Edwards v. Davis

• Citation: 3 Tex. 321
• Parties: MUNROE EDWARDS et al. v. EDWARD DAVIS et al.
• Decision Date: 31 December 1848
• Court: Supreme Court of Texas

3 Tex. 321

MUNROE EDWARDS et al.

v.EDWARD DAVIS et al.

Supreme Court of Texas.

December Term, 1848.

Appeal from San Augustine County.

Whether or not a particular tract or grant of land lies within the boundary line of the twenty frontier leagues, cannot be judicially known to the court.

The executive of the state of Coahuila and Texas, without the approbation of the president of the Mexican union, had no authority, under the laws, to grant lands within the twenty border leagues for the purpose of perfecting an inchoate claim to the same land previously acquired under the government of Spain. [ Ante, 241; Post, 499; 10 Tex. 316;23 Tex. 29.]

This action was commenced for the recovery of lands lying in the county of San Augustine. The petition states, in substance, that one Francisco Guerrero, in March, 1827, applied to the political chief of the department of Texas, praying to have the boundary lines run, and a complete title made to him of a farm called the Attoyaque, which he had then in possession as his own property, having improved and cultivated the same. That, in conformity with the prayer of the said petition, and in compliance with official instructions from the governor of the state of Coahuila and Texas, reciting that having seen the petitions of various citizens of Nacogdoches, and, among others, that of Francisco Guerrero, praying to be put in personal possession of the lands they occupy, he had determined to grant said petitions, and required the said political chief to appoint some person of his confidence to survey the said lands, and put the petitioners in possession, and issue to them the corresponding titles, on condition of their paying the government dues, at the rates paid by new settlers or colonists under the laws of colonization, and that none of said grants should exceed eleven leagues of land. The said political chief did authorize and commission the alcalde of Nacogdoches to proceed, in obedience to the superior order of the governor, and put the parties mentioned, among whom was Francisco Guerrero, in possession of the lands petitioned for; to have the lines run, and to do all that was necessary before issuing corresponding titles to the land. That the said alcalde, on the 20th August, 1827, appointed a surveyor, and on the thirtieth of the said month, he proceeded with the said surveyor to the land designated; surveyed and marked the lines, in conformity with the said decree of concession, and the possession thereof, in due form of law, delivered to the said Guerrero, and executed to him a title with the usual legal formalities and solemnities. All of which would more fully appear by reference to the documents, orders, decrees, commissions, etc., etc., recited in the petition, and which are brought into court, ready to be produced and proven, and to which petitioners beg leave to refer. The boundaries of the said concession or grant are fully set forth.

It is averred that the said Guerrero sold to some of the plaintiffs all his right, title and interest in the said concession, with certain reservations specified in the deed of conveyance, which deed was shown to the court; and that the other plaintiffs derive their titles from these first purchasers, and that the petitioners, having thus a legal right to the said grant or tract of land, took peaceable possession of the same. That the defendants afterwards ejected them from the premises, and still continue to deprive them of possession.

The petition was filed in February, 1839; and although, from the language of the petition, it might be imagined that the evidences of the plaintiffs' title were exhibited at the same time, yet they were not marked filed until 1847.

It will not be necessary to detail the pleadings of the parties, their various motions and agreements, from the commencement of the action in 1839, until the fall term of the court in 1847, when an amendment to the petition was filed by the plaintiffs. At the succeeding term the defendants excepted generally to the plaintiffs' petition for legal insufficiency, and filed several pleas by way of an amended answer, and the various exceptions of the parties to the pleadings of each, respectively, were, at the same time, considered and determined by the court.

Among the exceptions overruled was the motion of the plaintiffs to strike out the demurrer in the defendants' amended answer, and, the demurrer being sustained, judgment was consequently rendered for defendants. A motion for reconsideration was overruled, and an appeal taken.

WEBB and J. P. HENDERSON for appellants.

ARDREY for appellees.

Mr. Chief Justice HEMPHILL, after stating the facts, delivered the opinion of the court; Justice WHEELER not sitting, having been of counsel in the court below.

The admissibility of the demurrer in this cause, at the late stage of the pleadings, was not discussed before this court, and the only point raised in the argument was, whether there was error in sustaining the demurrer, and the consequent dismissal of the petition.

The first ground assumed in support of the judgment was, that in the deed of conveyance from Guerrero there were reserved certain portions of the land contained in his grant; and, there being no distinct averment that the ejectment was from that portion of the land transferred to the plaintiffs, there is, consequently, no exclusion of the inference that the plaintiffs may have been ejected from, and defendants may now be in possession of, the lands reserved to the vendor. That the facts in relation to the precise locus of the ouster are stated loosely, is obvious; but, notwithstanding the want of precision in the averments, there appears to be sufficient certainty in the pleadings to apprise the defendants and the court that the plaintiffs were claiming only the lands conveyed by the deed; and that the wrongs complained of, and the remedy prayed, were in relation to those lands, and not those still owned by the person from whom the purchase was made. They make profert of the deed, and it might be supposed that this document was in court from the commencement of the action. Under the laws of Spain, the ancient practice was, always, to present, with the petition, the evidence of right upon which the demand was founded. This was afterwards changed, and, ordinarily, instruments were not produced until offered in proof, unless inspection of them was demanded by the opposite party; and they were then required to be exhibited and annexed to the petition. [Gomez, Practica Forensica, p. 19.]

But, whatever may have been the proper practice at the institution of the suit, and whether the deed were filed or not at that time, it was, at all events, exhibited, and its contents fully known before the filing of the demurrer. The petition declares that Guerrero conveyed to some of the plaintiffs all his right, title and interest in the lands contained in the grant, with the exception of certain reservations expressed in the deed, and this, on inspection, shows the land embraced in the reservations. The subsequent averments, though sufficiently broad to cover all the lands contained in the grant, must be taken with the qualifications previously expressed and admitted, and be understood as having reference only to such portions of the grant as they had claimed under the conveyance. If any of the defendants be on the reserved lands, they must recover on the title exhibited by the plaintiffs themselves, as this negatives any pretensions of the latter to a claim for such lands.

A further examination of this ground is not deemed necessary, and we proceed to the consideration of the main question in the cause, and which was fully and elaborately argued, and it is this, viz.: that the grant exhibited, being for lands lying within the twenty border leagues, could not have been legally made without the previous approbation of the supreme executive of the union, and this not appearing, the grant is a nullity, and cannot support the action.

The...