Heirs of Hunt v. Heirs of Robinson

• Decision Date: 31 December 1847
• Citation: 1 Tex. 748
• Parties: THE HEIRS OF WILLIAM R. HUNT, DECEASED, v. THE HEIRS OF WILLIAM ROBINSON, DECEASED
• Court: Texas Supreme Court

1 Tex. 748

THE HEIRS OF WILLIAM R. HUNT, DECEASED,

v.THE HEIRS OF WILLIAM ROBINSON, DECEASED

Supreme Court of Texas.

December Term, 1847.

Appeal from Colorado County.

Where a colonist to whom a grant of land was made in 1835 contracted to sell the land before the expiration of six years after receiving his grant, and to make a full conveyance thereof to the purchaser as soon as the law would permit; and the purchaser went into possession of the land at the time of the contract and made valuable improvements thereon. Held, that such contract was illegal and void, and could not be enforced. [3 Tex. 496, 498;9 Id. 385;10 Id. 113;12 Id. 18;16 Id. 70;18 Id. 80;21 Id. 154;27 Id. 393.]

This was an action brought by the heirs of Robinson against the heirs of Hunt, on a contract to compel its specific performance. The contract is in substance as follows, viz.: “In the town of San Felipe de Austin, on the 14th day of the month of December, A. D. 1832, before me, citizen, Horatio Chrisman, first and constitutional alcalde, and the witnesses who were called for the purpose, in addition to the two assisting witnesses with whom I officiate, there being no legal notary, personally appeared citizen William R. Hunt, whom I know, who said he had agreed to sell to citizen William Robinson, resident of the precinct of Alfred, the league of land that as a colonist he has received in the colonial district of the empresario, Stephen F. Austin, situated on the left bank of the Colorado river, adjoining and above the land of Peyton R. Splane, as evidenced by title extended in his favor in the name of the state of Coahuila and Texas by the commissioner, citizen Miguel Arciniega, under date of the 23d of February of the present year, and also to extend the necessary deed in favor of the said Robinson, or whomsoever shall represent him, as soon as the law of the state will permit the alienation and transfer. He further agrees, promises and binds himself to sell and transfer, as soon as the law will permit him, to the said Robinson the league of land aforesaid for one hundred and sixty-five dollars, which have been paid to him, and being had and received to his certain satisfaction, he renounces the laws of non numerata pecunia, no intrega y prueba; and also in consideration of a tract of land which the aforesaid Robinson has this day fully and completely conveyed to him, which tract consists of a superficial area of 3,508,720 varas, more or less. In consideration of which he promises and binds himself and his property, both in possession and expectancy, present and future, that he will not sell the aforesaid league of land to any other person, even though more should be offered him; that he will execute in favor of the said Robinson the necessary deed and that he will not violate the covenant here made; and in case he should do so, he will return to the said Robinson the aforesaid one hundred and sixty-five dollars which he has received and the tract of land above mentioned, and will pay as a penalty three hundred dollars and the costs, damages, injuries and losses which said Robinson should suffer from such violation, in which event he here makes a confession of judgment without further demand and he renounces the benefits of law 6, tit. 5, Partidas, 5; also law 2, tit. 1, book 10, N. R., and the four years allowed for demanding the completion of the first value of the land or rescinding the contract, which four years he gives and concedes as past and expired, inasmuch as there is no inadequacy in the price agreed upon, or if there should be any, he hereby makes full grace and donation of it, be it more or less, perpetually and irrevocably to the said William Robinson, full power to use and enjoy the aforesaid league of land, to construct houses upon it, open labors and obtain from its waters and timbers all possible use and benefit; and to the judges who can take cognizance of this instrument by law he gives and confers full power, in order that they may compel him in the most prompt executive manner to its fulfillment as fully as could be done by the definitive sentence of a competent judge rendered under the authority upon an adjudicated subject; and he fully renounces all laws, exceptions and provisions that might be in his favor, etc.

The defendants pleaded that the agreement was void:

1st Because given contrary to law and public policy.

2d. Because it had no stamp.

3d. Because the seal was not legalized or authenticated according to law, and the writing not attested by the legal number of witnesses nor in the proper manner; and that the alcalde was not a notary public and had no authority to act as such.

4th. That Hunt had no right to alienate more than one-eighth of his land. That he could not dispose of more than one-half of it, the other being the property of his wife and her heirs; and

5th. That the contract was usurious and fraudulent.

From the statement of facts, it appeared that Hunt and his heirs had been in possession of the land mentioned in the contract as received from Robinson ever since the date thereof, and had made valuable improvements thereon. That Robinson and his heirs had been in the possession of the league of land from the same time and had made valuable improvements.

