Bowmer v. Hicks

• Decision Date: 01 January 1858
• Parties: B. D. BOWMER AND OTHERS v. MARY HICKS AND OTHERS.
• Court: Texas Supreme Court

22 Tex. 155

B. D. BOWMER AND OTHERS

v.MARY HICKS AND OTHERS.

Supreme Court of Texas.

1858.

The court charged the jury, “If, at the date of the issuance of a title” (in 1835, by the commissioner of Robertson's colony, to a party, as a colonist in said colony, who claimed to be the head of a family), “he was not domiciliated in Texas, but was a citizen of and domiciliated in the United States of America, then the title issued to him by the commissioner was from the beginning an absolute nullity, conferring no rights on the grantee, nor those who claim under him;” and it being evident that the verdict was controlled by this charge: Held, that the charge was erroneous, and the judgment should be reversed.

This precise question was decided in the case of Johnson v. Smith, 21 Tex., where it was held, that evidence could not be admitted to prove that the grantee had not brought his family to the country, and had not, in fact, become domiciled here, for the purpose of showing that he was not entitled to the grant, or had committed a fraud in obtaining it; that the original validity of a grant, regularly issued by competent authority, could not be thus impeached. 26 Tex. 325;28 Tex. 134.

In the early cases of Holliman v. Peebles, 1 Tex. 673, and Horton v. Brown, 2 Id. 78; and subsequently, in Yates v. Iams, 10 Id. 168, it was decided, that under the colonization laws, and particularly the 15th article of the national law of the 18th of August, 1824, and the 30th article of the law of the state, of the 24th of March, 1825, the effect of leaving the country, and becoming domiciled in a foreign government, after having obtained a grant, was to defeat the estate of the grantee, and restore the land to the mass of vacant public domain; and that it might be regranted, without judicial inquiry to ascertain the fact of abandonment.

But this consequence does not attach to any other act of the grantee, by which he forfeits the title to his land, or to the non-performance of conditions subsequent, annexed to the grant. In these cases it has been held, that the forfeiture must be ascertained by judicial inquiry, in some mode to be provided by law, in order to divest the title, before the state can resume the grant, or otherwise appropriate the land. 21 Tex. 722;28 Tex. 134.

APPEAL from Williamson. Tried below before the Hon. Nat. M. Burford. Suit by appellees, Mary Hicks and others, as heirs of Milton Hicks, deceased, for one league of land, located and surveyed on the 15th of April, 1849, by virtue of the head right certificate of the said Milton Hicks, deceased; and also to remove a cloud from their title, occasioned by the wrongful claim which the appellants set up to the said land, under a title issued by William H. Steele, commissioner, to Elisha D. Harmon, as a colonist in Robertson's colony, on the 7th of November, 1835, and which appellees charged was null and void from the beginning.

The appellants claimed under said grant to Harmon. The jury found for the appellees, “the right to recover the land;” and also, “that the grant to Elisha D. Harmon, was from the beginning void.”

Fisk and Bowers, for appellants.

I. A. & G. W. Paschal, and Phil. Claiborne, for appellees. We understand these two propositions to be distinct, and to rest upon independent provisions of law.

1. If a party obtained a title to lands, under the colonization laws, being at the time domiciliated in a foreign country, the title was simply a nullity from the beginning, as being against the whole policy of the colonization laws; and that nullity was thus declared in the 16th article of the national colonization decree: “No person, who by virtue of this law, acquires a title to lands, shall hold them if he is domiciliated out of the limits of the republic.”

The same principle is clearly maintained in Holliman v. Peebles, 1 Tex. 673;Horton v. Brown, 2 Id. 78;Hardy v. De Leon, 5 Id. 211.

2. The second proposition rests upon what the common law writers denominate a limitation in law. 2 Black. Com. 155. That is, the grants to colonists were made with the limitation, in the law itself, that if the colonist, legally entitled at the time, received a grant, and afterwards went to reside in a foreign country, without having first disposed of his land, (which he could not do under six years, until after the decree of 1834,) the land simply reverted to the government; or, in other words, became entirely vacant, without the necessity of any finding, in order to forfeit the land, or to reincorporate it into the public domain. Laws of C. and Texas, decree No. 190, art. 33; decree No. 16, art. 30; Holliman v. Peebles, 1 Tex. 673;Brown v. Horton, 2 Id. 78;Yates v. Iams, 10 Id. 168, already cited. See, also, the clear case of McKinney v. Saviego, 18 How. 235.

Now, this whole class of cases comes precisely within the principle of a limitation in law, as contradistinguished from a condition in a deed, thus defined by Blackstone:

“A distinction is however made between a condition in deed and a limitation, which Littleton denominates also a condition in law. For when an estate is so expressly confined, and limited, by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made £500, and the like. In such case, the estate determines, as soon as the contingency happens (when he ceases to be parson, marries a wife, or has received the £>>>>500) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed, (as if granted expressly upon condition to be void upon the payment of £40 by the grantor, or so that the grantee continues unmarried, or provided he goes to York, etc.), the law permits it to endure beyond the time when such contingency happens, unless the grantor, or his heir, or assigns, take advantage of a breach of the condition, and make either an entry or a claim in order to avoid the estate. Yet, though strict words of condition be used in the creation of the estate, if, on breach of the condition, the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives (as if an estate be granted by A. to B., on condition that within two years B. intermarry with C., and on failure thereof, then to D. and his heirs), this the law construes to be a limitation, and not a condition: because, if it were a condition, then, upon the breach thereof, only A. or his representatives could avoid the estate by entry, and so D.'s remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B. determines, and that of D. commences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will, devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise, no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition.”

The failure to take this simple distinction, has caused the counsel of the defendant to confound the principle with Hancock v. McKinney, 7 Tex. 384;Chambers v. Jenkins...