T. B. & E. P. Bryan et al. v. Thomas Shirley and Gustave Mayhoff, 53 Tex. 440

Gould, Associate Justice. The title under which plaintiffs in error claimed the land in controversy originated in a survey made in November, 1871, as on vacant public land. The defendants claim under a patent to Matthew Cartwright, assignee of Daniel Tanner, of date June 2, 1854, and show conveyance from Cartwright to Skaggs in 1863; mortgage by Skaggs to Andrews in 1866; and foreclosure, sale and purchase thereunder by defendants in 1874.

The survey on which the patent to Cartwright issued purports to have been made June 1, 1844, by virtue of a certificate to Daniel Tanner, issued by the clerk of the district court of Sabine county February 17, 1841, showing that Tanner’s head-right certificate having been rejected by the traveling board, he brought suit and recovered judgment establishing his right to a league and labor of land, the judgment directing the issuance of a certificate therefor. On February 18, 1847, O. M.

Roberts, judge of the fifth judicial district, certifies that “at the date of the within certificate ” the party issuing was clerk of the district court, and that his official acts were entitled to full faith and credit. The transcript from the general land office of the field notes, shows a certificate made by the district surveyor of Nacogdoches county, December 20, 1849; that the survey of “first day of June, A.

D. 1844, was filed in this office previous to notice of the existence and territorial limits of a contract entered into between the president of the republic of Texas and Charles Fenton Mercer, for the colonizing of certain lands therein designated.” The plaintiffs in error assert that the survey and patent under which defendants claim were each and both null and void, because at the date of the survey and the date of the patent the land was within the limits of Peters’ colony, and reserved from location; and further, that at the date of the patent it was also within the limits of the Mississippi & Pacific Railroad reservation.

It seems, though this appears to be a subordinate question, that the validity of the grant to Cartwright is also denied, on the ground that there was no valid certificate to support it. Under authority of

an act of date February 4, 1841, and of subsequent legislation, embracing

an act of date January 16, 1843, the president of the republic made four different contracts with Peters and his associates: the first of date August 30, 1841; the second, November 9, 1841; the third, July 26, 1842; and the fourth, January 20, 1843; by virtue of which contracts the vacant lands embraced within territorial limits set out in the contracts were reserved from location. Each successive contract added to the territorial limits of the preceding, the effect of the third being to remove the eastern boundary twelve miles east of that fixed in the first and second contracts.

The land in controversy lies within the limits of this extension. The colony contracts and the reservation expired on July 1, 1848, and from that date up to February 10, 1852, vacant laud within the colony was subject to location like other public land. See Stewart v. Crosby, 15 Tex., 546, where this court affirmed the right of parties to have patents on surveys made within the colony during this interval. See, also, Col. Soc. v. Reed, 25 Tex. Sup., 351. On February 10, 1852,

an act was passed by which “ lands lying within the limits and boundaries of said colony, and which by said contracts were reserved and set apart to the parties of the second part thereof, * * * shall continue to be set apart for the purposes herein named, for the term or space of two years and six months from and after the passage of this act, and shall remain and be held by the state of Texas for the purposes herein provided, until the expiration of said term.” This

section proceeds to prohibit the commissioner of the general land office from issuing patents on lands located in said colony other than for the colonists or the company, and other than “old surveys excepted by said colony contracts, located and surveyed before the date of said contracts, unless by the authority of the decree of some court of competent jurisdiction; and the rights or remedies in law or equity of those who may have made locations or surveys of land within the limits of said colony contract, shall not be impaired or changed by the passage of this act.” This reservation expired August 10, 1854.

Kimmell v. Wheeler, 22 Tex., 84. In the meantime, however, what is known as the Mississippi & Pacific Railroad reserve had been created by

an act passed December 21, 1853, this railroad reservation embracing that part of Peters’ colony including the land in controversy; it being provided in the act that it was not to “affect any right of location, or entry, pre-emption right or survey, heretofore acquired in the district of country reserved and set apart for the use of said road.” Pasch. Dig., art. 5038. This railroad reservation remained in force until January 1, 1857, when by statute public lands within its limits were again made subject to location and sale.

In 1844, what is known as Mercer’s colony contract was entered into, its limits apparently embracing the land crossed by the twelve mile eastward extension of Peters’ colony made by the third contract, and embracing the land in controversy. It appears from the evidence that patent on the Daniel Tanner survey was delayed because it was successively found to be within Mercer’s and Peters’ colony. The case was tried below without a jury, resulting in judgment in favor of defendants. The main issues of law between the parties will appear from the following extracts from briefs of counsel.

