Horton v. Brown
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 78 |
| Parties | A. C. HORTON v. HENRY BROWN |
| Court | Texas Supreme Court |
Appeal from Bastrop County.1
The doctrines in the case of The Heirs of Holliman v. Peebles, decided by this court at the present term , recognized and adopted as the law of this case. [1 Tex. 673;10 Tex. 168;22 Tex. 155.]
Lands granted to an individual as a colonist who did not establish his domicile in the country, or who, after having been domiciled, abandoned the country, were forfeited, and immediately reverted to the government.
To entitle another to a regrant of land thus forfeited, no inquest of office or other judicial proceeding or sentence was necessary under the land laws of Coahuila and Texas as interpreted by the rules prescribed by the civil law of Mexico and Spain.
In the year 1839, the appellant commenced a suit in the district court of Bastrop county against the appellee and the commissioner of the general land office by filing a petition, the substantial allegations of which are in the following words:
“In the month of April, 1835, your petitioner arrived in Texas and became a colonist and a married man, entitled to one league and labor of land as his headright, and on the 18th day of January, 1838, your petitioner applied for and received from the board of land commissioners of Matagorda county, in said republic, his certificate for said league and labor, in conformity with law, etc. That afterwards, to wit, in February, 1838, your petitioner located a part of his headright secured by said certificate, to wit, one league thereof, on a certain tract or parcel of land, situated and being in said county of Bastrop, and known and distinguished on the map of said county as league number one (1), fronting on the San Antonio road, 5,000 varas, and on the east margin of the Rio Guadaloupe; that said location was duly entered in the office of the county surveyor of said county of Bastrop, in the name of your petitioner, and the field notes thereof recorded in his books; that your petitioner paid all government dues on said land, and caused the receipt of said payment to be forwarded, with the field notes of the survey of said league, to the commissioner of the general land office, by said surveyor. Your petitioner would further represent that the commissioner of the general land office returned said field notes to said county surveyor, and refused to issue a patent to your petitioner, because it appears that a deed of the following description, to wit, a deed executed by Talbot Chambers, as commissioner of Milam's colony, in the spring of the year 1835, to one Henry Brown for league number (1) one, fronting on the San Antonio road and Rio Guadaloupe (being the same league located by your petitioner as aforesaid), is on file in the general land office, and that no judicial decision by a court of competent jurisdiction had declared said deed void and null. Your petitioner further showeth that the said deed ought not and does not, in law and equity, bar your petitioner's just claim to said league, and that the said Brown ought not to hold said land by virtue of said deed thereof, in preference to your petitioner's best right: For, that the said Henry Brown, the grantee of said land, was not at the time of the execution of said deed, or at any time previous or subsequent thereto, a colonist or a citizen of the state of Coahuila and Texas; that the said Brown did not then, or at any other time, nor never has resided in Texas; but your petitioner avers that the said Brown came into Texas at the time aforesaid, to wit, the spring of the year 1835, and departed therefrom in a few days, to wit, fifteen days from the time of his said coming, with the intention of not returning, and that in fact your petitioner says the said Brown never has returned, but is now a citizen of the United States of North America, and owes and pays allegiance to the government thereof, and is and always has been, in fact, in reference to the government of Mexico, the state of Coahuila and Texas and the republic of Texas, an alien. And your petitioner by leave of the court first had and obtained, and by way of amendment alleges that the said Henry Brown, at the time the aforesaid deed or grant was made to him by Talbot Chambers, commissioner as aforesaid, falsely and fraudulently represented, and caused himself to be falsely and fraudulently represented to said commissioner as possessing the necessary qualifications and requisites to be admitted as a colonist, and to be entitled as a colonist and head of a family to a league of land. Whereas, your petitioner alleges that the said representations were wholly untrue and fraudulent, and that the said Henry Brown had neither wife, child, servant or any other person under his charge to constitute a family at the time of the aforesaid grant in the spring of 1835, nor at any time from the date of said grant to this present time. “Wherefore” (after a prayer for proper steps to bring the commissioner and Brown into court to answer, etc., the petitioner proceeds) “your petitioner further prays that your honor will grant the writ of mandamus directed to the commissioner of the general land office, requiring and commanding him to make out and issue to your petitioner a patent to said league of land, and for general relief,” etc.
