|
|
||
|
Bastrop County, TX |
||
|
|
||
|
|
SUPREME COURT RECORDS PAGE
3
File
contributed by Lisa Lach and proofed/formated by Dena Stripling Supreme Court of Texas. A. C. HORTON v. HENRY BROWN December Term, 1847. *1 Appeal from BASTROP County. FN1. This cause was tried before the Hon. R. T.
WHEELER, associate justice of the supreme court, and Thomas J. JENNINGS,
Esq., special associate justice, so constituted, in consequence of Chief
Justice HEMPHILLl and Associate Justice LIPSCOMB having previously
been of counsel for the parties. The doctrines in the case of The Heirs of
HOLLIMAN v. PEEBLES, decided by this court at the present term, recognized and
adopted as the law of this case. Lands granted to an individual as a colonist who
did not establish his domicile in the country, or who, after having
been domiciled, abandoned the country, were forfeited, and immediately
reverted to the government. To entitle another to a regrant
of land thus forfeited, no inquest of office or other judicial proceeding or sentence was
necessary under the land laws of Coahuila and Texas as interpreted by the
rules prescribed by the civil law of Mexico and Spain. In the year 1839, the appellant commenced a suit
in the district court of BASTROP county against the appellee and the
commissioner of the general land office by filing a petition, the substantial
allegations of which are in the following words: "In the month of April, 1835, your
petitioner arrived in Texas and became a colonist and a married man, entitled to one
league and labor of land as his headright, and on the 18th day of January, 1838,
your petitioner applied for and received from the board of land
commissioners of Matagorda county, in said republic, his certificate for said league
and labor, in conformity with law, etc. That afterwards, to wit, in February,
1838, your petitioner located a part of his headright secured by said
certificate, to wit, one league thereof, on a certain tract or parcel of
land, situated and being in said county of BASTROP, and known and
distinguished on the map of said county as league number one (1), fronting on the
San Antonio road, 5,000 varas, and on the east margin of the Rio Guadaloupe;
that said location was duly entered in the office of the county
surveyor of said county of BASTROP, in the name of your petitioner, and the field
notes thereof recorded in his books; that your petitioner paid all government
dues on said land, and caused the receipt of said payment to be
forwarded, with the field notes of the survey of said league, to the commissioner
of the general land office, by said surveyor. Your petitioner would further
represent that the commissioner of the general land office returned
said field notes to said county surveyor, and refused to issue a patent
to your petitioner, because it appears that a deed of the following
description, to wit, a deed executed by Talbot CHAMBERS, as commissioner of Milam's
colony, in the spring of the year 1835, to one Henry BROWN for league number
(1) one, fronting on the San Antonio road and Rio Guadaloupe
(being the same league located by your petitioner as aforesaid), is on file in the
general land office, and that no judicial decision by a court of competent
jurisdiction had declared said deed void and null. Your petitioner further showeth that the said deed ought not and does not, in law and equity, bar your
petitioner's just claim to said league, and that the said BROWN ought not
to hold said land by virtue of said deed thereof, in preference to your
petitioner's best right: For, that the said Henry BROWN, the grantee of said
land, was not at the time of the execution of said deed, or at any time
previous or subsequent thereto, a colonist or a citizen of the state of Coahuila
and Texas; that the said BROWN did not then, or at any other time, nor
never has resided in Texas; but your petitioner avers that the said BROWN
came into Texas at the time aforesaid, to wit, the spring of the year 1835,
and departed therefrom in a few days, to wit, fifteen days from the time of
his said coming, with the intention of not returning, and that in fact
your petitioner says the said BROWN never has returned, but is now a citizen
of the United States of North America, and owes and pays allegiance to the
government thereof, and is and always has been, in fact, in reference to the
government of Mexico, the state of Coahuila and Texas and the republic of
Texas, an alien. And your petitioner by leave of the court first had and
obtained, and by way of amendment alleges that the said Henry BROWN, at
the time the aforesaid deed or grant was made to him by Talbot CHAMBERS,
commissioner as aforesaid, falsely and fraudulently represented, and caused
himself to be falsely and fraudulently represented to said commissioner as
possessing the necessary qualifications and requisites to be admitted as
a colonist, and to be entitled as a colonist and head of a family to a
league of land. Whereas, your petitioner alleges that the said
representations were wholly untrue and fraudulent, and that the said Henry BROWN had
neither wife, child, servant or any other person under his charge to
constitute a family at the time of the aforesaid grant in the spring of 1835, nor
at any time from the date of said grant to this present time.
"Wherefore" (after a prayer for proper steps to bring the commissioner and BROWN into
court to answer, etc., the petitioner proceeds) "your petitioner
further prays that your honor will grant the writ of mandamus directed to the
commissioner of the general land office, requiring and commanding him to make out
and issue to your petitioner a patent to said league of land, and
for general relief," etc. *2 The record then recites a written
acknowledgment of the service of "the petition and writ in this case," signed by
John P. BORDEN, commissioner of the general land office, but contains no answer
on his part. At the spring term, 1840, an answer was filed on the part of
the defendant, BROWN, in these words: "The defendant, by his curator, says that
the facts set forth in the plaintiff's petition are not sufficient in law
to have and maintain his aforesaid suit. And this he is ready to verify.
