Morgan C. Hamilton v. Willis Avery, 20 Tex. 612

Roberts, J. The land located and surveyed by Hamilton, by virtue of a land warrant for 1120 acres, is situated entirely out of the limits of Austin’s Little Colony, (as it is called.) The survey was made in April, 1847, and the field-notes were examined and returned into the General Land Office before suit was brought by Hamilton, which was on the 7th September, 1849. Avery claims title to the land sued for, under a grant issued to him “as a colonist in the enterprise of colonization contracted with the Government of the State of Coahuila and Texas by the empressario Estevan F.

Austin, on the 20th of November, 1827,” by Arceniaga, Commissioner to issue titles to the new colonists. The title bears date the 13th of November, 1832. The league thus granted lies partly within and partly without said enterprise, (which is known as Austin’s Little Colony,) nearly all of it being without the limits, and covers the land claimed and sued for by Hamilton.

It is sought to obviate the difficulty here presented, of the land in controversy being out of said colony, by showing that after this contract of 1827, and at the time of this grant in 1832, Austin and Williams had a colonization contract for the land which was included in the grant, and which is now in dispute, and that they gave their consent to this selection of land by Avery, and which, it is contended, was authorized by Austin’s contract of 1827.

It is only necessary to recite the clause under which this is claimed, to show that it is not tenable, both from the terms of the contract and the proof that the land was not anything like exhausted in the Little Colony when this grant was made. The fourth

Article reads as follows : “ Should the territory herein described not be sufficient for the location of the above mentioned one hundred families, the greatest number possible shall be settled therein, and the remainder may be settled on any of the vacant land already contracted for by the said empressario.” It was also in evidence that Avery was present when his survey was made in 1832, and knew that the portion of the land which is now in controversy was without the limits of the colony.

Hamilton’s survey is north of Brushy, which is a tributary of the Brazos; and the line of Austin’s Little Colony is the dividing ridge between the waters of the Colorado and Brazos. The first question arises upon the validity of that portion of Avery’s grant that is without the limits of the colony, which is covered by Hamilton’s survey. This is decided in the case of Mason v. Russell’s Heirs, (1 Tex. R. 730,) and confirmed in the ultimate adjudication of the same. (8 Tex.

R. 226.) In that case the Court say, in speaking of the Commissioner’s authority : “ His authority was not general, so that it would embrace land anywhere in Texas; it was limited to a particular tract of territory, designated by the law of the contract; beyond such limits his acts would be void, because, acting on a subject-matter over which the law had given him no control.” And it was held that, as the grant was a nullity, parol evidence was admissible to prove that which made it so. (1 Tex.

R. 730.) The same principle, applied to this case, would determine Avery’s grant, as to the land in controversy, absolutely null and void. The principles of the case of Hamilton v. Menifee, (11 Tex. R. 748,) of an unascertained boundary, do not apply to the facts of this case. So stood the case at the time of the trial below. In 1854, after this suit was determined below, the Legislature of the State passed

an Act confirming Avery’s title to his said league, with the following reservation: “Provided, that nothing herein contained shall be so construed as to affect the rights of third parties.” Admitting that, under the authority of Jennings v. De Cordova, (decided at this Term,) the Court can consider this Act, in deciding this case, does not this proviso save Hamilton’s right to the land from being affected by the Act, and place it on the same footing as though the Act had never been passed? This question, too, has been directly decided by this Court in the case of Howard v. Perry. (8 Tex.

R. 262.) In that case there was merely a survey, without any authority, under which Hibbins held as a colonist, apd there was a legislative grant of the land, with a proviso, “ that this Act shall not he so construed as to impair or affect the right of any person or persons claiming the land adversely to said Hibbins or his heirs.” It was held that this “ saving, contained in this proviso, embraces and reserves the right of the defendantand as the defendant had located and surveyed the land by virtue of a genuine certificate, and as the land had not been appropriated legally by Hibbins, and was therefore entirely vacant when surveyed by the defendant, he was entitled to recover, notwithstanding the subsequent Act of confirmation in favor of Hibbins or his heirs. ■ Although the words used in these two provisos are different, their meaning must be the same.

One saves the “ rights of third persons,” and the other saves the “right of any person or persons claiming adversely,” &c. The Legislature would hardly think it necessary to save the rights of persons who did not claim adversely to Avery; and it would be merely futile to save the rights of persons who had no claim at all.

The Legislature, in acting on a specific claim of this sort, it is to be presumed, examined into the facts of the case, and were fully advised that there was a conflicting claim set up to this land by third persons, and inserted this proviso for the express purpose of preventing the Courts from giving this confirmatory Act such a construction, as should in any manner affect the rights of third persons, whatever they might be. This view is sustained by the case of Hart v. Gibbons. (14 Tex.

