109 U.S. 297 (1883), Walsh v. Preston
| Date | 19 November 1883 |
| Citation | 3 S.Ct. 245,27 L.Ed. 940,109 U.S. 297 |
| Docket Number | . |
| Parties | WALSH, Com'r, etc., v. PRESTON. [1] PRESTON v. WALSH, Com'r, etc.1 |
| Court | U.S. Supreme Court |
Page 297
COUNSEL
[3 S.Ct. 245] A. J. Peeler, for Walsh, Com'r.
Wm. Preston, John Mason Brown, and Geo. M. Davie, for Preston.
HARLAN, J., dissenting.
Mr. Justice FILELD and myself differ from the court in our view of the facts of this case, and therefore dissent from its judgment.
The circuit court found that the complainant had satisfactorily established the contract between the republic of Texas, through its president, and Charles Fenton Mercer and his associates, as alleged in the bill and amended bill; the entrance of Mercer upon the duties devolving upon him under the contract; the organization of the Texas Association; the appointment of surveyors and colonization agents; the running of lines and surveys; the introduction of 119 families within the first year of the grant; the making of the survey of the boundary limits of the colony grant by April 1, 1845; the settlement of 256 families within the limits of the colony prior to October 25, 1848; the appointment of Mercer as chief agent and trustee for the association; the subsequent oppointment of Hancock as chief agent; Hancock's death and the appointment of Preston, ratified by the association, as chief agent; the entrance of those persons upon the performance of their duties as agents of the association, and the activity in furthering the
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objects and interests of the colony and the association; of the colony and the association; the employment of counsel; the expenditure of money; and the persistent applications made to the political departments of the state of Texas for relief. It further found that Mercer, as agent, made reports to the government of Texas, as required by the contract up to and for the year 1847; that Mercer is dead long since; and that all his papers and documents, among which were copies of his correspondence and reports in relation to the Mrcer colony, have been lost and destroyed.
The evidence adduced by the [3 S.Ct. 246] been subjected by this court to the same rules of strictness and technicality which would be applied to an indictment for a criminal offense. We are of opinion that the circuit court did not misapprehend the effect of the testimony, and that a case is made entitling complainant substantially to the relief granted in the decree below. By the contract between Mercer and republic of Texas the latter agreed to convey to the former and his associates, or their legal representatives, one section of 640 acres of land, or two half sections of 320 acres, for each family which they should introduce and settle upon the lands set apart for colonization by Mercer and his associates, each alternate section or half section of 640 or 320 acres being reserved to the republic, to be purchased or not by by Mercer and his associates on certain stipulated terms. It was also agreed that a perfect title should be made in the usual mode and form to Mercer and his associates, or their legal representatives, for each section, half section, or other fractional part of a section to which they become entitled under the contract, and that the same should be conveyed to the parties as soon and whenever they should exhibit to the commissioner of the general land-office of the republic, or other proper officer thereof, in the manner and form prescribed in the contract, the evidence of having surveyed the portion of land for which such conveyance was desired, and that there were comfortable small houses or cabins erected thereon, and families residing therein who had been settled thereon by Mercer and his associates or their legal representatives.
The republic of Texas further agreed that Mercer and his
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associates should eceive from it, as further compensation for their services and for their labor and expense in introducing and settling the families provided for in the contract, a premium of 10 sections of 640 acres land for every hundred families introduced for every hundred families inrodouced and settled as required; further, that upon Mercer and his associates paying into the public treasury $12, and obtaining the treasurer's or other proper officer's receipt for that sum paid into the same, and also of the delivery for cancelment of any bonds, promissory notes, or other audited liabilities of the republic to the amount of $640, they or their legal representatives should be entitled to demand and should receive from the government a full and absolute title to 640 acres of the reserved alternate sections. The right to purchase the alternate sections was, however, made to depend on certain conditions, which, in the view taken of the case by the court, need not be here set out.
It was provided in the contract that whenever Mercer and his associates, or their authorized agent or legal representative,----
'shall exhibit to the commissioner of the general land-office of the republic a certificate, under oath, subscribed by two witnesses, and certified by some person qualified by the laws of Texas to administer an oath, that the said parties of the second part, or their legal small comfortable house or cabin, or small comfortable house or cabin, or any number of such houses or cabins, on [3 S.Ct. 247] the parcel or parcels of land which they are obligated by this contract to convey to each family, or the several families respectively, and have actually settled a family or several families respectively therein, they shall immediately receive thereafter a full and absolute conveyance from the government of the republic for as many sections of land of 640 acres, or half sections, or other fractional parts of sections equal in amount to 640 acres, as there shall be families certified to in such certificate or certificates.'
It was further provided that the unlocated lands included in the boundaries described in the contract should remain and be held by the government of the republic, for the purposes set forth in the contract, until the end of five years from its date, and 'shall be considered as set apart, exclusively of all future
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claims, to be colonized in the manner aforesaid, by and for the benefit of the party of the second part and of this republic.' It was also stipulated that unless Mercer and his associates, or their legal representatives,----
'shall, prior to the first day of May, 1845, have introduced and settled on the land above mentioned, according to the tenor of this contract, one hundred families, all right and title of the party of the second part, or their legal representatives, to proceed further in the execution of this contract shall cease and determine from the moment of such default; but such default shall not work or operate retrospectively, but leave to the party of the second part, and all persons claiming under them, whatever right, title, or interest they may have acquired from the action of the party of the second part and their legal representatives prior to such default, to the same extent as if no such default or failure had occurred; and in like manner, and under like qualifications, the right of the said party to proceed further under this contract shall cease and determine: provided, 250 families be not introduced and settled by them, in manner...
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