Wherefore he prays judgment, etc. (Signed) J. W. BUNTON,
Curator pro Def't." The action and judgment of the district court
are exhibited by the record, in the following entry: "This day came the plaintiff, A. C. HORTON,
by his attorney, and the defendant by his curator, BUNTON, and said
curator admits the facts alleged in the said plaintiff's petition, but demurs to
the same as insufficient in law; whereupon it was considered by the court
that the demurrer be sustained, and judgment be entered for the
defendant. But the court considering the points raised in the case as
novel and difficult, it was ordered that they be reserved for the decision
of the supreme court. Whereupon it is considered by the court that
judgment be rendered in favor of defendant, and the proceedings had in this
case be certified to the supreme court as presenting questions of novelty
and doubt." Lands granted to an individual as a colonist,
who did not establish his domicile in the country, or who, after having
been domiciled, abandoned the country, were forfeited, and immediately
reverted to the government. Where lands were granted to an individual as a
colonist, and were forfeited to the government by his failure to establish
his domicile in the country, or by his abandonment thereof, no inquest of
office or judicial proceeding or sentence was necessary, under the land laws
of Coahuila and Texas, as interpreted by the civil law of Mexico and
Spain, to entitle another to a regrant of land thus forfeited. A. applied for a writ of mandamus against a
commissioner to compel him to issue patents for certain lands which he had
located, and he made B. a party to his petition, who, it was alleged, had
located the lands, but had never acquired a domicile in Texas. B. demurred, and
it was held that, as B. had never acquired a domicile in the state, his
title under the colonization law of the state of Coahuila and Texas ceased, and
reverted immediately to the state, and that no inquest of office or other
judicial proceeding was necessary to entitle another to a regrant of the same lands under the laws of the same state. GILLESPIE, for appellant. *3 The matters presented by the record in this
case are few. It shows that in the year 1835, BROWN procured a
deed to a league of land, the now subject of controversy, from the
commissioner of Milam's colony. In the year 1838, HORTON entered his headright
certificate on the same land, took all the preliminary steps to obtaining a
patent, and had the field notes returned to the general land office for
that purpose. The commissioner returned them to the surveyor's office, with the
reason for his refusing a patent to HORTON for the land described by them,
"that it was upon and included the land claimed by said BROWN in
Milam's colony." HORTON then filed his petition or bill in the
district court where the lands lay, alleging that the deed to BROWN was
procured by false and fraudulent representations; that in truth and in fact he,
said BROWN, was never entitled to land as a colonist; that he was
merely a visitor to the country and left and abandoned the same a few days after
he procured the deed to the land. HORTON insists in his said bill that the
deed to BROWN was and is a nullity; that nothing passed to him by said
deed, and consequently the land claimed by it remained vacant and was then
liable to his location. The commissioner general is made a party and the
prayer is, that the title of BROWN be set aside and a patent issued to
him, HORTON. BROWN appeared by his counsel, and filed a
general demurrer, intending thereby to admit all the facts alleged by HORTON
as true, which was so considered by the court, as appears by the
record. The demurrer was sustained, from which HORTON
appealed. The appellant insists that the court erred in
sustaining the demurrer. That the title set up by BROWN, having been
obtained by fraud, was void and null; that he took nothing under a deed procured
by his own fraudulent devices, and consequently the appellant, who had
a claim upon the government, had a right to locate any lands that
had not been otherwise lawfully appropriated. It is the policy of the
law to make it the interest of all persons to investigate and suppress
frauds. It is their interest to take care of the public good. By all law writers, fraud has ever been held so
odious as to vitiate and nullify everything that it touches or comes in
contact with. It will vitiate and destroy the most solemn proceedings of
courts of record. A patent obtained by fraud is utterly void. I would particularly press on the consideration
of the court, the reasoning of the great COKE in the case referred to. Human
nature has not changed since his day. *4 The officer of the government for the
distribution of public lands was intrusted with particular and special duties. If he was imposed on
or deceived in the issuing of a title, in fraud of
the law, it would be contrary to law, and of course null and void, as
much as if a forged deed was attempted to be forced on the country; for
whatever is done in fraud of the law is done in violation thereof. There is no difference as to the effect on the
public; there is none as to the morality of the act. And if we apply to the
principle settled by the supreme court of the United States, no right
through BROWN's own fraud could vest in him, "those who came in under a
void grant can acquire nothing." Same doctrine in Legate's case. Same doctrine held in Louisiana reports, that
fraudulent contracts are void ab initio. This principle seems to be universal. In the New Pandect of Roman Civil Law this
principle is laid down: "That if a contract is procured and
made by fraudulent devices, it is absolutely null and void. And particularly when
the contract is with the prince." See also Puffendorf,
281 and notes. Story says fraud is more odious than force.