Plaintiffs in error say: “First proposition under seventeenth assignment of error: “The act of 1841, and the joint resolution of 1843, passed, by the congress of the republic of Texas, together with the several contracts made in pursuance thereof, between W. S. Peters & Co. on one part, and the president of the republic on the other, creating what is known as Peters’ colony, severed the land embraced within its territorial limits from the mass of the public domain of the state, and set apart and reserved it for the purposes of colonization. Pasch. Dig. of Laws, arts. 810, 811, 822, 850; Melton v.

Cobb, 21 Tex., 539; Patrick v. Nance, 26 Tex., 298; Woods v. Durrett, 28 Tex., 439; Stewart v. Crosby, 15 Tex., 548. “ Second proposition under seventeenth assignment of error: “Locations made on land within said colony limits and patent issued thereon, pending the reservation, are absolutely void, unless subsequently validated by the government. See cases to first proposition under this assignment of error, and Fowler v. Allred, 24 Tex., 184; Stoddard et al. v. Chambers, 2 How., 284; Todd v.

Fisher & Miller, 26 Tex., 239. “ Third proposition under seventeenth assignment of error: “ The land in controversy was within the territorial limits of the Mississippi & Pacific Railroad reservations, and the patent under which defendants in error assert title thereto was issued during the pendency of said reservation, for which reasons it is also null and void. Pasch. Dig. of Laws, art. 5038, and repealed sections 14 and 19; Sherwood v. Fleming, 25 Tex. Sup., 408; Kimmell v. Wheeler, 22 Tex., 84; Wright v. Hawkins, 28 Tex., 470; The State v. Delesdenier, 7 Tex., 76; Mason v.

Russell’s Heirs, 1 Tex., 721; Patterson v. Winn, 11 Wheat., 380; Mills v. Stoddard et al., 8 How., 345; 46 Tex., 70.” The defendants in error on their part submit the following propositions: “First. That the reservation in favor of W. S.

Peters and associates, referred to in the plaintiffs’ first proposition, was made under a contract and not under a law, and therefore no one but a colonist had a right to claim against a location made by another than a colonist. “An old survey under a headright certificate, and within the limits of a colony, is void only at the suit of colony contractors, or a colonist, having a prior equity by virtue of the colony contract. Melton v. Cobb, 21 Tex., 539; Patricks v. Nance, 26 Tex., 300.

There is no case in our reports authoritatively deciding that a survey made within colony limits is void, except where such survey was in violation of positive law. “Where an equitable right to the land prior to the patent has not been shown, the patent should be sustained, unless it appears clearly and beyond a doubt that the same was issued against the law, or without authority of law, and therefore void. To this extent only, on the subject of void patents, have the authorities gone. Sherwood v. Fleming, 25 Tex. Sup., 427; Wright v. Hawkins, 28 Tex., 470; Todd v. Fisher & Miller, 26 Tex., 241; Brush v.

Ware et al., 15 Pet., 106; 11 Wheat., 380; Peters’ Condensed S. C. Reports, 359. “Defendants are innocent vendees of the Tanner grant"for a valuable consideration acquired long after the issuance of the patent, and in ignorance of any defects in the title. Johnston v. Smith, 21 Tex., 728; Howard v. Colquhoun, 28 Tex., 135; Blythe v. Houston, 46 Tex., 76, 77.

Public policy, the quiet repose of ancient titles, and justice and equity alike demand that defendants shall be protected.” Defendants in error also assert that: “These surveys, made upon old headright certificates, within the boundaries of a colony, prior to the state constitution of 1845, have been fully recognized by the state of Texas, not as void, but as voidable only. “1. In the ordinance of 1845, declaring the colonization contracts unconstitutional, and authorizing ‘adverse claimants’ to plead the rights of the state. Pasch. Dig., vol. 1, pp. 75, 76. “2.

In the last proviso to 'an act requiring the commmissioner of the general land office to issue patents in certain cases,’ dated June 25, 1845. Pasch. Dig., vol. 1, art. 889. “3. By the provisions of the act relating to lands in Peters’ colony, dated February 10, 1852, excepting from its operation all prior surveys made within the colony. Pasch.

