49 Tex. 541 | Tex. | 1878
The plaintiff, John Summers, brought his action of trespass to try title for a league of land, claiming under a patent to Thomas J. Hall, issued in 1863. The defendants claim under a grant of the same league of land to Bluford Brooks, as a colonist of Austin’s colony, of date August 10, 1824. Shortly after receiving the grant, Brooks settled upon and cultivated said league; and on September 10,1825, whilst so in possession, and still a citizen of Coahuila and Texas, sold and conveyed it by valid deed of conveyance to John Spear; and said John Spear, on the said • 10th day of September, 1825, settled upon and cultivated said land for several years, in compliance with the laws then in force and the terms of grants of land to claimants. The defendants claim under a regular chain of title from John Spear, and possession was continuous in the defendants, and those under whom they claim, down to the institution of this suit.
Brooks abandoned the country in 1825. On the 15th of December, 1830, the ayuntamiento of Austin’s colony “ took into consideration the subject of an official letter of the empresario, Austin, and examined the list of titles made by the said empresario in his first colony, for the purpose of determining who had complied with the conditions of their grants, and whose titles ought to be, and are, confirmed; and also who had not complied, either by abandoning the country or failing to cultivate and settle the lands in conformity with the laws.” (See statement of case in Holliman v. Peebles, 1 Tex., 675, where the identical proceedings of the ayuntamiento which are relied on in this case were considered as to a different grant.)
On February 5,1850, the Legislature passed an act entitled “An act to prevent locations in the colonies of Austin, De Witt, and DeLeon,” as follows: “That no certificate of land, land warrant, or evidence of land claim, of any kind whatever, shall hereafter be located upon any land heretofore titled or surveyed within the limits of the colonies of Austin, De Witt, and De Leon; and the Commissioner of the General Land Office is hereby pirohibited from hereafter issuing a pat
The charge instructed the jury, in substance, that if Brooks sold the land before abandonment of the country, and his vendees entered into possession immediately, and have held and cultivated the land ever since, to find for defendants.
Accordingly, there were a verdict and judgment for defendants, from which Summers has appealed.
On the part-of appellant, it is claimed that the legal effect of the proceedings of the ayuntamiento was to annul the Bluford Brooks grant as completely as though it had never had an existence, and that therefore it was thereafter vacant land, and not “ titled ” or “ surveyed ” land, within the meaning'of the act of 1850.
The grant to Brooks was under the colonization law of 1823, under which—having received the grant, and having occupied and cultivated the land, and not having previously abandoned the country—he had an undoubted power of alienation. (Portis v. Hill, 14 Tex., 71; Emmons v. Oldham, 12 Tex., 27; Thomas v. Moore, 46 Tex., 433.)
After this sale to Spear, who in good faith at once occupied and cultivated the land, the subsequent abandonment of the country by Brooks was no sufficient ground for annulling the grant. (Johnson v. Smith, 21 Tex., 722.)
If Brooks had abandoned the country without selling, there
It seems questionable, however, whether the proceedings of the ayuntamiento in such cases were designed to have the conclusive effect of a judgment, unless followed by some action of the commissioner, empresario, or political authority; and certainly, with the lights before us, we are not prepared to hold that the proceedings which we have recited are conclusive as against Spear, whose rights attached prior to the abandonment. (Jenkins v. Chambers, 9 Tex., 167; Johnston v. Smith, 21 Tex., 722; Jones v. Garza, 11 Tex., 206.)
We have not, however, found it necessary to pass definitely on this question. The condition of the business of this court forbids all unnecessary delay in the examination of questions not essential to the disposition of a case. In our opinion, whatever may have been the effect of the proceedings of the ayuntamiento, it did not obliterate the fact that the Bluford Brooks league was, at the time of the passage of the act of 1830, land “ heretofore titled or surveyed,” within the meaning of that act. Literally, it was land “ heretofore titled ” and “ surveyed ”; and unless it be made to appear that it was not the intention of the law to embrace such cases, the plain and ordinary meaning of the words used will control. The object of this statute, as well as that of 1856, was undoubtedly to quiet land titles in the colonies named; and it is reasonable to assume that it embraced those who, at the time these statutes were enacted, had for many years continued undisturbed to cultivate, occupy, and claim land under a title at one time unquestionably valid, and who, if that title was in truth annulled, had themselves been guilty of no fault, but suffered because of the dereliction of another. As actual settlers and occupants, the defendants belonged to a class always
The act of 1850 is nearly identical with a statute enacted by Congress, and construed by the courts of the United States in several cases. The Supreme Court, in construing that statute, say: “ The statute is general, including by name all grants, not distinguishing between void and valid; and the plainest rules of propriety and justice require that the courts should not introduce an exception, the Legislature having made none.” (McArthur’s Heirs v. Dun’s Heirs, 7 How., 271.) The court applied the statute to a void grant, which, however, still constituted an equitable claim against the government. Applying a similar rule, we are of opinion that the effect of the acts of 1850 and 1856 was to prohibit interference by location with those claiming the Bluford Brooks league under Spear, and to render void the patent issued thereon.
The judgment is affirmed.
Affirmed.