Story Eq. sec. 186. According to this BROWN stood in no better attitude before
the court than a robber. In 2 Vesey, Jr., this principle is laid down:
"That a void deed having passed nothing, a reconveyance
is unnecessary, page 294;" When public utility is concerned, fraud vitiates
any transaction which in its effect would tend to public mischief. In 1 White, 304-6, it is stated that a sentence
against law and justice is absolutely null and void, and there is no
necessity of any other proceeding to set it aside. Id. 244, Fraud on Governments. It was the policy and object of the Mexican
government at the time of the pretended emanation of BROWN's title, to settle
the country with actual cultivators of the soil; as is most conclusive
from a mere glance over the numerous ordinances, decrees, etc., passed by
her legislature on the subject of settling her wilderness territory. Such has been the constant object of the Spanish
colonial governments since the establishment of the laws of the Indies. A
like system with the same object in view to that adopted by Mexico, and subsequently
by the states of Coahuila and Texas, was long in force in the now states of Louisiana
and Florida. And as many cases arising therefrom have subsequently been adjudicated in
the state and United States courts, we may well look to their determination of like
questions for some light on this subject. *5 As to the mode in Louisiana, see WHITE v.
WELLS; FLETUS v. The Mayor of New Orleans; 2 White. The law expressly stipulates the terms and
conditions upon which the colonists can acquire a legal title. They must
conform to the law; the terms and conditions are precedent and must be
complied with. Kingley's case and the Heirs of Mills; White; 1 La. Cond. The mass of Florida cases can be ranged under
three classes. Absolute grants in consideration of services
already performed or passed, as in PERCHMAN's case; 2 White; 2 Pet. Dig. Next, grants for important services and
considerations already passed with future stipulations and promises by the grantee,
as in the ARREDONDO case. Lastly, the great mass were, like those in
Coahuila and Texas, concessions or incipient grants permitting a present
possession, and securing a future absolute or fee simple right, on certain
conditions prefixed to the grant, always having in view the settlement and
improvement of the country; which considerations were as essential to be performed
as the payment of money to the country. Although in SETON's case, 10 Pet. 309, and in
SYBOLD's case, their claims were judged valid on the doctrine of cy pres compliance; they having proved they made repeated efforts to comply and were
prevented. The same principle contained in HUIDEKOPER's Lessee v. DOUGLASS. Such, also, was the law in the Indies, and if
not complied with they were taken back and given to another. 2 White;
STROTHER v. LUCAS, etc. By compliance, they received an absolute grant
or royal title. BROWN, having received the deed with the
conditions thereunto annexed, during the existence of the civil law, it may be
well to see what was its import. It is laid down as the nature of a
condition, that if accomplished, it confirms the contract; if not,
the contract is invalid. The common law definition, as found in 4th Bac. Abr.
165-6, would not be much more favorable. We look on the matter in this
way: BROWN's title is the evidence of the contract between him and the
government. The circumstance of his having a deed cannot place him in any better
situation than an emigrant who has arrived in the colony with his family,
with all the qualifications requisite by law, received and admitted by the empresario and commissioner; his quota of land surveyed for him, and he put
in actual possession. Could the party last designated claim the absolute
title or fee without showing a compliance on his part? Then can BROWN? His
title is only prima facie evidence of the existence of the facts which
entitle him to the land. This presumption is destroyed by the facts admitted. *6 The officers of the government, who made out
the title for BROWN, were the attorneys in fact, with the law for their guide.
Whatever the law has given passed, and no more; beyond the law, no
public officer could extend its operation. If the law impose a condition precedent to
obtaining a right, without the performance of that condition, no right could
ever vest. The documents that were given him, to serve as a title, would be as
blank paper, and it would be idle to speak of a forfeiture or anything
else, to divest what had never vested. At the common law, future conditions in a grant
must be performed, and must be so found. When an act of forfeiture takes place by a man's
own act, any person, even a stranger, may enter.Having,
then, established that the deed of BROWN is, and was from the beginning, null and void, I maintain
that the plaintiff had the right so to consider it; and that he has pursued the proper
course to establish his own claim. He has shown that he held a good and
valid certificate for lands, which the government promised to satisfy out of
her public domain. This gave to the appellant the right to look into the
state and character of the funds to which he had to look for payment. The claim
of BROWN can certainly stand in no better situation against the government of
Texas than it did against that of Coahuila and Texas. If it was void as to them, it surely will be as
to the republic of Texas. If, then, the pretended claim set up by BROWN
was void as against the republic of Texas, the means by which it was
obtained from that government may be inquired into by any person having a just
claim against the common fund, thus fraudulently appropriated to his
prejudice. In the case of POLK's Lessee v. HILL, Wendell et al. on this subject,
the supreme court of the United States say, that it
would be extremely unreasonable to avoid a grant for irregularities
of the officers of government, whose duty it is to supervise all
the proceedings from the commencement to the consummation. But that there
are some things so essential to the validity of such a contract
that the great principles of justice and of law would be violated, did there
not exist some tribunal to which an injured party might apply, in which the
means by which an elder title was required might be examined into. What other means pointed and allowed by our laws
could the appellant have pursued? None other. By the common law, the
party who conceived himself aggrieved could avail himself of the invalidity
of the same in any shape or form of action in which it might be presented.
