Sydeck v. Duran
| Decision Date | 25 January 1887 |
| Citation | 3 S.W. 264 |
| Parties | SYDECK and others <I>v.</I> DURAN and others. |
| Court | Texas Supreme Court |
George P. Finlay, for plaintiffs in error. Stayton & Kleberg, for defendants in error.
This was an action of trespass to try title brought by appellants, as heirs of Antonio Sydeck, against Juan Duran and M. L. Labosky to recover a league of land in Refugio county. The suit was originally instituted in the county in which the land is situated, but was subsequently transferred to the district court of Victoria county. Before the change of venue, the surviving widow and heirs of John Welder and the heirs of James Power appeared, and made themselves parties defendant, alleged that the original defendants were their tenants, and pleaded their respective titles. Appellants claimed under a grant issued to their ancestor, Antonio Sydeck, on the fourth day of August, 1832, by the alcalde of Goliad. The heirs of John Welder claimed a portion of the land sued for under a title extended to one Manuel Blanco on the twenty-ninth day of October, 1834, issued by the commissioner of Power & Hewitson's colony; and the other appellees, the heirs of James Power, set up title to the other portion of the premises in controversy under a grant of two and a half leagues of land, conceded to Power & Hewitson, on the twelfth of October, 1834, as a part of the premium lands to which they became entitled under their contract.
The cause was submitted to the judge in the court below without a jury, and the findings of his conclusions of fact and law appear in the record. There is but little controversy about the facts. We state such of them as we think necessary to be considered in the decision of this case. The land in controversy lies between the Guadalupe and the Nueces rivers, and is within the limits of the augmentation to Power & Hewitson's colony if it be within 10 leagues from the sea. On the twentieth day of April, 1831, Antonio Sydeck made application, on behalf of himself and a sister, as heirs of their deceased father, for the land. His application was favorably reported by the ayuntamiento, with a statement that the grant applied for lay without the littoral leagues. The order granting the application, dated July 27, 1831, directed that the commissioner of the colony to which the land belonged, or, in case it belonged to no colony, the first or only alcalde of the municipality, should put the applicant in possession, and extend the final title, which was accordingly done on the fourth of August, 1832, by the alcalde of Goliad. On the twenty-seventh day of October, 1834, Sydeck made application to the commissioner of Power & Hewitson's colony, stating that he was convinced that his previous grant was within the littoral leagues, and that the "judge" (meaning the alcalde) had no authority to make it, and prayed that the commissioner would issue to him "a formal title to land upon the same run" "according to the surveys recently made," etc. His application was favorably indorsed by one of the contractors, and a final title extended, all on the same day, to a league lying on the other side of the river from his original grant. On the twenty-ninth day of October, 1834, Manuel Blanco (who also seems to have been called Jose Manuel Blanco) made application to the commissioner of Power & Hewitson's colony for the league in controversy, describing it as "the land which was owned by Antonio Sydeck, and has been relinquished by him," and on the same day final title was issued to him for the land applied for.
The court below finds, as a matter of fact, that the land now sued for lies within the littoral leagues. The correctness of this finding is questioned by appellees on the ground that the evidence does not support it, but we need not decide the point. If not within the colony of Power & Hewitson, (which embraced the littoral league,) it was certainly very near its boundary. This is shown by the fact that it adjoins, if it be not in conflict with, a portion of the premium lands granted to those contractors. It is now settled law that, on account of the difficulty of establishing the line called for in Power & Hewitson's contract, to "run parallel with the coast," titles which have been fairly granted by the authorities cannot be disturbed by showing, after this long lapse of time, that they may be "two or three miles" within or without the true boundary. Hamilton v. Menifee, 11 Tex. 718; Ledyard v. Brown, 27 Tex. 393. It follows, we think, that the title extended by the alcalde of Goliad to Sydeck was good, although it should now be found to be within the littoral leagues, and very near the boundary of the colony; and that for the same reason that extended to Blanco was good, if the land be without and adjacent to that boundary, provided the league was vacant at the date of the latter grant.
The question, therefore, is as to the effect of Sydeck's declarations, contained in his application to the commissioner of the colony, and the title extended to him for another league of land in compliance with that application. It is contended, on behalf of appellants, that by the grant to Sydeck, dated August 4, 1832, he acquired the legal title to the land, and that it could only be divested by a conveyance, or by a forfeiture at the instance of the government through its proper authorities. The first of these propositions must be conceded. It is established by numerous decisions of this court. Swift v. Herrera, 9 Tex. 263; Jones v. Montes, 15 Tex. 351; Hancock v. McKinney, 7 Tex. 384; White v. Holliday, 11 Tex. 606; Hamilton v. Menifee, Id. 724. It is also held that a settler who has received the final title does not forfeit his right, or that of those who have purchased from him, by merely ceasing to occupy the land. As to the latter, they took the land charged with the performance of the conditions attached to grants by the colonization laws.
The restriction upon alienation, which was removed by the thirty-sixth article of the decree of March 26, 1834, was contained in articles 26 and 27 of the decree of March 24, 1825, and is as follows: ...
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