Edgar v. Galveston City Co.

• Decision Date: 01 January 1858
• Citation: Edgar v. Galveston City Co., 21 Tex. 302 (Tex. 1858)
• Parties: ALEXANDER EDGAR v. THE GALVESTON CITY COMPANY.
• Court: Texas Supreme Court

21 Tex. 302

ALEXANDER EDGAR

v.THE GALVESTON CITY COMPANY.

Supreme Court of Texas.

1858.

Settlement under the colonization laws gave no absolute right, but only a preference in favor of the settler where all other things were equal.

It seems that a settlement and improvement made upon vacant land after the declaration of independence, is not within the scope of the provision of the constitution, giving to the actual settler and occupant of the soil the right to locate his land so as to include his improvement.

If within the six months' preference given to the holders of the first class land certificates such holders did not exercise their preferred right, and secure their improvement, such preference was lost, and the land open to general location. 19 Tex. 533.

The right of an occupant to have the benefit of his improvement, as against other individual claimants, cannot deprive the government of the right to sell or grant the land to another, or to reserve it from location altogether.

Under an allegation that the defendant had by fraudulent means obtained possession of his certificate, and had the same surveyed and patented, without any prayer for damages for the conversion of his certificate, or that the land embraced in the patent should be held in trust for him, or generally for its restoration to him, the plaintiff is not entitled to relief in respect to the property, or possession of said certificate, or the land appropriated by it.

Appeal from Liberty. Tried below before Hon. C. W. Buckley.

Suit for a league of land. The plaintiff's petition set up as the foundation of his right to recover, the following allegations:

The amended petition, after the proper averments as to parties, and a recital of the previous proceedings in the cause, makes the following allegations:

1st. That Edgar immigrated to Texas with his family in April, 1835, settled in Austin's colony, was duly received as a colonist, and so became entitled to a headright league of land within the limits of that colony.

2d. That he continued to reside in Texas, and performed all the duties of a citizen, down to the time of instituting this suit, May 2, 1842; and that he was a citizen at the date of the declaration of independence.

3d. That in April, 1836, he selected and settled on the league now in controversy, viz.: the league on the east end of Galveston island, which was then vacant, and that he made improvements on the land.

4th. That his headright certificate for a league of land was issued to petitioner in accordance with law, on the 3d day of February, 1838, by the board of land commissioners of Harrisburg county, in which county the land then was situated.

5th. That the county of Galveston was established on May 15, 1838, and this league was embraced within the new county.

6th. That petitioner filed his certificate in the office of the surveyor of Galveston county on July 8th, 1839, together with his written application and direction for the survey of this league including his improvements.

7th. That the certificate and application remained on file in the surveyor's office until May 29th, 1840, but, for some reason unknown to petitioner, no survey was made, though often applied for; “that on or about the 29th day of May aforesaid, the said defendants combining and confederating with one Gail Borden, Jr., then their pretended agent in that behalf, and with divers other persons whose names are unknown to your petitioner, but when discovered he prays may be inserted herein with apt words to charge them as defendants hereto, how to injure and defraud your petitioner in the premises, under color of certain false and fraudulent assignments or conveyances, and by divers other fraudulent means and pretenses, did, without the knowledge, consent, authority, or license of your petitioner, obtain and get into their possession the aforesaid headright certificate of your petitioner, and did afterwards fraudulently convert the same to their own use, and did unlawfully and fraudulently cause the same and the amount of land called for thereby to be surveyed for their own use and benefit, and have, as pretended assignees of your petitioner, fraudulently obtained a patent therefor from the general land office of Texas, which survey and patent so unlawfully and fraudulently obtained as aforesaid, your petitioner suggests and avers ought to be canceled, annulled, and made and held void and of none effect, by a decree of your honorable court, and such decree he here seeks.”

8th. That defendants set up title, first, under a grant to Juan N. Seguin, extended by the constitutional alcalde of Liberty, and conveyances from and under him; and secondly, under an act of the congress of the republic, approved December 9, 1836, and a patent issued, under said act to Menard on January 25, 1838, and conveyances from and under him; which grant and patent are both charged to have been null and void ab initio.