In ejectment most certainly. In the courts of the United States some
contrariety of opinion prevails, but that he could do so in equity, all agree. *7 Our proceeding is in the nature of a bill in
equity. We set out our claim; we show the interference or prevention of
its satisfaction; we ask that the intervening claim be annulled, and that
the officers of government be compelled to allow and consummate ours,--all
the qualities of a bill in chancery. But we further insist that should the court not
be inclined to treat the claim of appellee as a nullity absolute, that
the record in this case shows that the appellee has no right or claim to the
land in dispute. It shows that he was a colonist and received his title
papers, now insisted on as such. It is important to understand the
character of the claim he held. It was under the law and must conform to it. Was
it an absolute conveyance by the government of the lands? A title to the
property in fee? or was it an agreement for such, under conditions and
limitations, both in the law and in the deed? That it was the latter is most
manifest, when we consider the object of the donation and policy of the
government. Mexico was endeavoring to settle a wilderness. The most practicable
plan she could adopt was the empresario system. She gave large boons to empresarios
and held out great inducements to the actual settlers. She said in
emphatic language to the empresario, if you fail in your contract, if you introduce
ninety-nine settlers and not the hundred, the whole contract
shall be absolutely null. It cannot be supposed that she would be more
favorably inclined to the colonists than to the empresarios
themselves. If the colonists fail on their part, the objects of the government are
subverted. But they did not receive a fee simple title;
they only received a conditional one, that was to serve them as a
title. These could only be considered as merely
conditional fees. No entry or other proceeding was necessary to divest the imperfect
estate out of the colonist who failed to comply with conditions expressed
in the grant, or the law under which he held. Noncompliance, ipso facto, revested the estate in the original grantor, the government. As the case put in the first instance, of COKE,
where land was granted to a man, that if in five years he pay forty
marks he should have a fee, but if not, his estate to continue five years; on
failure no entry is necessary, the estate is gone. The act of law, without office found, would cast
the estate on the grantor. Wherever the law declares a forfeiture, or that
a deed or grant obtained under particular circumstances void, there is no
necessity of any direct judgment or decree to render it a nullity. *8 And any circumstances of invalidity may be
shown, in any possible action, before the repeal of a conditional grant. WEBB, for the appellee, presented the following
propositions, as being sustained by the record and the law: 1st. The land in controversy was granted to
BROWN, by an officer of the government having full power and authority to
make the grant. The authority of Commissioner Talbot CHAMBERS is not denied. 2d. The terms used to characterize the grant
import that "the right, title, legal estate, property and ownership" of
the land had passed from the grantor to the grantee. The grant must be taken
as an absolute and unconditional one, unless the contrary be shown. 3d. "Grant" is a generic term. It may
be applied in its lowest sense to a bare permission to do a thing, as in the case of
KINGSLEY. But when applied to the conveyance of land as a
technical term, it is then one of the strongest words in the English language
to show that the conveyance was an absolute and unconditional one. 4th. The court will never infer or imply that
there are conditions to a grant which do not appear on the face, unless
the law under which the grant is made imposes them. 5th. The court will never presume fraud in a
transaction which can be ascribed to an honest motive. No number of
frauds which a man may have perpetrated through the course of his life will
vitiate or affect a transaction not directly connected or tainted
with them. Fraud, to affect an act, must attach directly to the act. 6th. If there be a law, under which the grant
could have been made, without its being affected with the fraud alleged in the petition,
the court will suppose that law to have been the one under
which it was made, until the contrary is shown. 7th. If BROWN were a purchaser under the law of
1834, p. 247, no allegation of fraud contained in Horton's petition could be
made to apply to his grant. 8th. The fact that the title to BROWN was made
by Talbot CHHAMBERS, the ""commissioner of Milam's colony,"
does not repeal the presumption that the land was purchased by BROWN under the law of
1834, because there is nothing to show that he was not either a
"general" or "subordinate" commissioner, which that law authorized. He may have been a
commissioner of MILAM's colony, and also a commissioner of Texas, to
convey lands sold under this law; there is nothing incompatible in the two
appointments. If he were a subordinate commissioner, his duties may have
been confined to "MILAM's colony," as by the law, the district in
which he exercised his functions was to be limited. *9 9th. If an officer of the government,
acknowledged to be so, do an act virtute officii, the act will be
considered as within the scope and power of his authority, until the contrary be shown. The
onus probandi lies on the party denying the validity of the act. 10th. If an act be done by an officer whose duty
it is to judge of the performance and rectitude of the steps which are
to precede it, the doing of the act is a determination and judgment that the
precedent steps have been performed, and were performed in good faith. The
act is res adjudicata of the preliminary and precedent steps. 11th. If this were an absolute and unconditional
