16 Tex. 433 | Tex. | 1856
The first ground assumed by appellants, is, that there was error in so much of the charge as declares, in effect, that the title offered by plaintiff was prima fae
The appellees might justly insist that this ground should not be noticed, as it was not insisted on below, or sufficiently specified in the assignments of error; but, as it has been relied upon by appellants, I will consider briefly the points and facts presented in the suggestion.
The substance of the objection is, that Vehlein’s contract being made in December, 1826, expired in December, 1832, consequently prior to the grant to the plaintiff Simpson in 1834—1835. But if this were admitted, it would not per se affect the title. The grantee may have attached himself to the colony before the termination of the contract, and whether the title were issued prior or subsequent to that time is of no consequence. The title cannot be issued until the appointment of a Commissioner for that purpose, and this appointment may be either before or after the end of the contract, at the pleasure of the Government. But it is said that no proof was made of the time of the introduction of Simpson ; that, from the evidence, this may be presumed to have been in 1834, and that if there were any extension of the contract of Vehlein, it
It is not necessary to reiterate, in this Opinion, the principle that the grant is, to say the least, prima facie evidence of the admission of the colonist at the time prescribed by law. The presumption is of a nature so conclusive, that Courts would, after the lapse of twenty years, be very unwilling to admit, if they did not absolutely exclude, all evidence to the contrary. (Byrne v. Fagan, supra) But, in point of fact, the time of Simpson’s introduction, whether before December, 1832, or in 1834, is perfectly immaterial. The contract of Vehlein was extended for three years by the Decree No. 192. (L. C. & T. p. 195.) This was a fact in the public history of the country, published among its laws, and which the Court was bound to notice without averment or proof.
But an inquiry is made into the authority of Nixon to act as Commissioner, and also as to the rule or law of his action. It is said that (Decree No. 16) the Colonization Law of the 24th March, 1825, was repealed by Decree 190, and this latter Decree as well as Decrees 62 and 128, were repealed by decree No. 272, as well as all instructions for commissioners, which were in conflict with the latter Decree, and, in effect, that if the Commissioner was acting under Art. 32, of Decree No. 272, he was not empowered to issue titles to any but occupants of lands, and for the lands they occupied, and the proof was that Simpson resided in Nacogdoches, and was not an occupant of the land. Without attempting to construe the provisions of Article 32, of Decree No. 272, (that not being necessary in this case,) it is' sufficient to say, that Nixon was not acting under that article, but as a Commissioner to issue titles to colonists in contracts made under the Colonization Law of the 24th March, 1825. An inspection of the laws in relation to the public lands will show, that amidst all their repeals and modifications, no attempt at change was made or intended, in relation to contracts ratified under the law of 1825.
The main question, and the only one of difficulty in the cause, is as to the identification of the land ; that is, whether its locus or boundaries can be shown consistent with (so far as the law requires such consistency,) the calls of the grant. The charge of the Court to the jury is a copious and lucid exposition of the law on this subject; and that portion of the charge especially germain to the facts, is to the effect, that if the jury believed from the evidence, that the first corner of the survey called for in the grant was established on the river by the surveyor, or that the lower corner was established on the river, which were natural objects, and that they or either them have been identified by proof, and that the lines and other corners cannot be established, the plaintiff would be entitled, under the grant, to a league of land, running the line with the river from the corner so established, such a distance as would include a league by lines running back from those points parallel to each other for quantity ; or if both corners on the river were established, then the grant is valid for the metes and bounds, according to the calls, if they can be run consistently with the course and distance ; if not. the grant would be valid for a league, by running back parallel lines from said corners
The effect of this finding is, that in the judgment of the jury the survey had been commenced by Hirams ; that he had established the lower corner ; that the lines and other corners called for by the grant could not be traced or established, and that the plaintiff was entitled to a league surveyed in a legal form from the lower corner, viz : as surveyed by J. R. Johnson. Mr. Hirams, upon whose survey the grant issued, was prevented by Indians from concluding his survey on the ground ; and though, from his own and other testimony, there is a presumption that he also established the upper corner, yet the jury having in effect ignored all of his survey-—at least, not found any of it—but the lower corner and lower line, the ques tion as to the establishment or identification of the upper corner becomes immaterial. The survey of Johnson was as far as possible consistent with the calls of the grant, that is, commencing at the lower corner, it ran the entire distance of the lower line, then running twenty five hundred/varas for the cross line—thus making the cross line, or front, equal to about one fourth of the depth—the survey was concluded by running the upper line parallel with the lower line, to the river.
The question is, admitting the lower corner to have been sufficiently identified, is the plaintiff entitled to recover, when the survey was not made in fact, but only by protraction and calculation. If a rigorous construction were given to the provisions of the law relative to the duties of Surveyors, in running off lands, and of the Commissioner, in obliging colonists to set land marks upon their lands, with fixed and permanent boundaries, (Arts. 6 & 7 of Instructions to Commissioners, p. 71 Laws of C. & T.) a grantee could not claim, unless under a survey actually made, and with permanent corners and boundaries. But such construction would be fraught with incon
The question, upon the evidence is, whether such corner was.
But it is said, also, that there is a mistake as to the direction and distance of the ash tree from the corner; that, by the field notes of Hirams, it is described as S. 15 E., 11 varas distant, whereas Mr. Johnson found it N. 62 W. 16 varas, or, as Mr. Johnson says, nearly reversive of the calls. Had it
It appears, also, from the evidence, that the Simpson grant was well known in the neighborhood ; that it was delineated on the first county map, though not on those made afterwards. For what reason this was not done is not stated. It may have conflicted with other old surveys. But, had there been no evidence from witnesses who had long .resided in the country, as to the notoriety of the claim, the very fact that it had not been located upon until 1847, would raise a strong presumption
The only remaining question is as to the plea of limitation of three years, set up by the defendants. To sustain this plea, the defendants must prove all the facts prescribed by the statute, as constituting the bar under the 15th Section. The possession must be taken under title or color of title ; there must be a consecutive chain of transfer in writing from the sovereignty of the soil down to him in possession ; and if the claim be under a headright, there must be a chain of transfer. As charged by the Court, there would be no necessity for a transfer, where the party claims by inheritance.
The defendants claim under three surveys on headrights— one for Jesse B. Irving, another for Vincent Harrison, and a third for Mary Harrison. The first was not transferred in writing until May, 1853 ; the second, until May, 1854; nor the third until May, 1854.
Of the two latter, there is said to have been previous verbal transfers. But this does not satisfy the statute. It recognises no link in the chain of title required by this Section, unless constituted by transfer in writing, and no cause of action accrues to the plaintiff, under this Section, xxntil possession be taken under the circumstances specified in the Section. A possession taken without title from the government, cannot be attached to a title subsequently acquired. The possession held by several persons successively, in privity with each ether, will be considered one possession so as to form the statutory bar ; but, through the whole period, the possession must be held in conformity with the requirements of law. It must be taken under title and so held under the same title with
Judgment affirmed.