Dig., vol. 1, arts. 850, 860.” We have examined with care the authorities cited by plaintiffs in error, and have found no case where the reservation was made, not by express enactment, but under a contract, in which a patent, issued from the proper office at a time when, oil surveys lawfully made or renewed during a preceding interval, such patent might have lawfully issued, has been held void at the suit of parties having no equities anterior to the patent.

It is not to be denied that judges of high authority have spoken of the nullity of surveys and grants on land reserved from entry, in terms broad enough to include the patent in the case before us, but we have been cited to no instance in which the doctrine of their absolute nullity has been enforced in such a case as the present, and against parties who were purchasers twice removed from the grantee. A case much relied on as authority for the reversal of the judgment on the ground that the patent was absolutely void, is Stoddard v.

Chambers, 2 How., 284, which was again before the same court under the title of Mills v. Stoddard, 8 How., 345.

It is true that an entry and survey made during the reservation, on land reserved by law for the purpose of giving a preference to such land claims, originating under the Spanish or French governments, as might be recommended by the commission, were held void, and the patent issued on said entry and survey during the reservation, but after an interval during which the reservation had ceased, and the land might legally have been surveyed and patented, was also held void; but these rulings were made in favor of the claimant under the Spanish concession, a party having the oldest equity and for whose benefit the reservation was designed.

The holder of the oldest equity, the party whose rights under the legislative reservation had been infringed on by the illegal entry and survey, was protected, and as to him the illegal survey and patent based thereon were held void. Justice McLean expressly says: “The New Madrid location was void because it interfered with the Spanish title.” 8 How., 365. Again he says: “The inquiry here is whether the defendant has any title as against the plaintiffs.” 2 How., 317.

And again he says: “No title can be valid which has been acquired against law, and such is the character of defendant’s title so far as it trenches on the plaintiff’s.” Page 318. The patent was held void so far “ as it conflicts with plaintiff’s title.” The sense in which the patent was held void further appears when he says: “A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual.” Again he says: “If it has been fraudulently obtained, or issued against law, it is void.” 2 How., 318.

The purport of the case is, that the Hew Madrid claimant had acquired no such right by his illegal survey and the patent held thereon as “ could prevent the renewal of the reservation by congress.

By such renewal a preference was given to the Spanish claim, which was an exercise of legislative discretion.” The Hew Madrid certificate having been improperly located and improperly patented, and not located and patented under a “ law of the United States,” the court gave effect to the act of congress confirming the Spanish title as the older and better equity, and held the patent void so far “ as it conflicted with plaintiff’s title.” Page 318. By the confirmatory act, the older equity became the legal title. See Lewis v. Mixon, 11 Tex., 571; Field v. Seabury, 19 How., 332.

The case falls far short of being a precedent for holding the patent to Cartwright void, as to parties having no equity prior to its issuance. The case of Wilcox v. Jackson was one where a pre-emption claim and register’s certificate on land reserved was held. void; but in that case the reservation was for the benefit of the United States, as a military post, and the suit was substantially between the claimant and the United States, the defendant being the post commander. 13 Pet., 499.

Says Judge Napton, delivering the opinion of the supreme court of Missouri, in commenting on that case: “But it must be recollected that that was a controversy in which the United States was substantially a party; Wilcox, the defendant, having claimed possession as an officer in the army in possession of a military post, under the express order of the secretary of war.

Admitting the correctness of the decision in that case, we might well pause before we adopt in extent the language of the learned judge who delivered the opinion without reference to the question really at issue before the court. “It is unnecessary to enter into an investigation of the distinction between void and voidable acts. It is sufficient to say that acts which are even held void in common legal parlance as to some persons, are not necessarily void as to others; and when Mr.

Justice Barbour declared certain entries made with the land officers, of land expressly reserved from sale, to be absolutely void and null, it certainly was only necessary he should have declared them so as against the United States and those claiming under them. * * * Whatever irregularities might be committed by the agents of this general landed proprietor, the United States, their acts are to be held prima facie good, and no third person can be allowed to impeach them unless the principal should think proper to disclaim them.

Whatever is therefore merely voidable, where the officer had a general power to sell, and where there was no express reservation of the land sold, the sale is good as to all the world except the United States or those claiming under them.” Hunter v. Hemphill, 6 Mo., 106; see also Sarpy v. Papin, 7 Mo., 503; Barry v. Gamble, 8 Mo., 88; and Wright v. Rutgers, 14 Mo., 585. In the last case the court follows the law as laid down in Stoddard v. Chambers, the cases being apparently similar. But appellants also cite cases from this court, and we proceed to examine them. In Melton v.

