Johnson v. N. Warren Newman

• Decision Date: 01 January 1875
• Parties: MARGARET J. JOHNSON ET AL. v. N. WARREN NEWMAN ET AL.
• Court: Texas Supreme Court

43 Tex. 628

MARGARET J. JOHNSON ET AL.

v.N. WARREN NEWMAN ET AL.

Supreme Court of Texas.

1875.

APPEAL from Henderson. Tried below before the Hon. John G. Scott.

This is the second appeal in this case. (35 Tex., 166.)

The facts are fully stated in the opinion, except as to the testimony relied on as supporting the pleas of limitation and adverse possession not discussed by the court.

Thomas B. Greenwood, for appellants.

Walton, Green & Hill, also for appellants.

The case is this: Mitchell sold to Jack, in September, 1836, his right to his headright league and labor of land, which by the constitution of the Republic of Texas was vested in him. This was before the passage of the land law of 14th December, 1837, which provided a method by which the right given by the constitution should be ascertained. (General Provisions, sec. 10.) The law of 14th December, 1837, was not put in operation until February, 1838, or, as stated by counsel in Walters v. Jewett, 28 Tex., until March, 1838. It is at any rate certain, from the extensive machinery created by the act, that it could not have been put into practical operation before the month of February. (Hartley's Dig., 580.)

Mitchell, after his sale to Jack, went into a different jurisdiction, and on the first day the land office was opened, or immediately thereafter, in the county of Houston, proved his right in his own name before that board, and from appearances, immediately after receiving the certificate, sold it to Kirchoffer, under whom the defendants claim.

Admitting that both parties were equally innocent, the question is, who has the better right: those claiming under Jack or those claiming under Kirchoffer?

The first position in opposition to the plaintiff's right to recover is that the right of Thomas S. Mitchell in September, 1836, was not property, and was not the subject of sale so as to pass title to the assignee.

That it was property, and a sale of it passed the title, it seems to us is beyond dispute.

Section 10 of the general provisions of the constitution of the Republic of Texas relating to this subject expressly recognizes the right to be property, and not only protects the assignments theretofore made, but also those of future assignees. Its words are:

“Every head of a family shall be entitled to one league and labor of land, and every single man of the age of seventeen years and upwards shall be entitled to one-third part of one league of land. All citizens who may have, previously to the adoption of this constitution, received their league as heads of families and their quarter of a league of land as single persons, shall receive such additional quantity as shall make the quantity of land received by them equal to one league and labor and one-third of a league, unless by bargain, sale, or exchange they have transferred, or may henceforth transfer, their right to said land, or a portion thereof, to some other citizen of the Republic; and in such case the person to whom such right shall have been transferred shall be entitled to the same as fully and amply as the person making the transfer might or could have been.”

That the word “unless” applies to the whole granting clause instead of applying only to the latter part of it, giving an augmentation to those who had received leagues as heads of families and quarter of leagues as single men, is manifest. Because to so restrict it would work great injustice to such persons as had sold their leagues or their quarter of leagues, and would make the previous purchaser of the right of such person entitled to the augmentation in his own name, a construction which would do violence to any rule of right which might be invoked, inasmuch as the object of the grant, viz: the original claimant, was the person in whose right the benefit was to accrue, and it would result in creating a benefit in his right which did not previously exist, and immediately giving such right to another who never bargained for it or gave any consideration therefor.

Such a construction is so repugnant to common justice and common sense that we will not dwell on the proposition. To bind the conclusion drawn by us it is only necessary to refer to the word “hereafter” in the clause, giving the power to sell by those to whom grants were already made, their augmentation to be acquired by the Constitution.

By what reasoning can it be shown or established that the Constitution intended to make a difference in the power or right of the classes of beneficiaries provided for by the section? The reason applying to all is the same, and the words are so used that we must conclude, as before stated, that the word “unless” applies to the whole granting clause of the section, and all persons receiving grants under it had the same power of alienation of their rights acquired thereby.

