Blount v. Webster

• Decision Date: 01 January 1856
• Citation: 16 Tex. 616
• Parties: STEPHEN W. BLOUNT v. JOHN J. WEBSTER.
• Court: Texas Supreme Court

16 Tex. 616

STEPHEN W. BLOUNT

v.JOHN J. WEBSTER.

Supreme Court of Texas.

1856.

The titles extended by Juan Antonio Padillo, Jose Francisco Medero and Geo. W. Smyth, special commissioners of the state of Coahuila and Texas, appointed under the 32d article of the law of the 26th of March, 1834, granting land and providing for issuing titles to the inhabitants of the frontier of Nacogdoches and those residing east of Austin's colonies, held to be valid as well within the littoral and border leagues as without, and without regard as to whether the settlers lived on the particular land granted or not. [[[[[[14 Tex. 146;21 Tex. 722.]

Appeal from Harrison. Heard before the Hon. Lemuel Dale Evans.

Special court composed of Hemphill, chief justice, and James H. Rogers, special judge.

Henderson & Jones and T. J. Jennings, for appellant.

W. P. Hill, for appellee, cited The Republic v. Thorn, 3 Tex. 499;Edwards v. Davis, Id. 321;Goode v. McQueen's Heirs, Id. 241.

J. W. Ardrey, also for appellee.

ROGERS, S. J.

This suit was brought by the appellant to try title to a league and labor of land, conveyed to him by one Wilson Ewing, and granted to Ewing on the 29th of October, 1835, by George W. Smyth, special commissioner of the state of Coahuila and Texas, appointed under the 32d article of the law of 26th of March, 1834, granting land and providing for issuing titles to the inhabitants of the frontier of Nacogdoches and those residing east of Austin's colonies.

The petition alleges that the land lay within the twenty leagues bordering on the United States, and that Wilson Ewing resided within the said border leagues, on the frontier of Nacogdoches, at the date of the law of 1834, and at the date of the grant to him, and continued to reside there until long after the year 1841, and that the commissioner, George W. Smyth, had full power and authority to issue the grant in question.

To this suit the defendant excepted: “1st. That the land described in said petition is situated within the twenty frontier leagues bordering on the United States of the North, and not subject to be located, surveyed and granted on the 29th day of October, 1835, without the assent of the executive of the national government of Mexico; and 2d. It is not averred in said petition that the assent of the national government was obtained by Wilson Ewing, or any other person for him, to the location, survey and grant of said land.”

These exceptions were sustained by the court below, and it ordered that the plaintiff take nothing by his suit, on which he has appealed to this court.

It is well settled, as a general rule, that the assent of the executive of the Mexican confederacy was necessary to the validity of grants of land, like the one in question, lying in the border leagues. And it is also the well settled general rule, that this assent must be averred in the petition, and cannot be proven unless so averred. (See Goode v. McQueen's Heirs and the Republic v. Thorn, 3 Tex. pp. 241, 499.) But whether in suits like the present, admitting the necessity of the assent of the federal executive, it was necessary to aver more than is averred in the petition, that the commissioner had full power and authority to make the grant, is, under the latter authority, not so certain. It is there said (page 510) that, “in suits of this character, that is, between individuals on claims by purchase, if there be only the general allegation that the title emanated from the proper authorities of the state, this would be sufficient to support the action, and authorize the admission of evidence to show the title had been issued with the previous assent of the federal authority.”

However, as this case has been argued on the grounds of the necessity of the assent of the federal executive of Mexico to titles under the 32d article of the law of Coahuila and Texas, of the 26th of March, 1834, and how far, as known to the court, from law and history, this assent was given; and what are the meaning and extent of this article of the law; and this case has been brought before us for our decision on these points, we will meet the questions presented to us.

