John Summers v. B. H. Davis et al., 49 Tex. 541

Gould, Associate Justice. 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.) That part of the proceeding having reference to the Brooks league is as follows: “ Bluford Brooks, one league of land lying west of the Brazos river, near the San Antonio road; title dated 10th of August, 1824. The said Brooks abandoned the country in, 1825. The land is therefore vacant, and the title null and void; and the land can be granted to other emigrants.” We copy one other extract from those proceedings: “John K.

Williams, one league and labor of land lying on Cedar creek; title dated 29th July, 1824. The said Williams abandoned the country in the spring of 1825, and as he never complied with the requisites of the colonization law, by not cultivating the league of land which was granted to him, in conjunction with the fact of abandoning the country, all title and claim in the said league of land, which by said' concession was vested in said Williams, expired when he' abandoned the country; for which reason it is declared vacant, and the title for it null and of no effect.

The labor of land granted to said Williams he improved, and lived on, and disposed of it, and made a legal transfer, which he had a right to do. The title of the labor is confirmed.” The instrument ends by directing that “ a certified copy be passed to the empresario, Stephen F. Austin, for his information and the purposes for which he may conceive it necessary.” The Bluford Brooks league does not appear to have been granted to any one else until the patent to Hall, in 1863; and down to that time John Spear and his vendees remained in possession, undisturbed, no further action of the authorities appearing.

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 patent on any location hereafter made for any of the lands described in this act; and should any patent be hereafter issued for the same, or a part thereof, contrary to the provisions of this act, the same shall be null and void.” (Paschal’s Dig., art. 809.) On August 27, 1856, was also passed

an act entitled “An act to quiet land titles,” as follows: “ That the head-rights, augmentations, and special grants made to the colonists in the colonies of Austin and De Witt, are hereby ratified and confirmed, and all conditions attached to the same are hereby released; provided that this

section shall extend only to titles issued previous to the 13th day of November, A. D. 1835.” (Acts of 1856, p. 59, Gen. Laws, 4th Leg., adjourned session.) 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 is authority for the position that the decree of the ayuntamiento' declaring the land vacant, if followed up by a regrant by the proper authority, conclusively establishes the fact of abandonment, and consequent forfeiture, as against Brooks or his heirs. (Marsh v.

Weir, 21 Tex., 97; Holliman v. Peebles, 1 Tex., 699.) 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 favored by our laws; and as their title, if invalid, was so rather on technical grounds, than on grounds which affect the equity of their claim,itis diffieultto believe that they were not within the object and spirit of the law.

Even if, for the purposes of limitation, the effect of the decree was that the Bluford Brooks title was henceforth “ to be regarded as though it never had an existence,” we do not think that the Legislature had it in view that such was the legal status of such titles, or that the holders thereof were intended to be excluded from the protection extended to others. If such cases, however, had been contemplated, we see no reason to believe that the language of the act would have been changed.

The act of 1856, ratifying certain classes of grants, including headlights, and releasing all conditions attached thereto, shows that it was not the policy of our laws to enforce forfeitures in such cases. 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.