grant of the land to BROWN (and the terms employed to characterize the
grant import it to have been such), the fee to the land was vested in the
grantee immediately upon the execution of the grant, and the grant was
indefeasible. 12th. If BROWN acquired this land by purchase
under the law of 1834, the only condition which could have attached to the
grant was the one of settling in the state within twelve months. This
was a condition in law and subsequent to the grant. 13th. The conditions of taking the oath to
support the constitution and laws, etc., and of becoming naturalized in one
year, were conditions precedent to the grant and must have been
performed before the grant could have been made. The making of the grant,
therefore, is conclusive proof that these precedent conditions have been performed. 14th. The only condition which followed the land
in the hands of BROWN, to wit: that of settling in the state within twelve
months after the grant was made, being one to be performed subsequent to
the grant, the fee vested in the grantee eo instanti, upon the execution of the grant, and it being a condition reserved for the benefit of the
grantor, he alone could inquire into its performance or non-performance -- third
persons had nothing to do with it. 15th. If the fee vested in BROWN upon the execution
of the grant, and the grantor sought to divest and reclaim it for the
non-performance of a subsequent condition running with the land, he
could only do it by a judicial inquiry and investigation in the nature
of an inquest of office, showing that the subsequent condition had not
been performed. Until "office found," the grantor himself could not enter
upon or take possession of the land. This principle is recognized both by the
common and civil law. The six questions of GAUDO and the answer of SAAVEDRA
thereto. *10 16th. It is of no consequence whether the
fee which vested in BROWN was a fee simple, or fee conditional was the fee,
and if it had passed, it would have to be reclaimed, before it could be
reinvested in the grantor. 17th. If BROWN obtained this land as "a
colonist," or "head of a family," and the fraud charged in the petition attached
to the grant, still no person but the grantor would have a right to set aside
the grant for the fraud. If he was content to submit to it, no third person
would have a right to complain or inquire into it. If A. cheats B. out
of his horse or land, C. would have no right to sue for or take
possession of either. The former rights of Mexico in the land, having
by the revolution inured to Texas, the government of Texas alone could
inquire into the terms upon which the grant was made, and seek its forfeiture or
annul it, for the fraud which was practiced in obtaining it. It is true the government might authorize others
to make the inquiry, but until the authority be given, no third person
could interfere. 18th. A grant fraudulently obtained is voidable,
and not void. And none but the grantor or his heirs could avoid it. 19th. If a grant of land were obtained by fraud,
and before the grantor avoided it, the land was conveyed to a third
person for a valuable consideration, who was an innocent purchaser
without notice of the fraud, the land could not be reclaimed from him; and
this shows the grant in the first instance to be voidable only. 20th. To avoid a voidable grant, a judicial
inquiry and decision is as necessary, as it is to reclaim a fee which has
vested in the grantee, for the nonperformance of subsequent conditions; and
none but the grantor or his heirs can institute that inquiry. 21st. There is but one possible case in which a
third party could inquire into the validity of a grant of this kind, and
impeach it for fraud. And that is, where the grant affected his
pre-existing rights; and it will not be pretended in this case that HORTON had any
right to the land in controversy when the deed was made to BROWN. 22d. The commissioner, CHAMBERS, was an officer
appointed by the government to determine who were entitled to lands as
"colonists," or "heads of families." His duties in this respect were
judicial, and his decision upon the application of a party for lands was a
judgment which determined that question. Can this judgment be inquired into
collaterally? I think not. He certainly had jurisdiction over the subject
matter. *11 23d. Articles 26, 27, 28, and 30 of the
colonization law of 1825, p. 20; and arts. 30, 31, 32, and 33, of the
colonization law of 1832, p. 193; and arts. 4, 8, and 9, of the commissioners'
instructions, p. 71, all show that the colonists received full titles to their land
in the first instance; the fee therefore vested in them subject to be
divested upon the nonperformance of the subsequent conditions. Laws Coahuila and
Texas. 24th. How could the grantees dispose of their
land as authorized by arts. 27 and 28 of the colonization law of 1825, and by
art. 31 of the colonization law of 1832, if the fee was not vested in them? 25th. Articles 26 and 30 of the colonization law
of 1825, and art. 33 of the colonization law of 1832, show that an inquiry
and decision is necessary to divest the colonists of their lands previously
acquired. How is the political authority to proceed to take back
their lands and titles under article 26, unless it does something? And what
is that something to be done? And how is it to be ascertained under articles
30 and 33, that the colonists did not alienate their lands according to the
law, unless the matter was inquired into, by some tribunal authorized to
make the inquiry? This inquiry is an inquest of office. The decision upon it
is, "office found." Again, how could the political authority
"proceed to take back the land and titles" of the colonists unless the
colonists had previously obtained their land and titles? 26th. Article 15 of colonization law of 1825
presents an illustration of a condition precedent to the grant, and shows the
difference between that and a condition subsequent as defined by art. 26.