Cobb, 21 Tex., 539, a party claiming under a survey made in violation of the Mercer’s colony reservation sought to eject a colonist, who, in the exercise of his privileges under the reservation, settled on the same land. The issue was the validity of the reservation. That being upheld, the colonist was of course protected against the wrongful survey, a survey which the court says “ was without authority and conferred no title.” In Kimmell v.

Wheeler, 22 Tex., 77, the holder of a Peters’ colony certificate in May, 1856, after the expiration of the colony reservation, located on land within the Mississippi & Pacific Railroad reservation, and sought to compel a survey on his location. The main question was the validity of the Mississippi & Pacific Railroad reservation. The reservation was supported, and the plaintiff’s claim, based entirely on a location in disregard of the reservation, was held invalid. In this ease the court says the location is void. It had not ripened into a patent and was manifestly invalid, which was enough for the case.

The distinction between a case where the invalid location or survey is relied on as title, and one where an illegal survey has been patented and the patent becomes the evidence of title, will become evident by looking at the case of Patrick v. Nance, in connection with that of Kimmell v. Wheeler, 26 Tex., 298.

A survey made December, 1846, in disregard of Peters’ colony reservation, having been patented in April, 1856, the holder under that title recovered against a colonist whose superior rights had been lost by acquiescence “ in the rejection of his field notes by a surveyor until the state had parted with its title by issuing a patent to plaintiff.” The original invalid survey would have been ineffectual as title, but not so after patent. Moreland v. Atchison, 19 Tex., 303, is simply to the effect that a pre-emption settlement in disregard of the Peters’ colony reservation conferred no right.

There was no patent — nothing but an invalid pre-emption claim. Fowler v. Allred was a case of a similar 320 acres preemption claim — originally invalid,—but, before any opposing rights, recognized and validated by statute to the extent of 160 acres. The patent improperly issued on this pre-emption after a valid location, was held effected only to the extent of 160 acres. Each party held the 160 acres to which he had the prior right. In Woods v.

Durrett, a survey within and during the Pacific Railroad reserve was held to present no cause of action, and is said to be void; but a patent having subsequently issued was upheld as evidence of title, “no older or superior equitable right to the land being shown.” 28 Tex., 437. Wright v. Hawkins was a contest between an invalid survey of a colony certificate, made in disregard of the railroad reservation, in August, 1855, and a notice filed and location made November 20, 1857.

The latter was held to be the better title, and to remain so, unaffected by a subsequent special act of the legislature, under which the former was improperly patented. It was held that the patent appeared to have issued by the direct command of the legislature, and that thus the presumption which it would seem might otherwise have been indulged, that the commissioner would not have issued it unless there had been a subsequent valid survey to authorize its issuance, was rebutted. Sherwood v. Fleming, 25 Tex.

Sup., 408, was a case in which a survey and patent, both during the railroad reservation, were held void as against a party who, on November 1, 1859, one year and nine months after the reservation had been raised, located on the same land. The survey and patent both being void, the prior right was held to be in the subsequent locator, and that right was unaffected by a subsequent act of the legislature conferring certain patents. This case presents the strongest application of the doctrine of the nullity of locations and patents within reservations of any which have been cited.

It is distinguishable from the present in the following important elements: 1. The land in that case was by statute expressly “ held in reserve by the state.” In the present, the reservation arises out of the contract. 2. In that case it affirmatively appeared that both survey and patent were without authority, and in violation of law. There was no period or interval of time when either survey or patent might have been valid. Here there was an interval of over three years, during which a valid survey or re-survey might have been made, and a valid patent might have issued.

There was reason to indulge presumptions in support of the validity of the patent. 3. It differs further in the absence of those considerations of equity and policy, which exist in the present case, growing out of the long interval after the patent during which it might have legally issued, during which the land passed into the hands of third parties, and during which, as well as prior to which, are to be found various legislative provisions scarcely consistent with the idea of the absolute nullity of the patent. Pasch. Dig., pp. 75-6 (ordinance of 1845), arts. 850, 860, 889, 890, 5038; sec. (19), 5045, 5051.