It was agreed that the rights of the widow of Hunt should be adjudicated as fully as if she had set up her community claim to the one-half of the league of land in proper form. There was no evidence of the time of the death of either Hunt or Robinson or of the value of the property held by Hunt at his death, or that of the share, if any, received by his widow.

A jury having been waived, the judge decreed a specific performance of the contract in favor of the heirs of Robinson, and against the claim of the widow.

The defendants thereupon appealed.

Robinson, for appellants, made the following points:

1. The paper purporting to be a title bond from Wm. R. Hunt to Robinson is not legally authenticated, there being, 1st. But one attendant witness. 2d. There is no seal attached to the instrument. 3d. The alcalde has no authority to act as notary public. 4th. The alcalde did not sign his name in the proper place. 5th. The names of the witnesses are not mentioned in the notarial act, as is required in the Partidas, and there seems to have been but one who attended and knew the transaction. 1 vol. Partidas, 224, law 54, p. 234; law 115, p. 244; laws 1, 2, 3, 4, 5, 7, 9; Story Confl. p. 524; Wheat. Int. Law. p. 118, sec. 18, p. 119, sec. 19; vide Instructions to Commissioners, of 1827, p. 81, sec. 27, in pamphlet; Sevenet et al. v. Le Breton et al. 8 N. S. 502; Maria Louisa v. Conchoix, 11 Mart. 243.

2. The bond is not on stamped paper, and is not legalized as required by law -- legalization cannot extend beyond two years. In this case it is for six years. Laws of Coahuila and Texas, vol. 1, p. 9, decree 11, and p. 97, decree 43; Story Confl. p. 524; 2 Bl. Com. p. 297; Chit. Cont. 514 and 574 and note [[[[[[9]; 1 Stark. Ev. 318; 2 Id. 771; 1 Kent, 466 to 468; 4 Id. 464.

3. The benefit of a prohibitory law cannot be renounced, for it is against public policy. Civil Code, arts. 11 and 12; 2 Partidas, p. 807. The renunciation was in fraud of the law. 1 Partidas, p. 60. The public policy of the country may be clearly seen by reference to the Preamble to Decree No. 16, p. 15; 2 Kent, 465-6-7; 4 U. S. Cond. p. 171; Id. p. 61 and notes.

4. The alienation was contrary to positive law, and therefore null and void. Colonization Law of 1823, arts. 22, 23, 29, and Laws of Coahuila and Texas, vol. 1, p. 15, Decree No. 16, and vol. 2, p. 247; Decree No. 272, sec. 36; Decree No. 190, art. 19; p. 191, art. 33; 10 Pet. pp. 362-3; 2 Partidas, 807; 4 Kent, 430, 464; 1 Id. 466, 468.

5. The bond is void because Hunt had no capacity to convey. 10 Pet. p. 360.

6. Hunt could only donate or convey, under any circumstances, one-half of this, his headright, league of land. The other half belonged then, and still does, to his widow, and could only be conveyed by her signing and sealing the bond ordered, if the law in other respects had permitted her to do so. 1 Partidas, p. 514; Id. p. 268, law 17.

7. The title was not in Hunt, but in the Mexican government. He only held the evidence of a concession or conditional grant, which was not yet perfect and complete, but which might yet wholly fail, and the fee simple never vest in the grantee. 2 Partidas, p. 793.

8. The sale of the land must be rescinded on account of lesion, or inadequacy of price, apparent upon the face of the bond, it being for $165, which would not pay for surveying and office fees in Austin's colony. 2 Partidas, p. 700; Civil Code, arts. 1854, 2567, 2578; 2 Kent, 477, and note (a).

9. The court may presume fraud and unfairness from the want of any adequate consideration apparent upon the face of the bond. 2. In the clauses of renunciation. 3. In the clause of donation. 4. In the judgment for vindictive damages and usury. 2 Partidas, p. 1218; 1 Id. p. 60, law 44.

10. Usury may also be inferred or presumed from the penalty. 2 Partidas, pp. 809, 816.

11. If the parties were prohibited at the date of the instrument (December, 1832) from making a conveyance of the land, then the obligor could not enter into and make stipulations to be performed in futuro which could not legally be performed in presenti. Chit. Cont. p. 540; 10 Pet. p. 474;Mitchell v. Doggett, 1 Florida, p. 371, and authorities there cited.

12. The revolution of Texas does not affect or in any way change the rights of the parties now before the court. These became fixed and vested at the date of the contract. Wheat. Int. Law, p. 105; 2 Kent, p. 462.

13. The distinct practice and clear policy of the government of Mexico was, to withdraw from commerce the lands conceded to colonists for a limited time, and compel the grantee to occupy and cultivate the same.

14. The consent or omission of parties cannot make that lawful which is...