Dikes v. Miller

• Decision Date: 01 January 1859
• Citation: 24 Tex. 417
• Parties: M. G. DIKES v. ALLSEY S. MILLER AND ANOTHER.
• Court: Texas Supreme Court

24 Tex. 417

M. G. DIKES

v.ALLSEY S. MILLER AND ANOTHER.

Supreme Court of Texas.

1859.

A disclaimer by a defendant(who has previously pleaded to the merits), does not release him from costs, theretofore incurred, and damages for the alleged trespass.

A defendant, who has filed a disclaimer, but has not been dismissed from the suit, is not a competent witness for his co-defendant.

It is the fact of interest, and not the opinion of the witness as to his interest that disqualifies him.

Oral testimony is not admissible, to prove the terms of a tenancy, created by written lease; testimony respecting its contents, when the existence of the lease is disclosed, ought to be excluded.

A patent issued to the defendant, is not evidence that he owned the certificate upon which it issued, or had a title, or color of title to the land, anterior to its date.

Delivery is essential, in order to pass a title by deed of bargain and sale, or release; and an acceptance by the grantee, either express or implied, is necessary to a complete delivery.

A party cannot be made a grantee against his will, but a deed may operate by a presumed assent, until a dissent or disclaimer appears.

Quœre?Will a deed of relinquishment, by a grantee, to the state, deposited in the general land office, be effectual to revest the title of the land in the government, on the ground of a presumed assent? or if not, may it not be effectual, as evidence of an abandonment of the title by the owner, and that it passed to the state, as in the nature of a derelict?

Easements, incorporeal rights annexed to land, incipient titles, as by a location or survey, and equitable titles not perfected into a grant, or vested by a deed, may be lost by abandonment.

It would seem, that there is nothing in principle, to prevent the owner from abandoning his property in land, provided the intention to do so be evidenced by an act or deed, legally sufficient to operate a divestiture of his title.

The grantee in a quit-claim deed, it is said, takes the risk of a title, unless there be fraud.

APPEAL from Gonzales.Tried below before the Hon. Fielding Jones.

This was an action of trespass to try title, commenced on the 13th October, 1849, by M. G. Dikes, the appellant, against Allsey S. Miller and Andrew Neill.

The plaintiff claimed title under a grant of one-fourth of a league of land, made by the commissioner of De Witt's colony, on the 1st day of May, 1831, to Byron Wickson, and conveyed on the 10th of September, 1844, by the said Wickson, by a quit-claim deed, to William W. Arrington, and afterwards by Arrington to the plaintiff; but the said Wickson had, previously to the execution of the deed under which the plaintiff claimed, executed, on the 3d of June, 1843, to “the republic of Texas,” a release of the said fourth of a league of land; reciting as the consideration moving him thereto, that subsequently to the grant of the said fourth of a league of land to him, he had obtained a title from “the government of Mexico for one league of land, as his headright, and the laws of Mexico and the republic of Texas, entitling him to but one headright, he therefore relinquished,” etc., said fourth of a league; and this deed of relinquishment was filed in the general land office at the date it was executed by Wickson.

On the 18th of April, 1850, the defendants, Miller and Neill, filed a joint answer in which they pleaded, 1st, not guilty: 2d, That the title under which the plaintiff claimed had been relinquished by the original grantee, Wickson, to the government, and that they were entitled to the land by virtue of a location made upon it on the 25th of June, 1843, and a patent issued to the defendant, Miller, by virtue of the said location, and subsequent survey made on the 25th of July, 1848: and 3d, The statute of limitations of three and five years.

On the 27th of April, 1854, and on the 7th of April, 1857, the defendants amended their answer, alleging more fully and clearly the matters of defense presented in their original answer.On the 27th of October, 1857, the defendant, Neill, filed a disclaimer of all interest, right, title or claim, in and to the land sued for; but the record did not disclose that any action was taken upon it.