It follows that the word “unless,” used in the clause cited, refers to the whole grant made in the article, and gives it a peculiarly forcible meaning, for it not only recognizes the power to transfer the right given, and makes the right of the assignee equal to that of the person who sold to him, but it almost amounts to a prohibition against the vendor to procure the issuance of the right in his name.

The practice under this law, as well as all other laws in which the Government gives the title, has been that if in the issuance of the right or paper evidence of title to land it should be issued in the name of the vendor, the title will at once inure to the benefit of him who had title, as the Government will not issue a second and separate title to the vendee, but will rather leave him to proceed against the person who has wrongfully procured the title as a trustee, who holds for the benefit of the true owner. (Silver v. Ladd, 7 Wall., 228.)

The land law of December 14, 1837, (sec. 12, Hartley's Dig., art. 1848,) expressly recognizes the sale of rights to land, and authorizes the issuance of certificates to the assignee; as it provides (page 584) that persons claiming a right to land “by inheritance or purchase” shall not be bound to take the oath required of the person whose right is represented by them; and again in the same section this expression occurs: “No purchaser of a headright shall be entitled to receive a grant as assignee or in the name of the original claimant, unless,” etc. This act, though passed after the sale of the right in this case, shows conclusively the cotemporaneous construction of the law, and it was binding on the claimant and all others under him, inasmuch as it was under this law the certificate was issued.

But, independently of this, as a question of law, we have abundant authority in the decisions of our court. (Emmons v. Oldham, 12 Tex., 18;Babb v. Carroll, 21 Tex., 769;Smithwick v. Andrews, 24 Tex., 488;Graham v. Henry, 17 Tex., 167.)

The last case is so full and clear upon the question of the assignment of such rights that the special attention of the court is directed to it. In that case, which was for the sale of a conditional headright certificate of the second class, the court, after showing the distinction between certificates of the second and third class, say: “Whatever exclusive right a man has in anything, he has a right to dispose of absolutely as he pleases, provided he makes no disposition of it prohibited by law. * * * Hence, any incipient title or contingent interest which is susceptible of being ripened into a title to lands may be assigned; and such has been the usage in this and other countries. It has never been supposed necessary to consummate the title before the right could be assigned.” And, continuing, the court further say: “Of course the interest or right of the assignee would ultimately depend upon the performance of the precedent conditions by the grantee. * * * But there is nothing in the nature of the interest * * * to prevent its assignability.”

And the rules here so clearly laid down are recognized by the elementary writers, whether the property sold in this case be regarded as a chattel or in the nature of realty. (Benjamin on Sales, pp. 57, 58; Greenleaf's Cruise's Digest, Book 4, marg. p. 89.)

The power of sale being established beyond dispute, the next inquiry is as to whether the title of the purchaser can be disturbed by any act of the seller or vendor.

If the property sold to Jack by Mitchell be regarded as a chattel, in accordance with the ruling in Randon v. Barton, 4 Tex., 289, then the rule is very clearly expressed by Mr. Benjamin in his work on Sales, p. 4, (Dodd & Co. v. Arnold, 28 Tex., 101,) where he says: “In general no man can sell goods and convey a valid title to them unless he be the owner or lawfully represent the owner. * * * A person, therefore, however innocent, who buys goods from one not the owner, obtains no property in them whatever,” except in some cases noted, and the exceptions noted are market overt, which does not exist in this country, sale by pawnee, and the like.

Nor could the doctrine of agency be brought to bear so as to give the defendants a title, because an agency must grow out of some contract, express or implied, which did not exist here. Nor can a title grow out of the doctrine of possession of chattels, because the right to land sold by Mitchell was a vested right in him by the Constitution and laws, and the subject of assignment and the sale made was a full and complete divestiture of his right, and the written deed executed and delivered was a delivery of the thing sold as far as it was possible to be delivered, and was one which by the laws was fully authorized, and which could be made effectual as to the thing sold without any further act to be done by the seller or vendor; for it is provided in the law under which the certificate was obtained (sec. 12 of the act 14th December, 1837) that in case the right to the certificate was owned by a purchaser, such purchaser was not bound to take the oath which was required of the original claiman...