Day Land & Cattle Co. v. State

• Decision Date: 21 June 1887
• Citation: 4 S.W. 865
• Parties: DAY LAND & CATTLE CO. v. STATE.
• Court: Texas Supreme Court

Page 865

4 S.W. 865

DAY LAND & CATTLE CO. v. STATE.

Supreme Court of Texas.

June 21, 1887.

Appeal from district court, Travis county.

Anderson & Flint, and Walton, Hill & Walton, and West & McGown, for appellant. John D. Templeton and J. S. Hogg, Atty. Gen., for appellee.

STAYTON, J.

This action was brought by the state of Texas, through the attorney general and the district attorney of the judicial district in which Greer county is embraced. The purpose of the suit is to establish the right of the state to 144,640 acres of land, situated in Greer county, and to cancel the patents under which the appellant asserts title to the land. The land was located and patented by virtue of land certificates issued under the act of March 15, 1881, (Gen. Laws, 35,) which provided for the issuance of land certificates in favor of the surviving soldiers of the Texas revolution and others. It is claimed by the state that the several grants under which the appellant claims are invalid because all the land within the limits of Greer county was appropriated by the act of February 25, 1879, (Gen. Laws, 16,) to other purposes, and was therefore not subject to location by virtue of the certificates under which the appellant claims or any other. There are many questions raised in the case, and, without considering each separate assignment, these will be considered in the groups in which they are presented in the brief of counsel for appellant.

1. It is claimed that neither the attorney general nor the district attorney, in the absence of direction so to do from the legislature or the executive of the state, had power to institute and maintain this action. Their right and power to maintain the suit was denied by a sworn plea, as well as by a motion asking that those officers be required to show by what authority they acted. The motion was overruled, and the plea stricken out. Neither the constitution nor the general laws defining the powers and prescribing the duties of the attorney general, and of district attorneys, in terms empower either of those officers to institute and maintain a suit of this character; nor do we find any law, in force at the time this suit was brought, which directed them, or either of them, to institute it. Finding no express law which authorized either of those officers to institute and maintain the suit, it would be difficult to hold that either of them had the implied power resulting from the general grants of power or imposition of duties.

It may be that, in the exercise of the general powers conferred upon the governor of the state, as its chief executive officer, he would have the power to require the attorney general to institute, or to cause to be instituted, a suit of this character, when in his judgment the welfare of the state required it, even though the legislature had not so directed; but, in a government in which the duties of all officers, as well as their powers, are defined by written law, no power ought to be exercised for which warrant is not there found. The plea shows that a bill introduced in the senate during the sitting of the nineteenth legislature, which required the attorney general to institute such suits, was passed by that body; but that, upon reference to the judiciary committee of the house of representatives, an adverse report was made upon the bill by that committee, and from this the inference is sought to be drawn that the legislature did not intend that the attorney general, directly or through a district attorney, should have power to institute and maintain such a suit. There is force in this proposition; but the failure of the legislature to pass the bill may have resulted from the fact that the members of that body were of the opinion that, under the general grants of power to the attorney general, he might institute such suits without legislation expressly requiring him to do so.

As the law now stands, we deem it unnecessary to determine whether the attorney general or district attorney had power to institute this suit at the time it was brought; for, be that as it may, by recent legislation such power is not only conferred on that officer, but its exercise in the past has been ratified, and his power to maintain this suit recognized.

The act of April 1, 1887, (Gen. Laws, 101,) after providing for the cancellation of patents issued for lands situated in Greer county, located by virtue of "veteran" certificates, and for the issuance of certificates to the holders of such patents, declares "that nothing in this act shall be construed as requiring or authorizing the attorney general to dismiss any suit now pending for the cancellation of said patents, nor to prevent him from bringing other suits for such purposes." There we have a clear recognition by the legislature of the power of the attorney general to institute and maintain, in the name and on behalf of the state, this and like suits, and to institute others for the same purpose.

The state doubtless has the right, by suit, to protect any property right vested in it as fully as has any person; and this suit was brought in its name, and on its behalf, by persons claiming to act as its officers or agents. The act to which we have referred bears conclusive evidence that the legislature knew that this suit or similar suits were pending, and it must have been cognizant of all the facts attending the institution of such suits. This being true, if it be conceded that neither the attorney general nor the district attorney was empowered to institute the suit at the time this was done, nevertheless the state has ratified their act, and will be bound by the result as fully as though they had the power which they assumed to exercise. This ratification is retroactive, and the suit must stand as though the attorney general and district attorney had express authority to institute and maintain it. Story, Ag. 244-260; Whart. Ag. 77; Ancona v. Marks, 7 Hurl. & N. 686.

2. It is urged that the general and special demurrers to the petition should have been sustained, and that the petition does not state a cause of action. The main objections raised by the assignments relating to this matter are that the petition does not allege that the state was in possession of the land, and ousted by the defendant, nor that the state is entitled to the possession of the land, and the defendant a trespasser, and that the petition is not indorsed as the statute requires a petition in trespass to try title to be. There was no exception based on the fact that the petition was not indorsed as the statute requires petitions to be in actions of trespass to try title; and the answer of the defendant presents defenses applicable to that character of action, thus evidencing that the defendant was not misled as to the character of the action by the want of such an indorsement. Such an objection cannot be raised by a general demurrer, and, when presented here for the first time, cannot be considered. Bone v. Walters, 14 Tex. 567; Shannon v. Taylor, 16 Tex. 423; Wade v. Converse, 18 Tex. 234.

The petitioner alleges that the lands belong to the state; that they are claimed by the defendant, and gives the origin and nature of the claim thus asserted. It prays for general relief, and that the patents under which the defendant claims be canceled, and the cloud thereby placed on the state's title it asks to have removed. The first, second, and third requirements in a petition in trespass to try title are fully complied with. The petition states facts which, if the grants through which the defendant claims are invalid, entitles the state to the possession, and that there was not an averment in terms that the state was so entitled is a matter of no importance. The petition does not state that the defendant unlawfully entered upon and dispossessed the state of the premises, and that the defendant withholds the possession; but there is no exception which questions the sufficiency of the petition on the ground that no such averments are made. The eighth and ninth exceptions reach no such question. While the statute seems to contemplate that in an action of trespass to try title such averments must be made, it is certainly true that it is not necessary to allege any fact which it is not necessary to prove. It is not necessary to prove that the owner of land ever was in actual possession of it, or that the defendant was in possession, in order to sustain even an action of trespass to try title; and it is therefore unnecessary to allege these things unless some relief be sought against the defendant based on the fact that he has been in possession. Under the former law it was held that a plaintiff in an action of trespass to try title must show that the defendant was in possession; but under the present law the action may be maintained against a defendant who never has occupied the premises, if he claims title thereto. Rev. St. art. 4790.

Whether, as the petition in this case was framed, the action is to be deemed technically an action of trespass to try title, in which the respective parties would be entitled to all the statutory rights to which parties to such actions are entitled, we need not determine, for it is too clear that the petition states facts which empowered the court to inquire and determine whether the state was the owner of the land as it claimed to be.

It is urged, if this be treated as a suit to remove cloud, that the petition is not sufficient, in that there is no averment that the state was in possession of the lands. The rule here invoked has doubtless been recognized by many courts exercising only an equitable jurisdiction; but it may be doubted if it can be said ever to have been a rule well established even in such tribunals. When recognized, it was upon the ground that a court of equity would refuse to act when the party seeking equitable relief had a full and adequate remedy at law. Whatever the rule may be elsewhere, the rule...