Unmarried men are to receive only a fourth as much as married men, but if
they marry, the quantity shall be made up. Their right to this additional
quantity depends upon the performance of this condition precedent of
marrying, and until they do marry, their right does not vest, but still it
exists. But their right to the fourth vests immediately. They receive the
land, and their titles for it. 27th. If there was any law which authorized
private individuals to hunt up land that ought to be forfeited for a
noncompliance with subsequent conditions, or because the grants were obtained
by fraudulent representations; and to denounce them and obtain
a decree of forfeiture, and thereby obtain a grant to themselves of the same
land, then the appellant might have instituted an inquiry as to the mode
by which Brown obtained his land. But there is no law giving any such power
or authority; on the contrary, it is made the duty of the
"political authorities," or agents of the government, alone to do it. 28th. If the grants made to the colonists, or
purchasers of land under the government of Coahuila and Texas, were
permissions to go upon the land to do certain specified acts, as in KINGSLEY's and all
that class of the Florida cases, then there would be a good reason for
saying that they were conditions precedent, and that a title to the
land had to be made after the conditions were performed. But it is the first
time I have heard it asserted that all the titles made to the colonists in
Texas had to be renewed or confirmed after the expiration of six years from
the time they received their grants, and upon their showing that they
had performed all the conditions required by law. If this proposition
were true, then there is not a good Mexican title in Texas, for none of them
have been confirmed in this way. *12 29th. The Mexican titles in Texas are not
mere concessions. They are like the grant in Arredondo's case, absolute and
vesting the fee eo instanti in the grantee upon making the grant, having
condition, however, running with them, upon the nonperformance of which, the
grant may be opened and the fee divested, if the grantor think proper to
reclaim it. 30th. There is, besides, this broad distinction
between all the Florida cases and the present one. There the parties
were seeking to establish their grants. They voluntarily went before the courts,
to allege and show that their grants were honestly obtained, and that
they had performed all that was required of them by law to perfect them. The
onus probandi was upon them. But here the grantees have never been
called upon by any law or regulation of the government to show that their
titles were perfect and all the conditions performed. Had Texas after her
revolution thought proper to subject them to this ordeal, they would then
have had to do what was done in Florida, show that their titles were good. But
Texas has required nothing of the sort, and no third person has a right to do
it, or to interfere in the matter. After stating the facts of this case, the
opinion of the court was delivered by THOMAS J. JENNINGS, Esq., special associate justice,
as follows: After this cause was
argued in a manner manifesting great ability and research, and submitted to us for consideration,
the opinion of the court was delivered by the chief justice in the case
of The Heirs of Kinchen HOLLIMAN v. Robert PEEBLES. As we fully concur
in the reasoning and conclusion of the court in that case, that
opinion turning, as it does, upon facts which are of like import in both
cases, but which are even more fully exhibited and definitely ascertained in
the record before us than in that case, is decisive of this cause. The
doctrine advanced and fully sustained by argument and authority in that
opinion, when applied to this case, decides that the defendant, by not in fact
fixing his domicile in Texas, and by admitting that he never intended
to do so; or, if he ever had his domicile in this country, by transferring it
to a foreign country, with a declared and admitted intention of never
returning; or, in other words, by abandoning the country, would have forfeited his
title under the colonization law under which he claimed, and the
land in controversy would have immediately reverted to the government,
even if the defendant had, previously to such abandonment, attained the
status, by acquiring the qualifications, of a citizen, and performed the
condition of cultivation imposed by the law of his grant. 2. And that to entitle another to a regrant of land thus forfeited and reannexed to the public domain, under the land laws of Coahuila
and Texas, as interpreted by the rules prescribed by the
civil law of Mexico and Spain, no inquest of office, or other judicial
proceeding or sentence, was necessary. *13 Tested by these rules the defendant, upon
the state of facts presented by the record, had no valid title of any grade
to the land in controversy, when the petitioner applied for a patent for the
same, and the claim of the defendant constituted no legal obstacle to the
success of the petitioner in that application. We are, therefore, of opinion
that the judgment of the district court ought to be reversed; but we are
asked to go further and give such judgment as the district court ought to
have given, upon the facts and admissions presented by the record. The authority of Mr. BUNTON to represent the defendant
in the conduct of this cause appears to have been fully recognized
in the court below, and has not been called in question here. The fact that
a general demurrer to the petition had been filed by him shows that he was
not unmindful of the difference, in legal effect, between "the
implied admission for the sake of argument" of the truth of facts, which that
plea imports, and the express and positive admission of "the facts
alleged in said plaintiff's petition," stated in the entry of the judgment of the court
to have been made by him in the name of the defendant. It may be urged that
the statement of this admission and what immediately follows it is but
an awkward entry of the action of the court upon the demurrer. This may
possible be so, but we can only know the grounds upon which the court
proceeded in rendering its judgment from the language of that part of the
record which purports to state them. And that language, in this instance,
we think, imports that this cause was submitted to the court for decision
upon the admitted truth of the facts stated in the petition. And this opinion
is fortified by a stipulation in an agreement signed by the counsel of both
parties (contained in the record) "that the pleadings in the case
shall be sent up to the supreme court for adjudication and decision, without any
other statement of facts accompanying the record." Now there was no
evidence offered in the case, as the manner of proceeding indicated by the entire
record shows, and what can the phrase, "other statement of
facts," be intended to have its contrasting reference to, if not to the "statement of
facts" contained in the petition (a part of the pleadings), and verified by the
defendant's admission? Wherefore, it is ordered, adjudged and decreed
that a judgment of the district court be reversed, and that the
mandamus issue in accordance with the prayer of the petitioner, on payment of all
costs by appellant. Supreme Court of the Republic of Texas. REPUBLIC OF TEXAS v. THOMAS I. SMITH. No. XVI. January Term, 1841. *1 From the record in this case it appears that
SMITH, the appellant, was indicted at the spring term of the district
court for Travis county for "holding a faro bank, for the purpose of
playing at faro and inviting and receiving bettors," and at the fall term
was tried, and the jury returned a special verdict of "guilty of dealing faro
in the city of Austin, previous to 1840, and after the first of May, 1839."
