66 Tex. 363 | Tex. | 1886
The plaintiff in error instituted this suit in the district court of Archer county to recover a number of tracts of land in that county, alleged to be in possession of defendant under a title fraudulently obtained from the state under chapter 88 of the acts of the legislature of 1883, and in violation or evasion of section six of that chapter. The defendant excepted to the venue, contending that the suit could only be instituted in the district court of Travis county. This exception was sustained and the suit was dismissed. Chapter 88 does not prescribe the county in which suits for land purchased under its authority, but in fraud of its terms, shall be instituted or prosecuted. Hnder the law prescribing the venue for suits generally, this action was properly brought in Archer county. R. S., 1198 sub-sec. 13. Chapter 104 of the laws of 1883 has reference only to suits for land fraudulently purchased under the acts of 1879 and 1881, and section six of that chapter is confined in terms to the suits authorized in that act. In the absence of any special authority or direction, the suit could only be filed in the county named in the general laws. The exception to the venue was improperly sustained.
The defendant also excepted to the. petition on the ground that it appeared upon the face of it that the cause of action was barred, and this exception was sustained. The act under which the suit was brought provides that “every attempt to evade the limitation of this act as to the amount or class of land one may purchase, by any device whatever, shall be deemed fraudulent, and the fraud may be shown and the purchase cancelled by the state within one year from the date of sale.” The petition avers that the defendant, though prohibited by the act from purchasing more than one section in any one county, nevertheless, did purchase the several sections described, in the names of various persons, and it appears in the pleading that the sales to those various persons were all made more than twelve months before the commence
The language in which the limitation is expressed is peculiar, and what the intention of the legislature was is an inquiry not free from difficulty. Independent of this provision the title of the purchaser would probably be void, as obtained without authority and in violation of express law, and no time would bar the suit of the state to cancel the sales. By this provision the purchase is made merely fraudulent, and the right of the state to show the fraud and cancel the sales is limited to one year. As the fraud would not likely appear upon the face of the proceedings, there was obvious policy in confining to the state alone the right to question the sales and in limiting the time in which the state could show the fraud and cancel the title.
nevertheless, if the limitation had been expressed in the phrases common to statutes of limitation, the provision would, without difficulty, imply the exception universally engrafted upon the statutes of limitation proper, and the time would not be counted from the actual accrual of the cause of action, but, when the cause of action is concealed by fraud, the prescribed period would commence from the discovery of the grounds of action, or from the date at or before which, by the use of the diligence customary in business matters, the right ought to have been known. But in this act, the phrases must be interpreted to ascertain whether any limitation upon the state’s right to sue has been imposed. The language is that the fraud may be shown and the sales cancelled.
The suits authorized are required to be filed within twelve months from the date of sale. If any person or corporation purchases more land, or land of a quality other than provided in the act, the fraud is complete when the purchase is made, and the state’s right of action accrues at the date of sale. Ho. fraud can be committed under this law, which does not confer upon the state a right to sue coeval with the sale. When, therefore, it is said that the suit shall be brought within one year from the date of sale, no more and no less, is meant than if the provision were for suit within one year from the date of the accrual of the cause of action.
The peculiar phraseology of the clause is susceptible of the same interpretation as if the limitation had been expressed in the language generally used in statutes of limitation. The language that the fraud may be shown and the purchases cancelled by the state within one year from the date of sale, may have been used to convey the same idea as if the legislature had said that purchases in fraud of the act maybe avoided by suit by the state to be commenced within twelve months from the date of the accrual of the cause of action.
As already stated, if the latter expression had been used, there would be no difficulty, for the qualification universally implied in laws prescribing a limitation of actions would be implied as a part of this act. Whether in departing from the established forms of expression it was
We conclude, that the court below also erred in sustaining the ex-exception to the petition based on the ground that the cause of action appeared on the face of the pleading to be barred. If this holding is not in consonance with the policy conceived in the enactment of chapter 88, of the laws of 1883, that policy can be more definitely indicated in future legislation. A contrary holding would place the majority, if not all the cases, arising under that act, beyond the power of the legislature, if its purpose by such holding would be misinterpreted. The judgment is reversed, and the cause remanded.
Reversed and Remanded.
[Opinion delivered June 4, 1886.]