The record then recites a written acknowledgment of the service of “the petition and writ in this case,” signed by John P. Borden, commissioner of the general land office, but contains no answer on his part. At the spring term, 1840, an answer was filed on the part of the defendant, Brown, in these words:
“The defendant, by his curator, says that the facts set forth in the plaintiff's petition are not sufficient in law to have and maintain his aforesaid suit. And this he is ready to verify. Wherefore he prays judgment, etc.
+-----------------------------+
¦(Signed)¦J. W. BUNTON, ¦
+--------+--------------------¦
¦ ¦Curator pro Def't.” ¦
+-----------------------------+
The action and judgment of the district court are exhibited by the record, in the following entry:
Gillespie, for appellant.
The matters presented by the record in this case are few.
It shows that in the year 1835, Brown procured a deed to a league of land, the now subject of controversy, from the commissioner of Milam's colony.
In the year 1838, Horton entered his headright certificate on the same land, took all the preliminary steps to obtaining a patent, and had the field notes returned to the general land office for that purpose. The commissioner returned them to the surveyor's office, with the reason for his refusing a patent to Horton for the land described by them, “that it was upon and included the land claimed by said Brown in Milam's colony.”
Horton then filed his petition or bill in the district court where the lands lay, alleging that the deed to Brown was procured by false and fraudulent representations; that in truth and in fact he, said Brown, was never entitled to land as a colonist; that he was merely a visitor to the country and left and abandoned the same a few days after he procured the deed to the land. Horton insists in his said bill that the deed to Brown was and is a nullity; that nothing passed to him by said deed, and consequently the land claimed by it remained vacant and was then liable to his location.
The commissioner general is made a party and the prayer is, that the title of Brown be set aside and a patent issued to him, Horton.
Brown appeared by his counsel, and filed a general demurrer, intending thereby to admit all the facts alleged by Horton as true, which was so considered by the court, as appears by the record.
The demurrer was sustained, from which Horton appealed.
The appellant insists that the court erred in sustaining the demurrer.
That the title set up by Brown, having been obtained by fraud, was void and null; that he took nothing under a deed procured by his own fraudulent devices, and consequently the appellant, who had a claim upon the government, had a right to locate any lands that had not been otherwise lawfully appropriated. It is the policy of the law to make it the interest of all persons to investigate and suppress frauds. It is their interest to take care of the public good.
By all law writers, fraud has ever been held so odious as to vitiate and nullify everything that it touches or comes in contact with. It will vitiate and destroy the most solemn proceedings of courts of record. 2 Stark. Ev. 339-40; 2 Coke, p. 80, note 3; 2 Bl. Com. 286-7; 3 Cruise D. 47; Story's Conf. 499 and note; 1 Johns. Ch. 405; 1 Vesey, 120, 284-9; Barwick's case, 3 Coke, 94. A patent obtained by fraud is utterly void. 2 How. (U. S.) 581;3 Ala. 47-9.
I would particularly press on the consideration of the court, the reasoning of the great Coke in the case referred to. Human nature has not changed since his day.
The officer of the government for the distribution of public lands was intrusted with particular and special duties. If he was imposed on or deceived in the issuing of a title, in fraud of the law, it would be contrary to law, and of course null and void, as much as if a forged deed was attempted to be forced on the country; for...
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Bledsoe v. Int'l R.R. Co.
...of the general land office in very few instances--perhaps three or four out of the numerous cases wherein it has been attempted. Horton v. Brown, 2 Tex. 78;Ward, Commissioner, v. Townsend, 2 Tex. 581; H. & G. N. R. R. Co. v. Kuechler, 36 Tex. 382. In the first case, the suit above referred ......
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