Upon the return of this verdict, the appellant, by counsel, moved in arrest of
judgment, upon the ground that Austin, where the offense was alleged to have
been committed, at the time charged in the bill of indictment was within the
territorial limits of BASTROP county. The motion was overruled by the
court, and the appellant was ordered by the court to pay a fine in accordance
with the statute passed May 26, 1837, entitled "An act to suppress
gambling," of five hundred dollars, together with costs of prosecution, and to
remain in custody of the sheriff until the sentence of the court was complied
with. From this judgment of the district court the appellant prayed an appeal to
this court, and charges error in the court below in overruling the
motion in arrest of judgment. Before we proceed to the discussion of the
question, as to whether it was error or not in the court below in overruling
the motion in arrest of judgment, we will meet and dispose of a
preliminary question of paramount consideration, and that is, "Has the
defendant in a criminal prosecution, upon an indictment in the district court, the
right of an appeal to the supreme court?" We think that he has. We
believe that such a right is in accordance with the genius and spirit of our
institutions, and secured to him by the constitution and laws of this
country. And it must, we think, be conceded by every one,
that it is a question, whether considered with reference to the infancy of our jurisprudence
yet to be perfected by subsequent adjudication and the wisdom of the
legislature, or the almost untried harmony of our institutions, political
as well as judicial, which have as yet been but slightly explored and
partially developed, or the sacred character of the rights to the citizens,
as one involving the most grand and solemn considerations. The word "appeal" comes from the civil
law, and the nature and operation of an appeal, in a technical sense, cannot be a
subject of doubt in proceedings governed by that law. Indeed, it is sometimes
used to denote the nature of appellate jurisdiction, without any regard to
the particular mode by which a cause is transmitted from an inferior to a
superior jurisdiction. In this sense it is used by BLACKSTONE when he speaks of
the court of exchequer as a court that hath no original jurisdiction. So
also the same elegant writer denominates the house of peers of England as the
supreme court of the empire. There are some other senses in which the word
occurs in the common law, which we may pass over in silence, as they have
no application to the present inquiry. *2 Appeal ("appellatio"
in the civil law) is defined, "Ab inferioris judicis sententia ad superiorem
provicare," "the removal of a cause from
the sentence of an inferior to a superior judge, or,
as BLACKSTONE has expressed it, "a complaint to a superior court of
injustice done by an inferior one." Calveus has collected the definitions given by many learned
civilians, but they all resolve themselves in the above. (See
Black. Com.; Calveus' Lexicon," "Appellatio;"
Sheperd's Abridgement, "Appeal." Each of these definitions accurately states the meaning,
but not the mode or effect of an appeal. The remedy by appeal, as known and practiced in
England, is in a great measure confined (for I speak not of appeals of
death and of robbery, and of summary proceedings before magistrates) to
courts of equity, admiralty and ecclesiastical jurisdiction, in all of which no
jury intervenes, and in each of those courts the judge is in general the sole
arbiter both of the law and the facts, and the mode of proceeding is
borrowed almost exclusively from the civil law. And it is undoubtedly true, that in courts
proceeding according to the course of the civil law, an appeal from an
inferior to a superior tribunal removes the whole proceedings, and usually,
though not invariably, opens both the law and the facts for re-examination. By the 8th section, 4th article, of our
constitution, we find the supreme court of Texas clothed with appellate jurisdiction
only, which shall be co- extensive within the limits of the republic; but
neither in that section, or elsewhere in the constitution, do we find its
appellate jurisdiction restricted to any particular class or character
of actions. We search in vain in that instrument for any such
restriction. It cannot be found. But on the contrary, in the declaration of rights, it
is emphatically declared that all courts shall be open, and "every man
for any injury done him in his lands, goods, person or reputation, shall have
remedy by due course of law." We think it clear, then, that the right of
appeal from the district court to the supreme court in criminal prosecutions as
well as in civil actions is secured to the defendant in such prosecution by
the constitution. But if we were of opinion that any doubt could be
entertained of the clear and indefeasible right to an appeal in criminal
cases by the constitution (and indeed we have none, but rest it upon that
instrument alone), that doubt would in a great measure be removed by the act
entitled "an act to establish and organize the supreme court, and to define
the powers and jurisdiction thereof." In the third section of that act
there is a legislative declaration of the right of appeal in criminal
as well as civil cases: "And the said supreme court shall have jurisdiction
over and hear and determine all pleas, plaints, motions and controversies,
civil and criminal, which may be brought before it." And in the sixth
section the same right of appeal is clearly and indisputably recognized in language
which none can mistake, in the following words: "The sentence of the
supreme court, in all criminal prosecutions brought before such court from any
other courts, shall be executed in like manner in all respects as if
such sentence had been rendered in the court wherein the prosecution
originated; and the sheriff of the proper county shall be charged with the
execution of such sentence." Hence we see that immediately after the
organization of our government, a legislative declaration of the constitutional
right of appeal in criminal cases was made. But it was contended by the
district attorney for the third judicial district and by the attorney general,
that if indeed the supreme court had jurisdiction of criminal cases and
could hear and determine all manner of pleas, plaints, motions and
controversies, civil and criminal, yet it could exercise that jurisdiction only by writ
of error, and not by appeal. That the common law having been adopted