On the trial the defendants offered in evidence a copy of an application made on the 21st of June, 1843, by William L. Hunter to the surveyor of Gonzales county, for the survey of the land in controversy for him, by virtue of a bounty warrant issued to Decatur Daniels; also a copy of the field notes of a survey of the said land, made by the said surveyor for the defendant, Allsey S. Miller, as assignee of Decatur Daniels, on the 13th of May, 1848, and a patent for the same issued on the 28th of July, 1848, to the said Miller, as assignee of Daniels.

The defendant, Neill, was offered as a witness, and having stated on his voire dire that he had no interest in the result of the suit, and had filed a disclaimer of all interest in the land, the court permitted him to be examined as a witness, to which the plaintiff excepted.

Neill then testified that the defendant, Miller, and himself, placed one Dilworth in possession of the land in controversy, in the fall of 1844, as their tenant, and agreed to give him 100 acres of the land in consideration of his holding possession for them.On cross-examination he stated that there was a written contract of tenancy between Miller and himself of the one part, and the said Dilworth on the other; whereupon the plaintiff moved to exclude his testimony as to the tenancy of Dilworth; but the court overruled the motion, and the plaintiff excepted.

The defendants also offered to read in evidence, a copy of the deed of relinquishment by Wickson, to the republic of Texas, together with proof of its due execution by him; but the court, on the plaintiff's objection, refused to permit them to do so, and they excepted.

There are many other matters presented by the statement of facts, and bills of exceptions taken by the parties upon the trial of the cause, but as they are not necessary for the proper understanding of the opinion, they are not stated.

There was a verdict and judgment in favor of the defendants; a motion by plaintiff for a new trial was overruled, and he appealed.

William H. Stewart, for the appellant.

J. A. & George W. Paschal, for the appellees.The record does not present the case as it ought to have been presented.The court ruled out the relinquishment of Byron Wickson to the state, because, in the opinion of the judge this court had held in this same case (11 Tex. 98), that the conveyance did not, and could not, pass the land to the state.We do not so understand the opinion, nor the law.The learned judge, who delivered the opinion, evidently intended to waive any opinion on the subject.And the doubt expressed, must have reference to the state of facts.And the court could have intended to say no more, than that the relinquishment could not make void the second title obtained in Robertson's colony, provided the first title was valid.

It could not have been intended to say, that in no case (nor in this case), can a person convey to the state his land, so as to divest himself of all right, and to vest that right in the state.The position, that such a conveyance, donation, or dedication, could not be made, without a legislative act, providing for the conveyance, is at variance with an elementary principle.A state is not only a corporation, but a sovereign.It can grant and receive grants, sue and be sued, and perform all other acts which a natural person may do, unless restricted by a constitutional inhibition.There is no necessity of a previous law, authorizing the citizen or a stranger to convey or to devise land to the state, no more than there is a necessity for the previous consent of an individual to receive a grant; the owner may divest himself of all title, without knowing whether it will be accepted or not; the grantee may return it to the grantor, or may convey it to another person; but as such a conveyance by a state requires authority of law, when a citizen conveys to a state, the property passes and remains, until a disposition be made of it by law.See the McDonogh's Will case, 15 How. 367, the concluding pages of the opinion;Vidal v. Girard's Executors, 2 Id. 127.

“The right to appropriate a derelict, is one of universal law, well known to the civil law, the common law, and to all law; it existed in a state of nature, and is only modified by society, according to the discretion of each community.What is the evidence of an individual having abandoned his rights and property?It is clear, that the subject is one over which every community is at liberty to make a rule for itself.”Hawkins v. Barney's Lessee, 5 Pet. 466, 467.The question is one of derelict; and no certain rules to prove a derelict, can ever be established.They are always within the range of legislative control.They enter into the whole order of society; and are more frequently reached through the force of the statutes of limitations, than in any other way.Hence, these statutes are always held to affect the...