As has been said, it is the well settled general rule that the assent of the federal executive of Mexico was necessary to the validity of grants of land lying in the twenty leagues bordering on the United States of the North. On the revolution of Mexico, by which she established her independence of Spain, all the ungranted or public land within the established limits of Mexico became the public property of the newly born state. Subsequently the Mexican nation resolved to divide themselves into several sovereign states, to be united together in a confederacy; and the constituent congress of Mexico passed an act to this effect on the 19th of November, 1823; but the act was not published and did not go into effect until the 4th of October, 1824. In the meantime, between the passage and the publication of this act, the government of Mexico, on the 18th of August, 1824, passed a general law for the colonization of the public lands lying within the limits of the contemplated states; and by virtue and operation of this law, the public lands lying within the said states became severally and respectively the property of the states in which they lay.

But this gift of the public lands was coupled with certain limitations and restrictions, among which was the provision of the 4th article of the law of the 18th of August, that “the territories comprehended within twenty leagues of the limits of any foreign nation, or the ten coast leagues, shall not be colonized without the previous approbation of the general supreme executive power.” This restriction to the gift of the public lands, the state of Coahuila and Texas, on accepting the gift assented to, and until a late date, if not always, respected and observed. Thus in the preamble of their first act on the subject of colonization, decree No. 16, passed on the 24th of March, 1825, the congress of Coahuila and Texas profess to act “in conformity to” “the basis established by decree No. 72 of the general congress,” the law of the 18th of August, 1824. And the 7th article of the decree No. 16 enjoins on the executive of the state, in granting lands, the observance of the restriction of the decree No. 72. And the instructions of the executive of the state, settled on the 4th of September, 1827, for the government of commissioners for the distribution of lands to new colonists, who should present themselves to settle in the state according to the colonization law of March 24, 1825, contain the same injunction. And when, on the 28th of April, 1832, the congress of Coahuila and Texas, by decree No. 190, repealed the law of the 24th of March, 1825, and substituted a new law in its place, they still observed and enjoined this restriction. But in a little more than two years after this decree, to wit, on the 24th of March, 1834, the congress of the state of Coahuila and Texas, by decree No. 272, repealed the decree No. 190, and likewise all instructions to commissioners opposed to the provisions of this repealing act, and while providing for a new mode of disposing of all the public lands, to wit, by public auction, they make no mention of the requisite of the previous assent of the general supreme executive power to the sale of lands, under the general provisions of the law, lying within the border and coast leagues. But whether it meant in such sales to disregard the restriction on these leagues contained in the national colonization law, we do not mean to say, nor is it important, for according to our belief no sales were ever made under the general provisions of the law, these provisions having soon after its passage, to wit, on the 2d of May in the same year, by decree No. 287 of the congress of Coahuila and Texas, been suspended, and never afterwards put in force. But there is a special provision in the law of 1834 which was never suspended or repealed, but which was carried into operation, and under which a great many titles were issued. This provision is contained in the 32d article of the law, and is as follows: “To the inhabitants of the frontier of Nacogdoches, and those residing east of Austin's colonies, titles shall be issued to the lands they may occupy according to the 16th article of the colonization law of the 26th of March, 1824, and the resolutions of the general government of April and August, 1828, and the executive shall appoint one or two commissioners for that object, who, without any delay, shall execute the same at the expense of the persons interested, and the titles heretofore legally issued are hereby confirmed.” This translation of the 32d article is taken from the very able “statement of the commissioner of the general land office,” written by the Hon. George W. Smyth (which statement we have read with much instruction), and differs from the translation in the printed copy of the laws of Coahuila and Texas in this: the latter employs the term “occupy” instead of “may occupy,” as employed in the above translation. On this point the author of the statement says (page 44-5): “I am conscious that this translation is different from the published decrees, but that the translation of this expression in that collection is erroneous, needs but a slight examination to determine. If the translation ‘they occupy’ were correct, the correspondent verb in the Spanish should be ocupan, in the indicative mood; but the verb used in this article is ‘ ocupen'--‘they may occupy,’ in the subjunctive mood.”

This article evidently embraced lands lying within the border leagues, and it is equally evident that no further assent of the general supreme executive power was made necessary to the grants under this article than what was understood to have been already given; at least this was the obvious meaning of the article, and the one which was attached to it by the officers...