Jenkins v. Chambers

• Decision Date: 01 January 1852
• Citation: 9 Tex. 167
• Parties: JENKINS v. CHAMBERS.
• Court: Texas Supreme Court

9 Tex. 167

JENKINS

v.CHAMBERS.

Supreme Court of Texas.

1852.

Where an emigrant settled in Milam's colony in 1831, and when Talbot Chambers was appointed commissioner to issue titles to the families within that enterprise, presented his petition for title to a certain league which he alleged he had selected with the approbation of the agent of the empresario, and which he had improved and cultivated, and the agent of the empresario certified to the commissioner that the petition was true and that the petitioner was one of the colonists introduced by him as agent of the empresario, whereupon (in 1835) the corresponding title was extended: Held, That the title so extended was preceded by no inchoate or equitable title on which it could relate back to any antecedent period, and that it must yield to a prior grant issued subsequent to the settler's occupation.

Even a survey without a concession or order of survey would not be a legal appropriation of the land.

It seems that however locative and descriptive a concession may have been, yet it did not separate the land from the public domain, nor did a subsequent title issued thereon relate back to the date of the concession, where the concession was in the alternative, either for the land particularly described or any other vacant lands which the party interested might select.

Of the authority of the executive, under the 17th article of the colonization law of 1825, to make the grant, of six leagues to a settler, there can be no question. The authority to increase the quantity, that is, to grant a quantity “in proportion to the family, industry, and activity” of the applicant, presupposed the authority to judge of his qualifications. On this subject he was to receive the reports of the ayuntamientos and commissioners; but these were simply to enlighten his judgment, not control it; he was not prohibited from obtaining information from other sources nor from acting on his own personal knowledge of the facts.

It was no objection to the validity of a concession made by the executive in 1830, under the 17th article of the colonization law of 1825, to an applicant residing in Leona Vicario, for lands in a colonial enterprise in the department of Baxar, that the executive referred the petition for information to the ayuntamiento of Leona Vicario and not to the ayuntamiento of the municipality wherein the land was situated.

The executive having authority, under the 17th article of the colonization law of 1825, to increase the quantity, that is, to grant a quantity “in proportion to the family, industry, and activity” of the settler, he was constituted the judge of the qualifications of the applicant, and his decision was final, unless fraud be shown on the part of the grantee. (Note 37.)

Quere? Whether a concession in 1830 for six leagues of land particularly described, or elsewhere, as the party interested might elect, gave the right to the grantee to select the land in two places. However that may be, it certainly gave him the right to select the six leagues particularly described, which included a right to select a less quantity at the same place; and it is not perceived that the having obtained a title to a part elsewhere, even if that were unauthorized and void, would affect the title of the grantee to the residue of the land actually embraced in the grant in the place designated by it. (Note 38.)

Where a concession was made in 1830, and the title, which was issued in 1834 recited that the land was surveyed for the grantee on the 3d day of March, 1832, by the scientific and approved surveyor, Thomas H. Borden, it was held that the presumption was that it was surveyed by order of the alcalde, who was authorized by the concession to put the grantee in possession and issue to him the title, and in consequence of whose failure to complete the title a special commissioner was appointed for that purpose.

The presumption arising from the language of the title being that the commissioner had evidence before him that there had been a legal survey of the land by competent authority, it was not necessary that he should have caused a survey, nor was it necessary that he should embody in the title the authority under which the survey had been made.

The presumption is that the officer authorized by law to issue the title has done his duty and acted in all respects in conformity to law, until the contrary appears. And it is incumbent on the party who would controvert a grant executed by competent authority with the forms and solemnities required by law to repel this presumption by proof.

The colonization laws of 1832 and 1834 did not interfere with concessions previously made to purchasers or settlers, and such concessions were to be consummated in perfect titles the same as if there had been no repeal of the law under which they were made.

