Hancock v. Mckinney

• Decision Date: 01 January 1851
• Citation: 7 Tex. 384
• Parties: HANCOCK v. MCKINNEY.
• Court: Texas Supreme Court

7 Tex. 384

HANCOCK

v.MCKINNEY.

Supreme Court of Texas.

1851.

Where a concession in sale, under the 24th article of the colonization law of 1825, conceded to the purchaser the terms designated in the 22d article of the same law: Held, That it was no objection to the title. (Note 60.)

The contracts which the Executive had ratified, and the concessions stipulated to purchasers or settlers by virtue of decree No. 16 of the 24th of March, 1825, were confirmed by article 16 of the law of the 28th of April, 1832. (Decree 190, Laws & Dec., C. & T., p. 191.)

In disposing of this objection, on which much reliance seems to have been placed, we have not deemed it necessary to enter into a critical examination of the terms and import of the several provisions of the law to which reference has been made, or to institute an inquiry into the policy of the former Government in the disposition of her public domain in order to ascertain whether a just interpretation of those laws or a proper understanding of that policy would have required a different action from that taken by the Executive in this instance. It would not be unreasonable to suppose that the highest executive and legislative functionaries of the then Government had as enlightened views in respect to the true policy of their Government and as just an appreciation of their powers and duties as we possess in respect to them. The construction of their powers, and of the laws which conferred them, adopted and acted upon by the authorities under the former Governments of the country, must be respected until it be shown that they have clearly transcended their powers or have acted manifestly in contravention of law. (Note 61.)

Where a concession of land, in sale, to a person who was at the time Secretary of State was authenticated by the “first officer,” instead of the Secretary of State: Held, That the objection was not of a character to invalidate the title.

Where a concession directed the alcalde of “the respective or nearest municipality,” to put the grantee in possession of the land which he might select, and to issue to him the title, &c.: Held, That the concession was not directed exclusively to the alcalde of the very municipality, if the land should be within one, the term “nearest” contemplating the event of the land not being within any municipality, but that it was directed to the alcalde of the municipality which might be embraced within either term, and that either one of two might act under the appointment, as might be found most convenient. But the court afterwards say: It is not certainly shown in what municipality this land was situated. (It lies on the right bank of the Colorado, a short distance below the city of Anstin.) We have little doubt that it was in that of Bexar. But that is not satisfactorily established by evidence in the case. And if it were, we cannot undertake to say, from the evidence, that, in the then state of the country in respect to the means of intercommunication, the seat of justice of the municipality of Austin, (San Felipe, the alcalde of that municipality put the grantee in possession, &c.,) was not considered nearer than Bexar; and to sustain the objection, it devolved on the party making it to show that that of Austin was neither the “respective” nor ““““nearest” municipality. (Note 62.)

The distinction between perfect and imperfect titles under the Government of Coahuila and Texas has been often discussed in this court, and resulted in the acknowledgment of the distinction, resting on the following basis, that is to say: If the grant were to receive no further act to constitute it an absolute title to the land from the legal authorities, taking effect in presenti, it was a perfect title; but if something remained to be done by the Government or its officers, such title or right was imperfect; and until it received the sanction of the political authority it could not claim judicial cognizance.

Titles issued to colonists and purchasers under the colonization laws of Coahuila and Texas were of an entirely different character from those concessions issued by the Spanish authorities in Florida, and afterwards pronounced inchoate by the Supreme Court of the United States. Under these laws the title of possession was a final title. Conditions were annexed, except to those granted to the military and some other favored persons. But they were conditions subsequent, upon the non-performance of which the land was to be forfeited.

