society demand that the rules of property should be permanent and uniform. They follow the decisions of the state cоurts, upon the same principle ‍‌‌‌‌‌​‌‌‌​​​​‌​‌​‌‌‌‌​​​‌​​​​​​​‌‌‌‌‌​‌​‌‌‌​‌​​​‍that they adhere to their own decisions, because they settle the law applicable to the case, and because the best interests of society, no less than the dictates of reason and natural justice require uniformity of dеcision. The reasons are not less cogent why this court should preserve uniformity in its own decisions, on which the titles to the lands within the' state depend.

The only question in the case which remains open to examination is, upon the sufficiency of the defence of the statute оf limitations. The defendant pleaded the limitations of three and ten years. To render a possession of three years a bar to аn action by the true owner, the defendant in possession must have held under title, or color of title, as defined in the fifteenth section of thе statute. (Hart. Dig., Art. 2391.) To constitute such title, or color of title, there must be a “ chain of transfer from or under the sovereignty of the soil.” This necеssarily presupposes a grant from the government, as the basis of such transfer. And the grant must be effectual to convey to the grantee whatever right or title the government had in the land, at the time of making the grant. It need not necessarily carry with it the paramount title; but it must be title, as against the government, valid in itself, wh§n tested by itself, and not tried by the title of others. It must have intrinsic validity, as between the parties to it; though it may be relatively void, as respects the rights of third persons. If it be absolutely void, a nullity, *34it cannot be said to be a grant, or the basis of a transfer of the titlе from the government. The term “grant” imports that something passes thereby from the grantor to the grantee. But if it is absolutely void, of course, nothing passes by it; it cannot constitute title, or color of title, within the provision of this section of the statute.

The consent of the federal executive of Mexico was a condition precedent to the making of the grant in this case. ‍‌‌‌‌‌​‌‌‌​​​​‌​‌​‌‌‌‌​​​‌​​​​​​​‌‌‌‌‌​‌​‌‌‌​‌​​​‍Wanting that consent, it was made without the authority of law, and was consequently void. (Smith v. Power, 14 Texas Rep. 146.) The present cannot be distinguished from the case of Marsh v. Weir, decided at the last term of this court, upon the construction of this provision of the statute. (21 Texas Rep. 97.) There the grant was valid in its inception, but was annulled by matter subsequent, and we held, that it did not constitute title, or color of title, within the meaning of the statute. Here the grant was void in its inception. Nothing passed by it; and we are of opinion, that it cannot constitute the basis, or a link in a chain, of transfer of title “from or under the sovereignty of the soil;” and consequently, that it is not title, or color of title, within the meaning of the law.

It remains to inquire whether the defendant is protected in his possession by the limitаtion of ten years. His possession commenced before the passage of the act of limitations, ‍‌‌‌‌‌​‌‌‌​​​​‌​‌​‌‌‌‌​​​‌​​​​​​​‌‌‌‌‌​‌​‌‌‌​‌​​​‍and a sufficient length of time tо bar the plaintiff’s action, by the rule in Gautier v. Franklin, which has been followed in subsequent decisions, (Power v. Smith, 14 Texas Rep. 4,) although ten years from the passagе of the statute had not elapsed at the time of bringing the suit. But the plaintiff’s right was not acquired, so far as appears by the record, until the 8th оf April, 1841, less than ten years before the commencement of the suit. On general principles, and by the express provision of the statutе,-its limitation does not run against the state. And it is well settled, in cases like the present, that the statute does not commence to run against a party claiming under the government, until the right accrues to the claimant. (Lindsey v. Miller, 6 *35Peters’ Rep. 666, 673; Chiles v. Calk, 4 Bibb, 554.) It is clear, therefore, that the defence of the Stаtute of Limitations cannot avail the defendant, as presented by the record. There is little doubt that the plaintiff’s location and survey must have been made some time before the date of his patent, which is the 8th of April, 1841. But the date of the location and survey is not in evidenсe; and it devolved on the defendant to prove the date, if material to his defence. The burden of proof is on the party who rеlies on the defence of limitation.

In applying to this case the principle that the Statute of Limitations does not run against the govеrnment, we do not mean to be understood as expressing any opinion on the ‍‌‌‌‌‌​‌‌‌​​​​‌​‌​‌‌‌‌​​​‌​​​​​​​‌‌‌‌‌​‌​‌‌‌​‌​​​‍question, as to what lapse of time will authorize the presumption of a grant, when there is no person claiming adversely to the party in possession. (Herndon v. Casiano, 7 Texas Rep. 322; Paul v. Perez, 7 Texas Rep. 338.) In this case, less than threе years had elapsed when the adverse claim of the plaintiff was acquired; and it is clear, that this was not time sufficient to authorize such presumption.

Nor do we mean to express an opinion upon the question, whether ten years possession begun or continued after the passage of the act of limitations, will give title as against all persons but the government, precluding the right of a claimant by location made within the ten years. In this case, ten years had not elapsed from the passage of the statute, when the suit was brought. There was not a ten years’ possession under the statute.

We are of opinion, that the judgment be. reversed, and the cause remanded for further proceedings.

Reversed and remanded.