by the constitution in criminal proceedings became a part of that
instrument, and by that law a cause was removed from an inferior to a superior
tribunal by writ of error only and not by appeal. That by writ of error,
the errors of law alone could be examined in the supreme court, and that the
usual effect of an appeal from an inferior tribunal, being one that opened
the facts as well as the law for re-examination, could not be admitted as
a right to the defendant in the district court in a criminal prosecution,
because no such right was ever known to the common law of England. *3 We frankly admit that we search in vain in
the common law for an instance of an appellate court retrying the cause upon
the facts; and we know that the only mode known to the common law of
removing a cause from an inferior to a superior tribunal was by writ of error. But
we cannot admit that in adopting the common law the convention intended
thereby to adopt irrevocably the practice of the common law in criminal
proceedings, and tie down the legislature of the country to the common law
course of proceedings. For we see that the very framers of the constitution
itself, after adopting the "common law as the rule of decision in
criminal proceedings," have gone on and made considerable innovations in the practice
of that very code which they had just adopted. At common law, in
criminal cases, the defendant had not the right to have compulsory process to
compel the attendance of witnesses, etc. He had not the right to be heard
by counsel, except upon collateral or incidental questions; he had not
the right of the writ of habeas corpus; nor did he, indeed, have the
right of the benefit of testimony in his favor under the sanction of an
oath; all of which is secured to the citizen by our constitution and
are innovations in the practice of the common law. It is our opinion,
then, that the convention intended only to adopt the common law, to use
their own language, "as the rule of decision" in criminal proceedings;
and no more of the forms and peculiar writs of that code than might be found
necessary to carry out the objects contemplated by that adoption. And
surely the convention never intended, when they inserted in the constitution
a provision creating an appellate court in criminal as well as civil
cases, to deny the accused who might wish to appeal from the district court to
the supreme court the right of having the facts of his case, as well as the
law, opened to re-examination. We cannot believe it. We decide,
then, that the defendant in a criminal prosecution in the district court has
the right of appeal to this court from the judgment or sentence of the court
below, and to have the facts as well as the law, at his own election,
opened for re-examination. Having disposed of the preliminary question that
the defendant in a criminal prosecution in the district court has the right
of appeal from the judgment of that court to the supreme court, and shown
conclusively, as we believe, that the constitution has given the supreme
court jurisdiction by appeal in criminal cases, we will next proceed to inquire
whether it was error in the court below, in the case now under
consideration, in overruling the motion in arrest of judgment. We will consider this
decision of the district judge, with an eye both to the law and the facts as
shown by the record. The motion in arrest of judgment was predicated
upon the fact that the "dealing of faro, the offense charged in
the indictment, was committed before the passage of the act entitled 'an act
creating the county of Travis' and within the then territorial limits
of BASTROP county." Numerous authorities were cited by the counsel for the
appellant upon the trial of this case in the supreme court, to show that it
was error in the court below to overrule the motion; but we are unable to see
their application in this case; and we are satisfied that they do not
comprehend this particular case. The motion was bad in arrest of judgment and
properly overruled. If the reasoning was good in support of the motion in
arrest, it would be equally good under similar circumstances in BASTROP
county, because it was once called "Mina;" and in Harris county,
because it was formerly called "Harrisburg." The present congress has
passed an act dividing Red River county into Red River, Bowie and Lamar; and this
doctrine, if it were correct, would protect from just punishment any
offender, however flagrant his offense, if committed before the passage of
the act dividing the county, unless the offense should have been committed
within the new territorial limits of Red River county. The counsel for the
appellant with candor admitted that the appellant could not have been
properly indicted and tried in BASTROP, and contended that inasmuch as the
act creating the county of Travis contained no special provision for such
cases as that of the appellant, that he could not be legally tried
and convicted in either county. But what, we will ask, was the intention
of the legislature in passing the act creating the county of Travis?
Was it to protect the guilty from punishment? Was it to open the prison doors
to them that were bound, without making any compensation to an injured
community and the violated laws? Was it to encourage crime and insult the
majesty of the constitution? No! It had other motives and other intentions in
view. Of this we are certain. And what they intended is binding upon
us in expounding the law. And so we decide and affirm the judgment or
sentence of the court below with costs, and order that this cause be certified to
said court according to law, and that the sentence of said court be
executed according to the record. Const. art. 4, § 8, clothes the supreme court
with appellate jurisdiction only, coextensive with the limits of the
republic, without restricting its jurisdiction to any particular class or
character of actions; and section 11 of the declaration of rights declares that all
courts shall be open, and "every man, for injury done him in his
lands, goods, person, or reputation, shall have remedy by due course of law."
Held to secure a right of appeal from the district to the supreme court in
criminal prosecutions, as well as in civil actions. [Opinion delivered by Judge HANSFORD.] *4 Judges HUTCHINSON and SCURRY say: "We concur in the result of this opinion;
and that result, though attained by the members of the court upon some diversity
of reasoning, etc., is to be the law of the case." [Nothing on record to show any further
concurrence.] |
|
|
|
|
|
|
|
|
|