R. 215.) There, the time had run out, in which Gibbons should have returned his field-notes; Hart located and surveyed the land; and afterwards a law was passed extending the time for the return of field-notes.

It was held that “no incipient or incomplete title acquired (by Hart) during that interval, could present any legal bar to a restoration of the rights of the first locater” (Gibbons.) Justice Lipscomb, in delivering that opinion, says, that if there had been a saving clause in the Act extending the time for the return of the field-notes, such as was in the Act for the relief of Hibbins’ heirs, (in case of Howard v. Perry,) “ there can be no doubt that the appellant’s (Hart’

s) right would have been in like manner sustained.” It is contended that “the rights of third parties,” which are not to be affected by this Act, in the case now before the Court, are vested rights, evidenced by a patent or an absolute title in fee from the Government, and not such an imperfect or incipient right as is conferred on Hamilton by his survey upon a land warrant, returned into the General Land Office. To support this proposition decisions of our own Court are relied on, as well as other authorities.

To a proper understanding of what has really been decided by our Supreme Court, it is necessary to have accurate ideas of what is called an equity, in contradistinction to the legal title, in lands. When a party has only a survey by virtue of a certificate, it is said to be an equitable title; and that term is used as matter of convenience, and in contradistinction to the patent’s being the legal title. Equity has been defined to be “ a right, existing in foro conscientioe, but which cannot be enforced by the strict rules of law.” This may be correct as a definition of a dormant equity.

But a subsisting equity, by the laws of this State, that recognize no distinction between law and equity, either in rights or their judicial preservation, confers a right of property by as strong a sanction, as that which exists by a right purely legal. Or in other words, a rule known to equity jurisprudence is as much a binding rule of action, as to all of our rights of property, in all our Courts, as though it were a rule of the Common Law, recognizable only in a Common Law Court.

By complying with certain rules of law, A makes a contract for land with B, pays the purchase money, gets a deed and has it recorded, and thereby gets a perfect right to the land. By complying with certain other rules, A makes a contract for land verbally, pays the purchase money, takes possession and makes valuable improvements thereon, and thereby acquires a right to the land from B his vendor, as fully sanctioned by our rules of action as prescribed by the Legislature of the State, and as fully recognized by all of our Courts, as though he had a deed to the land.

The considerations for which the Republic and State of Texas have granted land to our citizens, have been money, or services, or emigration to the country; and in order to grant her lands, by divesting herself and vesting in the citizen a perfect right, in the shape of a patent, to a particular tract, which was the ultimate object sought to be attained, it became necessary to prescribe certain rules, which established certain tribunals and officers, for the performance of certain duties, and which enjoined upon the citizen, seeking the land, the performance of (in addition to the consideration given for the land) certain duties to be by him performed, to accomplish this object.

These duties of the citizen were, to get his certificate in a certain time, designate the land, in a certain time have it surveyed, examined and recorded by the surveyor, and returned to the General Land Office.

Now the doctrines which the decisions of this Court have established are: First, that if the citizen, in any one of the steps, that have to be taken to acquire this perfect grant, and in the performance of a duty enjoined by these rules, thus established for that purpose, commits a fraud and thereby obtains a certificate, survey, &c., it is void; and the Government may, for its own protection against such fraud and imposition, prescribe additional rules, if necessary, imposing upon the citizen the duty, and giving him the opportunity, in a certain time, to show that the incipient right which he has obtained, as a certificate, survey, &c., is not tainted with fraud. (Hosner v.

De Young, 1 Tex. R. 769; League v. De Young, 2 Id. 497.) The Supreme Court of the United States, in affirming the case last cited, say, that “judgments as well as grants, obtained by fraud or collusion, are void and confer no vested title ; and a State may justly require those who claim that their grants are not of this character, to make proof of their genuineness in some proper tribunal, before they can be entitled to a survey or patent under- them, and may limit the time within which suits maybe instituted,” (League v. De Young, 11 How. R. U.

S. 203.) Secondly, this Court has held, that the State, by a legislative act, may waive its right to exact of the citizen a strict and full performance of any one or more of his duties, which have been imposed on him by these rules.

For instance, if he have a survey and fail to return it to the General Land Office in the time, within which these rules make it his duty to return it, the State may waive this neglect of duty on his part, and allow further time to do it; and if he should comply with this requisition, his original, incipient right to the land is preserved in its full vigor, if between the time he should have returned the field-notes and the time of the Act of relief, the Government has not granted the land by perfect title to another. (Hart v. Gibbons, 14 Tex. R. 216.) The same principle is maintained in the case of Warren v.

