Bryan v. Crump

• Decision Date: 15 March 1881
• Docket Number: Case No. 134.
• Citation: 55 Tex. 1
• Parties: W. J. BRYAN v. W. E. CRUMP.
• Court: Texas Supreme Court

55 Tex. 1

W. J. BRYAN

v.W. E. CRUMP.¹

Case No. 134.

Supreme Court of Texas.

Mar. 15, 1881.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

Suit by Bryan, appellant, to try title to a labor of land in Austin county, on the west side of the Brazos river, above the town of San Felipe, and commonly known as labor No. 4, the same being above the mouth of Mill creek, about nine and one-half miles southeast of Belleville. The land was particularly described by metes and bounds, and the suit was filed on the 29th day of March, 1873. The defendant answered by a plea of “not guilty,” and the plea of the statute of limitations of three years. The facts were agreed upon by the parties, as follows: That the plaintiff claimed the land in controversy as one of the heirs at law of Emily M. Perry, and that she was a sister, and one of the principal devisees of the last will of Stephen F. Austin, and that she derived title to the land as such devisee from said Austin's estate.

2. That Stephen F. Austin died in Brazoria county, Texas, a short time prior to the 21st of March, 1837, leaving a will, which nominated his brother-in-law, James F. Perry, as his executor.

That on the 21st day of March, 1837, said James F. Perry caused said will to be duly probated in the probate court of Brazoria county, Texas, and became the executor thereof.

3. That on the 8th day of February, 1838, said James F. Perry, as executor of Austin's estate, filed a suit in the district court of Harrisburg county, Texas, against Sam Houston, as the president of the republic of Texas, to establish a claim against the republic of Texas for premium lands due said Stephen F. Austin at the time of his decease as empresario, upon colonization contracts made and entered into by said Austin with the government of the state of Coahuila and Texas, and setting forth that Austin, in his life time, had selected certain lands in part satisfaction of his claim, among which lands so selected was the labor No. 4, upon the west side of the Brazos river, above the town of San Felipe, in Austin county, it being the land in controversy. That in said suit there was a prayer that the title to the lands selected be confirmed in the estate of Austin, and also a prayer for an injunction against the defendant, Sam Houston, and a further injunction against John P. Borden, the then commissioner of the general land office, prohibiting and restraining them from making title to other parties to any of the lands selected as premium lands by Austin, and also a further injunction against the county surveyors of the different counties where the land so selected was situated, from entering upon, surveying, or in any manner interfering with, said lands.

This injunction was granted, and on the 13th day of February, 1838, a writ of injunction was issued against Sam Houston, president, and John P. Borden, commissioner of the general land office, enjoining them not to issue or grant titles to any of the lands selected and named in the petition, among which was said labor No. 4 in controversy in this suit.

This writ of injunction was executed on the 20th day of February, 1838, by the sheriff of Harrisburg county.

4. That on the 8th day of May, 1840, this suit was transferred to the district court of Travis county, Texas, on account of the change of the seat of government to that county, and on the 13th of October, 1846, judgment was rendered in that court upon said cause, in favor of the plaintiff Perry, establishing the title in Austin's estate to all the lands selected and set forth in the petition, including said labor No. 4 in controversy in this suit, and divesting all the right and title of the state of Texas in and to said lands, and vesting the same in the heirs and representatives of Stephen F. Austin, deceased, and perpetuating the injunction theretofore granted, restraining all persons from entering or surveying any of said lands, and the commissioner of the general land office from issuing patents on the same.

5. That said cause was appealed to the supreme court, the same being the case of Sam Houston, President, Appellant, v. James F. Perry, Executor of Stephen F. Austin, Appellee, being No. 445 on the docket of the supreme court. That on the 10th day of April, 1848, the supreme court finally decided that cause, affirming the judgment of the district court so far as the same pertained to labor No. 4 involved in this suit, and also affirming as to a portion of the other lands set forth in the district court judgment, perpetuating the injunction granted by the court below, and also by decree divesting all the title of the state of Texas in said lands mentioned, including said labor No. 4, and vesting the same in the appellee, as executor of Stephen F. Austin, deceased, which said cause is reported in 2d Texas Reports, pp. 37 et seq., entitled Houston v. Perry, Ex'r of Austin.