The appellant alleges that the conditions were not performed, and that a forfeiture of the title was the consequence. He is here met by the eighth section of the schedule of the Constitution of the State, directing that “the Legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.” No method having yet been provided by the Legislature, it presents a case in which all jurists agree that the courts must await the lead of the political authority before they can act. The appellant having located subsequent to the adoption of the State Constitution, whatever rights he can claim under his location must be subject to the Constitution. And it must be distinctly understood, that so far as his right to assert the forfeiture and to take the benefit thereof is concerned, this case is controlled by the State Constitution. No opinion is expressed as to what would have been the result had the location been made before the adoption of the State Constitution. (Note 63.)

There is no doubt that, in practice, under the Spanish law, where grants of land were made upon conditions, if the conditions were not performed, any one might denounce the land, prove the forfeiture, and have the land granted to himself. But then it devolved on the denouncer to prove the forfeiture. And if it were conceded that the plaintiff had the right to institute this proceeding, in analogy to the practice under the Spanish law, for the purpose of having the forfeiture adjudged by reason of the non-performance of conditions, nothing can be more perfectly clear than that it devolved on him to prove the facts in which the forfeiture consisted.

Quere where it was provided that, upon the failure to perform conditions annexed to a final title, the title should become null, whether the rule is not different from the above, both as to the right of an individual to take advantage of the forfeiture, and as to the burden of proof respecting the performance or non-performance of the conditions.

Appeal from Travis. This suit was instituted by the appellant, on the 29th day of August, 1849, to recover from the appellee a tract of land. The plaintiff claimed title under a location and survey made by virtue of a headright certificate, on the 17th day of September, 1848. He alleged that the defendant, who was in possession, claimed adversely to him, under a grant for eleven leagues of land, made by the Governor of the State of Coahuila and Texas, in 1832, to Santiago Del Valle, which he averred was void, for that it was issued to Samuel M. Williams, representing himself as agent for Del Velle, and who, as such agent, solicited and procured the survey and title of possession to ten leagues, under and by virtue of the concession to Del Valle, when said Williams was not such agent, and had no authority to act in the premises; and for that the alcalde who executed the title had no authority; and also for that the said grant was made upon conditions which had not been performed, by reason of which the title had become forfeited.

The defendant pleaded, “not guilty.” He further interposed a plea of title in himself, derived from the grant to Del Valle, mentioned in the petition.

The material questions in the case arose upon objections taken to the validity of the title under which the defendant claimed, which was as follows:

On the 8th day of March, 1832, upon the petition of Santiago Del Valle, Secretary of State, the Governor of the State of Coahuila and Texas granted to him a concession, in sale, under the twenty-fourth article of the colonization law of the State, of 1825, of eleven leagues of land in the department of Bexar, in the place which he should designate. The concession directed the commissioner for the partition of lands in the enterprise to which those solicited belonged, if within any, and if not, the alcalde of “the respective or nearest municipality,” to put the grantee in possession of the land, and issue to him the title, first classifying the quality of the land, to ascertain the price which must be paid to the State; for which payment, it conceded to the purchaser the terms designated in the twenty-second article of the law. The concession was signed by the Governor, and by “Jose Manuel Falcon, first officer.”

The lands selected not being within any colonial enterprise, on the 29th of May, 1832, Samuel M. Williams, as attorney for Del Valle, presented to the alcalde of the municipality of Austin at San Felipe, his concession, designated the land, and solicited the title. The alcalde having caused the land to be surveyed and classified, issued the final title to Williams, as attorney for Del Valle, on the 12th day of June, 1832. A jury was waived, and the case, by consent, submitted to the court. It was admitted that Williams had authority to act for Del Valle. There was judgment for the defendant, and the plaintiff appealed.

The errors assigned, which were deemed by the court to require notice, were the ruling of the court, admitting in evidence the title to Del Valle and the judgment on the merits.

J. Hancock, for appellant.

I. As far as relates to the validity of the title for ten leagues of land, made to Santiago Del Valle, the questions involved in this case are very nearly the same as those in the case of Hancock v. Horton, now depending in this court; and as these questions are considered at length in the briefs filed in that case, it is not deemed necessary to do more...