Hardiman v. Herbert

• Decision Date: 01 January 1854
• Citation: 11 Tex. 656
• Parties: HARDIMAN v. HERBERT.
• Court: Texas Supreme Court

11 Tex. 656

HARDIMAN

v.HERBERT.

Supreme Court of Texas.

1854.

Where the plaintiff claimed by junior title, alleging that the elder title was fraudulent and void, and the Court below rejected the plaintiff's title when offered in evidence, to which ruling the plaintiff excepted, this Court seemed to be of opinion that the plaintiff was not entitled to a revision of said ruling. because he did not adduce evidence of the fraud in the defendant's title, and show the same by a statement of facts.

If it were an open question, now for the first time to be determined, we might feel no hesitancy in deciding that two single men did not constitute a family in the proper acceptation of that term. But, what should be held to constitute a family, within the contemplation and intention of the Colonization Laws, was a question of judicial construction and interpretation, which was submitted to the authorities, appointed and empowered to execute those laws, and is believed to have been settled, in so far as respects the present question, by cotemporaneous construction and usage. It is believed to have been the construction and understanding of the law, adopted and acted upon, under Austin's first contract of colonization, and continued in practice down to the period of colonization under the law of the 24th of March, 1825 (which made special provision for the granting of land to single men), to make to two or more single men, uniting in a petition, a grant of land as to a family.

Where questions were fairly submitted to the former authorities of the country, upon the construction of their laws, we have never undertaken to sit in judgment upon their action, as a revising Court, authorized to entertain appeals from their adjudications; on the contrary, where questions were thus submitted and decided, we have held their actions and adjudications, as to rights acquired under them, conclusive upon all questions properly within their cognizance, when not affected by any question of intentional fraud, or unauthorized usurpation of authority. (Note 90.)

Error from Colorado. This was an action of trespass to try title, brought by the plaintiff in error against the defendant in error. The defendant admitted that he was in possession of the land claimed by the plaintiff; and averred that he was rightfully in possession under a just and legal title duly recorded; and that he and those under whom he claimed, had had the undisturbed possession of the premises since 1824.

At the Fall Term, 1849, the defendant filed, with other evidences of title, an admission in writing by the plaintiff, “that the premises sued for were granted by the Mexican government to A. W. McClain and James McNair, on the 24th day of August, 1824, as colonists under the first contract for the colonization of three hundred families, made between Stephen F. Austin and said government; and that the copy of the deed on file in the papers of this case, certified to by the Commissioner of the General Land Office, and attested by his seal, shall be read in evidence,” etc. The plaintiff subsequently amended his petition, alleging that he claimed the land in controversy by virtue of a headright certificate, located previous to the commencement of the suit; and that the defendant's title thereto is void, for that it was obtained by the grantees therein falsely and fraudulently representing themselves as heads of families, when they were single men and not heads of families; and that the title was issued to them “in fraud of the law and against law.”

A jury was waived and the case submitted to the Court. There is no statement of facts. But it appears from a bill of exceptions in the record, that the plaintiff offered in evidence a certificate for a league of land, issued to one Cooper on the 13th of January, 1840, and transferred to the plaintiff; which was objected to by the defendant, and rejected by the Court. There was a judgment for the defendant; and the plaintiff brought a writ of error.

R. J. Rivers, for plaintiff in error.

Harris & Pease, for defendant in error.

WHEELER, J.

The plaintiff expressly admitted the defendant's title; but sought to impeach it as having been fraudulently and illegally issued. Having admitted the title, before he could claim a right to recover the land embraced in it, by virtue of his junior title, it devolved on the plaintiff to establish the invalidity of the defendant's title. Until that title was successfully impeached, the plaintiff's title could not avail him. And, the trial being by the Court, in the absence of a statement of facts, it would seem to be a legitimate presumption in favor of the judgment, that the plaintiff had failed successfully to impeach the title of the defendant; and that it was for that reason that the Court rejected the evidence of title relied on by the plaintiff. Unless the plaintiff was successful in invalidating the title of the defendant, he cannot have been injured by the ruling in question; and can have no just cause to complain of the judgment.

But waiving this view of the case, the...