9th. That on the 1st day of February, 1837, Borden and others, acting for Menard, entered upon the land and made a survey thereof--petitioner being then in possession and notifying them of his claim; and that petitioner has continued to reside upon the land, claiming it as his own, down to the time of instituting this suit.

10th. That the petitioner held peaceable possession of the league and labor from April, 1836, for and during the period of more than five years next thereafter, undisturbed by any suit, and that he was prevented from complying with the 39th section of the act of December, 1836, by the want of a duly organized court in Galveston county.

11th. That none of the defendants' muniments of title were recorded until more than five years after plaintiff's right to the land had become vested.

The prayer is as follows: “Wherefore he prays that the Galveston City Company, defendants hereto as aforesaid, having appeared and answered in this case as aforesaid, do now answer this amended petition, if they see cause so to do, and that the survey and patent so fraudulently procured and obtained as aforesaid by the said defendants, for their own use and benefit, upon and by virtue of the headright certificate of your petitioner before herein set forth, be brought into court and canceled, annulled and made utterly void and of no effect, and be returned so canceled to the general land office by a decree of your honorable court; and that your petitioner's headright certificate aforesaid be returned to him, and his right to a survey thereon on the land by him applied for as aforesaid be confirmed and decreed to him; and that a patent in due form of law be decreed to issue therefor and thereon to your petitioner; and that a copy of this petition be served upon the commissioner of the general land office of the state of Texas, and that he be bound by all the proceedings of this cause, and that he be ordered to deliver up the said headright certificate to your petitioner, if the same be in his office or possession; and that any and all fraudulent or unauthorized conveyances or assignments, whereby or by virtue or color whereof the said defendants claim the said certificates, or any right, title or interest therein or thereto, for their own use or benefit, be decreed to be null and void and of no effect; and that the pretended location and survey of the league of land on the east end of Galveston island aforesaid, procured by the said Michael B. Menard under and by virtue of the said supposed grant to John N. Seguin in manner and form as hereinbefore set forth, be decreed to be null and void from the beginning, together with the said supposed title extended in manner and form as aforesaid by the said J. B. Wood, as constitutional alcalde of the municipality of Liberty; and that the said pretended assignment by the said supposed title purporting to be made by the said John N. Seguin to and in favor of the said Michael B. Menard, bearing date the 23d day of June, A. D. 1834, as aforesaid; and that the supposed title pretended to be extended by the said J. B. Wood, as constitutional alcalde of the municipality of Liberty, set forth in the aforesaid exhibit O, to be null and void from the beginning, together with every pretended right, title or claim, which may appear to be set up, alleged or derived by the said defendants under the said grant from, by or through the said Menard; and that the said pretended quit claim title or patent to the said Menard, his heirs and assigns, purporting to bear date the 25th day of January, A. D. 1838, set forth in the aforesaid exhibit K, and the two pretended conveyances executed by said Menard, and bearing date the 1st day of January, A. D. 1842, and the other bearing date the 1st day of June, A. D. 1843, set forth in the same exhibit K, be deemed to be null and void and of none effect from the beginning; and that all the pretended right, title and interest of the defendants purporting or appearing to be set up or derived under, from or by reason of the act of the congress of the republic of Texas set forth in said exhibit K, the quit claim title or patent aforesaid, or the said two last named conveyances, or all or any of them be decreed to be null and void and of none effect from the beginning; and that the right and claim of your petitioner herein before set forth and stated to the said league and labor of land situate on the east end of Galveston island aforesaid, accruing by reason of the premises, and by virtue of the laws hereinbefore set forth and referred to, and of his settlement, selection, improvement and residence aforesaid, be decreed to be fully vested and established in him, and that he be quieted in his possession of the said league and labor of land by a decree of your honorable court, and that the right to have the same surveyed and patented to and (from) him, and to have and hold the same by a good and valid title from the government of the state of Texas be decreed to him; and that the said ...