We have heretofore decided that the construction of their powers and of the laws which conferred them, adopted and acted upon by the former authorities of the country, must be respected, unless it be clearly shown that they have exceeded their powers or have acted in manifest contravention of law.

By the 36th article of the law of 1834 settlers, after having received the titles to their lands, were authorized to sell, the purchaser being charged with the performance of the conditions. There is therefore nothing in the objection that the grantee in this case did not perform in person the condition of settlement and cultivation.

Where a concession was made in 1830 for six leagues, and the final title in October, 1834, and the payment of the dues was completed in 1839, and a small portion of the land was occupied and cultivated by means of tenants since the spring of 1840, it was held that the conditions had been performed, and that the instruction to the jury that proof of their performance was unnecessary, whether correct or otherwise, was therefore immaterial.

Error from Bastrop. The plaintiff in error brought suit against one Walker and another to recover the possession of a tract of land. The defendant in error, Chambers, intervened, claiming to be the rightful owner of the land, and was permitted to defend. The facts of the case were as follows:

The plaintiff offered in evidence the contract entered into by Benjamin R. Milam with the government of Coahuila and Texas on the 12th day of January, 1826, to colonize three hundred families above the San Antonio road, on the west side of the Colorado river, to the introduction of which the intervenor objected, on the ground that said contract had never been carried out by said Milam, and was revoked and had expired by its own limitation before the execution of the deed to Haggard, under whom the plaintiff claimed, which objections were overruled by the court; said contract was read to the jury, and the intervenor excepted.

The plaintiff then offered in evidence a document purporting to be a commission given to Talbot Chambers by the governor of Coahuila and Texas, dated Monclova, 31st October, 1834, which was granted on the application of Robert M. Williamson, as the agent of Benjamin R. Milam to execute titles, and put the families introduced by said Milam in possession of their lands; to the introduction of which the intervenor objected, on the ground that no such contract existed when said commission was given, and that Elguizabal, who signed the same, was not the governor of said State of Coahuila and Texas, but was a usurper, and other objections apparent; which objections being overruled, the commission was read to the jury as evidence, to which the intervenor excepted.

+---------------------------------+
                ¦Supreme Government of the State¦)¦
                +-------------------------------+-¦
                ¦of Coahuila and Texas.         ¦)¦
                +---------------------------------+
                

To the citizen Talbot Chambers: Don Robert M. Williamson, agent of Don Benjamin R. Milam, having made representation to his excellency the governor, praying for the appointment of a commissioner to put the families, which he has contracted with the supreme government of the State to settle in his colony, in possession of their lands, and to confer upon them titles in property for the same, his excellency has been pleased to make the following decree upon said petition:

MONCLOVA, October 31 st, 1834.

Attending to the fact that the contract celebrated between the government of the State and the empresario Benjamin R. Milam expired by its own limitation on the 25th of January, 1832, the government cannot consider the families that may exist within the territory of said colony as belonging to it; but attending likewise to the fact that said families ought to be provided for according to the 16th article of the colonization law of the 24th of March, 1825, now in force for this case by article 29th of the law of the 26th of March of the present year, this government has commissioned the citizen, Talbot Chambers, of the vicinity of San Felepe de Austin, to put the said families in possession of their lands in conformity with the 16th article of the said law of the 24th of March, 1825, and to confer upon said families the corresponding title, agreeably to the instructions of commissioners issued on the 4th of September, 1827, reserving to the empresario the right to represent to the honorable Congress as soon as its convenes the interruption to the fulfillment of this contract produced by the passage of the law of the 6th of April, 1830. The Secretary of State will communicate this to the party interested, to the commissioner appointed, remitting the corresponding instructions, and the political chief of the department of Brazos, for the respective information of each one, and reserve the original record for the purpose of giving an account of the same to the honorable Congress at its next session.

ELGUIZABAL.

JUAN ANTONIO PADILLA, Secretary of State.

Which I have the honor to transcribe to you by superior order for your information...