Cannon's Adm'r v. Vaughan
| Decision Date | 01 January 1854 |
| Parties | CANNON'S ADM'R v. VAUGHAN. |
| Court | Texas Supreme Court |
See this case as to construction of statutes.
The conditions of residence, &c., for three years, and restraint of alienation before the issue of the unconditional certificate, attached, under the Act of January 4th, 1839, to conditional certificates issued to singlemen, as well as to those issued to heads of families under that Act.
Appeal from Anderson.
Donley & Anderson, for appellant. We have no doubt that appellee will contend that this cause is settled by the decision of Turner v. Hart, 10 Tex. R., 438. But, upon an examination of the Act of January 4th, 1839, (Hart. Dig., Art. 1924,) we submit that this case is entirely different, and that there was no restriction, either by proviso or otherwise, of an alienation of conditional certificates by single men, and that the proviso in regard to heads of families does not extend to single men, or certificates of 320 acres.
We submit that if there was intended by the framers of this statute a proviso in regard to single men, that proviso should have been clearly and fully expressed. “The office of a proviso is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation.” (Minis v. United States, 15 Peters, U. S. R., 445.) The object of the proviso in the above act, it is submitted, was intended and can only be construed to restrain that portion of the statute giving lands to heads of families.
G. F. Moore, for appellee.
This is a suit brought by appellee to recover a tract of land, the headright of one Jackson B. Nash, who, as a single man, obtained a conditional certificate for three hundred and twenty acres, from the Board of Land Commissioners of Houston county, on the 24th December, 1839, under the Act of the 4th of January, 1839, which was, on the 8th day of March, 1840, located on the land in controversy. On the second of December, 1850, the unconditional certificate was issued to said Nash by the Board of Land Commissioners of Anderson county, and on the first of July, 1851, the land was patented to the said Nash. Both of the parties litigant claimed under Nash; the appellant under deed executed to his intestate before the issuance of the unconditional certificate, viz: on the 2d July, 1842, and the appellee under conveyance executed from Nash to himself on the 3d July, 1852, having no knowledge of the adverse claim, except by construction of law from the record of the deed to Cannon.
Neither party having been in possession, the cause was tried upon the legal force of the two titles, without any equities being claimed in support of the first title.
The judgment was for the appellee, or, in other words, against the validity of the title claimed by the appellant under the conveyance executed before the unconditional certificate had issued, and this judgment is objected to on the ground that, as Nash was a single man, there was no restriction imposed by the Act of 1839, or any other law, upon the sale of his conditional certificate, and that consequently a title under such sale is valid and binding. To understand the ground assumed by appellant, it will be necessary to recapitulate the substance of the first Section of the Act of the 4th of January, 1839, under which this certificate issued, and which is to the effect that every person emigrating to the Republic between the first of October, 1837, and of January, 1840, who is the head of a family, and who actually resides within the government with his or her family, shall be entitled to a conditional grant of six hundred and forty acres of land. The conditions of the grant being that both grantee and his or her family shall reside permanently within the Republic, and perform all duties required of other citizens, for the term of three years, after which time he shall receive an unconditional deed for said grant of land. Provided that no sale of said claim to land shall be valid in law and binding upon the person selling the same, until an unconditional deed shall be obtained by the grantee for the said land; and in no case whatever shall a grant of that description be made, unless on satisfactory proof that all the provisions and conditions of the law have been complied with, and that all single male persons of the age of seventeen and upwards, who shall have emigrated, or may emigrate to the Republic during the same period, shall be entitled to three hundred and twenty acres of land.
It will be perceived that the conditions and restrictions imposed upon the grants to heads of families...
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...is also the "established rule" of in pari materia , meaning "[o]n the same subject; relating to the same matter." Cannon's Adm'r v. Vaughan , 12 Tex. 399, 402 (1854) ; In pari materia , BLACK'S LAW DICTIONARY (11th ed. 2019). Under this cannon of construction, "[A]ll acts in pari materia ar......
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...Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774; First Texas State Ins. Co. v. Smalley, 111 Tex. 68, 228 S.W. 550; Cannon's Administrator v. Vaughan, 12 Tex. 399; Ex Parte Miller, 85 Tex.Cr.R. 263, 211 S.W. With this principle before us it becomes evident that the court and the Board would ......
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