6. It is further agreed that Joel Bryant, the plaintiff in this suit, holds the land in controversy by regular line of descent, cast upon him from the estate of Stephen F. Austin, deceased, by virtue of heirship and partition of said estate.

7. It is further agreed that defendant holds and claims said land by a regular chain of title and mesne conveyances from and under a patent, issued by the state of Texas for the land in controversy to the heirs of Patrick Magee, deceased, issued on the 15th day of October, A. D. 1851, by virtue of conditional certificate No. 141, issued by the board of land commissioners of Harrisburg county, on the 16th day of March, A. D. 1853; upon which, unconditional certificate No. 564 was issued by the board of Harris county on the 5th day of January, A. D. 1846.

8. It is further conceded that the survey, by virtue of which said patent issued, was made on the 11th and 12th days of July, A. D. 1851, by D. Charles C. Amthor, the then district surveyor of Austin county, and duly certified to by him on the 14th day of July, A. D. 1851.

9. It is further conceded that the defendant William E. Crump purchased the land in controversy on the 17th day of December, A. D. 1859, in good faith and for a full and adequate valuable consideration, paid at the time of purchase, and without notice of plaintiff's claim, unless the case of Perry, Ex'r, v. Sam Houston, President, above referred to, and the proceedings thereunder, be considered notice.

10. It is further conceded that the defendant, at the time of his purchase, was the owner of a plantation adjoining the land in controversy, and that immediately after his purchase he began to exercise acts of ownership openly and notoriously, by cutting rails, wood and timber from off the land in controversy, for the use of the plantation adjoining, and claimed the same as his own property, openly and notoriously; that none of said land has been in cultivation or under fence; that no house or other buildings were placed upon said land until the fall or winter of 1866 and 1867, nor were there any other acts of possession by Crump, or those under whom he holds, prior to that time, except the cutting of wood, timber and rails, as above stated.

11. It is further conceded that the defendant has regularly paid the taxes on the land, and that this suit was filed on the 29th day of March, A. D. 1873.

The court charged the jury substantially as follows, to wit: That the better title to the labor No. 4 in controversy is in the plaintiff, and, in a simple contest upon mere title, the plaintiff would be bound to succeed; but if the jury believe from the evidence that Wm. E. Crump was a purchaser in good faith, for a valuable consideration, without notice of the superior title in equity of the plaintiff, and that he took possession of the land by any public, visible act, manifesting to the world that he held the same adversely, such as the building of a house, the cutting and using of timber, etc., and has continued such adverse claim and possession for more than three years before the commencement of this suit, with a regular chain of transfer from or under the sovereignty of the soil down to himself, he is protected by the statute of limitation, and the plaintiff cannot recover.

The decision of the supreme court in the case of Stephen F. Austin, Executor, v. Sam Houston, the president of the republic, settled the paramount right of S. F. Austin's estate to claim the specific land set out in that decision. But to guard and protect such paramount right against subsequent innocent purchasers for a valuable consideration without notice, the claimants under Stephen F. Austin were guilty of laches or negligence in not presenting the judgment of the court to the president and commissioner of the republic, and demanding a patent or the legal title, so as to shield all innocent purchasers without notice, and thus enabling the commissioner of the land office, by such notification, to refrain from issuing other patents for the same land to other persons.

Such presentation of the judgment to the commissioner of the land office, and the issuance of the patent thereupon, would have been notice to all the world, because that office was the fountain of all the land titles of the state.

Verdict and judgment for the defendant.

Motion for new trial on the following grounds, viz.: Because the court erred in the charge to the jury; and because the verdict was contrary to the law and evidence. Motion overruled.

The appellant assigned the following grounds of error, viz.:

1. The court erred in the charge to the jury upon the question of the statute of limitations.

2. The court erred in denouncing the plaintiff and those under whom he claims as guilty of laches or negligence.

3. The court erred in overruling plaintiff's motion for a new trial, based upon the ground of errors in the charge of the court, and the additional ground that the verdict was contrary to the law and evidence of the case.

A. Chesley, for appellant.¹

WALKER, COMMISSIONER.

On February...