Shuman, 5 Tex. R. 456; Lewis v. Mixon, 11 Tex. R. 570; and Jennings v. De Cordova, decided at this Term. In all the cases of this character, the right of the party had legally attached to the land, by the performance of duty in some of the steps; by a legal survey, pre-emption settlement, &c.; and this is what is called an equity. As soon as the party was in default, by not performing a further duty enjoined upon him, the obligation of the Government to make a grant to that land ceased to be imperative. None of its officers could be forced, by judicial process, to recognize it as a subsisting right.

It was discretionary with the Government whether it would grant the land to another or not, and whether or not it would waive the non-performance of the neglected duty, and give further time to do it. But if it chose to waive it, and in the mean time a third party had surveyed the land, without getting a perfect title, during the dormancy of the original right, here were presented two claimants to the land, equal in right so far as the performance of duty in the steps of acquisition are concerned; and it is reasonable, in deciding between them, that the older right, other things being equal, shall be preferred.

In both classes of these cases there is nothing decided, which tends to establish that Hamilton did not have a right of property in the land, which the Government recognizes and protects, as against itself, and as against individuals who have no superior right. Our Courts have recognized a survey, by virtue of a valid certificate, as a valid right; a right of property, as fully as any other rights. It is a right binding on the Government; upon which the Government, through the Commissioner of the General Land Office, can be compelled, by judicial process, to issue a patent. (Com. L. O. v. Smith, 5 Tex.

R. 480.) It is recognized by the Government as his property, and not public domain, by being taxed and sold for taxes, the same as titled lands. (Hart. Dig. Art. 3137 ; Carroll v. Safford, 3 Howard, 459.) It confers the right to maintain a suit upon it, to try the title and eject trespassers. (Hart. Dig. Art. 3230; Ross v. Barland, 1 Peters, U. S. R.; Sims v. Irvine, 3 Dall. R. U. S. 456.) It gives a right which is the subject of possession; of purchase; and of inheritance. It is sold under execution, and administered in Courts of Probate.

It is regarded in the community as possessing but little less marketable value than patented land. Can it be reasonably supposed, then, that the Legislature did not intend, by the proviso in question, to save a right so valuable, and so fully clothed with all the leading attributes of property? This right is in nothing less meritorious than a right secured by patent. The citizen has done and performed every duty, incumbent on him about it, and has paid the consideration; and all that remains to be done is to be done by the Government through the Commissioner of the General Land Office.

The Legislature could have no motive to defeat or destroy a right of this sort, any more than a patent. If it be admitted that the Legislature had a right to affect or impair this right, and have not to impair a patent, why should they protect, by the proviso, what they have no power to impair, to wit: the patent; and leave unprotected a right equally meritorious, which their action (according to the present supposition) could impair.

Such a construction renders the proviso a mere idle superfluity, without effect of any sort, and presupposes an intention to make an invidious distinction against the right, which is only less perfect in form than a patent, and less perfect, not by the fault of the claimant, but by the delay of the Government in issuing a patent. And above all other considerations, it must be presumed that the Legislature acted under a just appreciation of the fact that this is a Government of law; that its essence is, and existence depends upon a due respect for individual rights legally acquired.

The construction, which alone comports with the intelligence, justice and impartiality of our Legislature is, that the proviso was inserted to prevent misconstruction of, and speculation as to, the meaning of the Act, and to give express notice, that it was not their design to affect, impair or destroy, even if they had the power so to do, any right of a third party, which had attached to the land previous to the Act, whether such right was perfect or imperfect. They were simply willing to grant Avery the land, but not to give him a preference over any one else who had rights in it.

It is assumed that Hamilton’s right to lift the certificate is an argument against the right being obligatory on the Government. It must however be remembered, that this was a privilege of the citizen, (previous to our late statute on the subject,) which is granted as a gratuity and favor by the State to receive or not receive a grant to particular land. It does not follow as a logical conclusion, that the grant of this privilege to the citizen confers a like privilege on the Government to grant or not to grant the land at its option.

These points being settled, it becomes unnecessary to discuss the constitutional questions presented in the arguments on both sides with signal ability. The conclusion then is, that this Act of the Legislature of 1854 was intended to leave unaffected the rights of these parties, as they existed before its passage; that Avery’s title was, ah initio, and is a nullity; and that Hamilton’s right is such a one as enables him to sustain his action. The verdict and judgment below being contrary to the law and the evidence is erroneous, and must be reversed and the cause will be remanded. Reversed and remanded.