In the case of Todd v. Fisher & Miller, 26 Tex., 241, this court says: It cannot be questioned that where it appears, from an inspection of the patent, or the statute under which it issued, that .it was unauthorized by law, or that the officer from whom it emanated did not have authority to grant it, it cannot be regarded in any case as evidence of title, citing Doe ex dem. Pollard’s Heirs v. Files, 3 Ala., 47; Polk’s Lessee v. Wendell, 9 Cranch, 86; Patterson v. Winn, 11 Wheat., 380. To these may be added the references of Justice Wheeler in Sherwood v.

Fleming, and which, beyond cases already considered in this opinion, are Mason v. Russell, 1 Tex., 721; The State v. Delesdenier, 7 Tex., 76; Marsh v. Brooks, 8 How., 223; and Minter v. Crommelin, 18 How., 87. “But,” proceeds the court in Todd v.

Fisher & Miller, “if it emanated from competent authority, although in the preliminary proceeding upon which it is based—such, for instance, as the issuing of the certificate, or making the survey,— an illegality should intervene which eventuates in the grant of a patent to a party who otherwise would not have been entitled to receive it, yet, as it is made by an officer authorized to make the grant, and whose duty it is to pass upon the sufficiency of the evidence on which it is issued, it appears to be held by the great weight of authority that the state, or some one having a color of title or equitable interest in the land, can alone attack the patent for such illegality.” Citing numerous authorities.

The opinion proceeds: “If this is not so, all distinction between acts void and voidable is destroyed. But perhaps it may be said that the commissioner of the general land office has no authority to issue a patent unless the preliminary requisitions of the law have been complied with; and, if he were to do so, it consequently should be held, when this is shown, not to pass the title. Such a conclusion would subvert in a great degree the efficacy of the patent, and would leave the party in a worse condition than while his proceeding was in limine, for then, if it were held erroneous, he might correct or amend it.

The question suggested, however, does not present the correct view of the matter. The commissioner has the authority or power as the granting officer, but should not issue the patent unless the party is shown to be entitled to it; neither should a court give an erroneous judgment. But could the commissioner, it may be asked, issue a patent to any one whom he might fancy without a certificate and survey? Perhaps not; he probably would have no more authority to issue a patent without a certificate and survey of apparent validity upon inspection, than a court has to render a judgment without a petition.

But if a certificate and survey are presented to him, and he has acted upon them, it would seem that his decision, though erroneous, should be conclusive upon all parties except the state, or those who have some color of title to, or interest in, the land.” These views command our hearty assent.

They do not favor the extension of the doctrine which would hold a patent void as to parties who had no rights in the land at the time of its issuance, unless, after giving the holder the full benefit of the presumptions which arise “that every prerequisite has been performed,” it clearly appears that it was issued without authority or in violation of law. In our opinion no case has been cited, nor have we found any, which goes to the extent that we would have to go to hold the patent issued to Cartwright an absolute nullity because of the reservations.

At the date of appellants’ survey we hold that they were not authorized to disregard the patent, and treat the land as vacant. There are other grounds than those we have been considering upon which the judgment below may have been rendered, and upon which we are inclined to the opinion it should be affirmed. Without undertaking to do more, it is proposed to bring this opinion to a close by stating our conclusions, so far as it is deemed material to do so.

The Tanner survey, though within the limits of Peters’ colony, was made before the eastern boundary was designated on the ground; and in support of the judgment of the court, it may be assumed that the court found that it was honestly made in ignorance of the colony limits, and being near those limits should be supported. The evidence as to knowledge of the boundaries is conflicting, and the finding of the court on that point should not be disturbed. The Daniel Tanner certificate was not so defective as to affect the validity of a patent issued thereon. Deen v. Wills, 21 Tex., 642; Kimbro v.

Hamilton, 28 Tex., 560; Babb v. Carroll, 21 Tex., 765. It does not appear that the court erred in holding the land in controversy to be the same as that described in the Daniel Tanner field notes, or in holding the Tanner league to be identified. We see no error in the various rulings of the court admitting evidence complained of by appellants. But as the case was tried without a jury, and there was sufficient legal evidence to support the judgment, the admission of incompetent testimony would be no ground for reversal. Melton v. Cobb, 21 Tex., 539. The judgment is affirmed. Affirmed.

Chief Justice Moore being disqualified did not sit in this case. [Opinion delivered June 15, 1880.]