Hosner v. Deyoung

• Decision Date: 31 December 1847
• Citation: 1 Tex. 764
• Parties: RUFUS K. HOSNER v. JOHN DEYOUNG, SURVEYOR, ETC.
• Court: Texas Supreme Court

1 Tex. 764

RUFUS K. HOSNER

v.JOHN DEYOUNG, SURVEYOR, ETC.

Supreme Court of Texas.

December Term, 1847.

Appeal from Galveston County.

A state cannot be sued in her own courts without her own consent, and then only in the manner indicated by that consent.

A mandamus is not a process that can be resorted to against the state without its consent. [2 Tex. 497, 594; 5 Id. 418.]

An application to the court for a mandamus to compel a district surveyor to make a survey of a certain tract of land by virtue of a land certificate is in effect a suit against the state and cannot be maintained.

Where the party seeking to have such survey made admitted that the certificate in question had been fraudulently obtained by the fraud of the board of land commissioners who issued the same, and that the person to whom the same purported to have been issued was a fictitious person: Held, that every supposed right acquired under and by such certificate was null and void, and that the assignee of the same had no standing in court.

The different acts of the congress of Texas to detect fraudulent land certificates are valid and not repugnant to the constitution of the late republic, and the claims to be acted on by those laws were only imperfect obligations and could never be enforced against the government (in whom the fee was) but by and with its consent. [2 Tex. 497; 20 Id. 612;23 Id. 93;28 Id. 687.]

The government has the right in all cases where the fee to the land remains in herself, to establish, alter and modify such regulations, from time to time, as may be deemed necessary in maturing an imperfect into a perfect title. [14 Tex. 213; 25 Tex. Sup. 408.]

At the November term, 1846, of Galveston district court, the appellant filed his petition, alleging that he was the legal owner of a certain land certificate which was issued by the board of land commissioners from San Augustine county in 1838, to one John S. Duncan, and that the same had been duly assigned and transferred to the petitioner; that he had made application on the 24th November, 1846, to the appellee, who was the district surveyor of Galveston district, to survey a certain tract of land upon and by virtue of said certificate, which he had absolutely refused and declined to make or to take any steps whatever in performance of his duty resulting from such application. The petitioner prayed for a rule to be served upon the said district surveyor, as well as the district attorney for the first judicial district, to show cause why a peremptory writ of mandamus should not be issued against the said surveyor, commanding him to make and execute the survey applied for and demanded by the petitioner.

The following is a copy of the certificate referred to:

“No. 838. This is to certify that John S. Duncan has appeared before the board of land commissioners for the county of San Augustine and proved, according to law, that he emigrated to Texas in 1831, and that he is a married man and entitled to one league and one labor of land, upon the condition of paying at the rate of three dollars and fifty cents for each labor of irrigable land, two dollars and fifty cents for each labor of temporal or arable land and one dollar and twenty cents for each labor of pasture land which may be contained in the survey secured to him by this certificate.

Given under our hands this the 3d day of July, 1838.

CHICHESTER CHAPLIN, President,

NATHL. HUNT, Associate Commis'r.

Attest, JOHN C. BROOKS, Clerk.”

The following is a copy of the pleadings in the cause:

“The defendants say that the surveyor for the district aforesaid refused to make the survey applied for,

1st. Because they say that the supposed act mentioned in the said plaintiff's petition, viz.: The act entitled “An act to reduce into one act and to amend the several acts relating to the establishment of a general land office,” alleged to have been passed on the 14th December, 1837, is unconstitutional and void, in this, viz.: It was never approved or signed by the president of the then republic of Texas, but on the contrary was vetoed by him; and the said act was never passed in the manner prescribed by the constitution of the said republic; for they say, that when the said act was vetoed by the president, it was returned to the house in which it originated with his reasons for not approving, and for vetoing the same, which said reasons were never spread upon the journals of said house before the said bill was reconsidered and finally acted upon by said house; and the said defendants further say, that the said act being so disapproved and vetoed, the vote on the reconsideration and final action of the senate upon the same was not recorded by ayes and noes; and this they are ready to verify.

2d. Because they say that subsequently to the passage of the aforesaid act, viz.: On the 29th day of January, 1840, ‘An act to detect fraudulent land certificates,’ etc., was passed by the congress of the said republic, and a board of commissioners, as therein provided for, was duly elected for the county of San Augustine; that said board discharged their duty in said last mentioned county, as required by the provisions of the last mentioned act (being first commissioned and sworn as the law required and fully authorized to act under the law), and that they failed and refused to report to the commissioner of the general land office the certificate described in the plaintiff's petition as one which had been granted to a legal claimant, and also failed and...