Johnston v. Smith

• Decision Date: 01 January 1858
• Citation: 21 Tex. 722
• Parties: A. S. JOHNSTON v. ELBERT A. SMITH AND ANOTHER.
• Court: Texas Supreme Court

21 Tex. 722

A. S. JOHNSTON

v.ELBERT A. SMITH AND ANOTHER.

Supreme Court of Texas.

1858.

It is settled by this court that neither settlement nor the consent of the federal executive of Mexico is necessary to the validity of a grant made by the special commissioners under the 32d article of the law of the 26th March. 1834. 14 Tex. 146;16 Tex. 616.

The grantee of land was permitted by the 36th article of the law of 1834 to sell the land at any time after obtaining title, and no subsequent act of his could affect the title of his vendee, who held it independently of him, and subject only to the charge of fulfilling the duty of the grantee to the state, in his own person. 12 Tex. 18, 27.

If the grantee abandoned the country before selling the land he thereby lost his right to it.

A bona fide purchaser of a title issued by competent authority in the forms of law, and valid upon its face, must be deemed to have a good title until the vice or defect which will have the effect to annul it, appears.

The fact that the grantee had not introduced his family, and that he left the country after obtaining the grant, is not evidence of fraud to authorize the annulling of the grant. 7 Tex. 384;11 Tex. 467;15 Tex. 590;16 Tex. 395.

The intention of the grantee, to have any influence on the validity of his grant, must be the intention he conceived at the time he obtained it; and what he did or intended afterwards could only be material as conducing to show the state of his mind at that time.

It seems that the subsequent conduct of a grantee cannot be received to impeach a grant regularly issued by competent authority in the hands of a purchaser. 10 Tex. 503;15 Tex. 590;28 Tex. 134.

The issue of a grant precludes inquiry as to the merits and qualification of the grantee. 11 Tex. 656, 708, 717.

No case in this court has decided whether parol evidence is to be received at any distance of time to impeach a grant or patent regularly issued by competent authority, and in the hands of an innocent bona fide purchaser, on the grounds that such grant or patent was obtained by the grantee upon false and fraudulent representations made to the officers of government. 1 Tex. 730;9 Tex. 598;11 Tex. 460;22 Tex. 155;26 Tex. 325;28 Tex. 134.

The government may take measures to annul a grant obtained by fraud.

Considerations of public policy and justice may not forbid the admission of parol evidence to impeach a grant upon such grounds while the grant remains in the hands of the original grantee; if the assault upon the title be not too long delayed until the holder has lost the original evidence of his right.

¹Appeal from Harrison. Tried below before Hon. W. W. Morris.

Action of trespass to try title.

It was admitted on the trial that the appellant had a regular chain of title to the land in controversy from the grantee; that he purchased in good faith and for a valuable consideration in the year 1840; that he was then a citizen of Texas and has so continued; that defendants were in possession of a part of the land sued for.

It was admitted by the appellant that the land in controversy was situated within the twenty border leagues; that the grantee of said land was a native of Louisiana or Tennessee, and came to Texas in 1835; that he did not introduce his family into the country and that he did not remain here longer than three weeks, and then returned to the United States; and that he has never been in the country as a citizen since that time; and that he and those who claim under him have never taken possession of said land, or cultivated it. After these admissions the appellant introduced in evidence a title executed by George W. Smyth, special commissioner to Samuel Monday, under who he claimed and closed.

The appellee then introduced a headright certificate, admitted to be genuine and the property of said appellee, and a survey by virtue of it made on said land, or a portion of it, admitted to be regular.

The judge charged the jury, 1st. “That a purchaser for a valuable consideration, and without notice of fraud in the obtaining of a grant by a grantee, was in no better position in an action to try title to maintain the same than such fraudulent grantee.” 2d. “That it devolved on the plaintiff to prove that the consent of the supreme executive of Mexico had been given to the issuance of said grant offered and read to the jury, and it afforded no evidence that such consent had been obtained.” To which appellant excepted.

There was a verdict and judgment for appellee.

Clough & Lane, for appellant.

Henderson & Jones, for appellee.

WHEELER, J.

The grounds on which the defendants, by their answer, sought to impeach the validity of the grant, under which the plaintiff claims, were, 1st. That the grantee did not enter upon and cultivate the land within six years, and that he abandoned the country before the expiration of that period. 2d. That the consent of the executive of New Mexico was not obtained to the making of the grant, the land lying within the border leagues.

The grant, under which the plaintiff claims, was issued by the Commissioner Smyth, under the 32d article of the law of the 26th of March, 1834; and the decision of the court in the case of Blount v. Webster, 16 Tex. 616, has settled, in reference to grants of the character of the present, that neither settlement, nor the consent of the federal executive of Mexico was necessary to their validity. Smith v. Power, 14 Tex. 146. It is proper to mention that this case was tried before the decision in this court in Blount v. Webster, which may account for the error of the court in charging the jury, contrary to the doctrine established in that case, to the effect, that the consent of the executive of Mexico was essential to the validity of the grant.

The only ground of objection to the plaintiff's title, suggested in the answer, which is not disposed of by the decision in Blount v. Webster, is the alleged abandonment of the country by the grantee. It is insisted that this is a fatal objection to the plaintiff's title. And so it would be, if the grantee were still the holder of that title, or if he had not parted with it before he abandoned the country. But by the 36th article of the law of 1834, under which this grant was issued, it is provided that the grantees who have received their titles to their lands, “may sell them at any time, and the purchaser shall remain with the charge of fulfilling the duty to the state.” Laws of Coah. and Tex. p. 252, art. 36. There was no restriction upon the power of alienation by this or any subsequent law. Emmons v. Oldham, 12 Tex. 18, 27. The grantee was free to sell his land at any time after obtaining the title, and no subsequent act of his could affect the title of his vendee. Having parted with the title, he no longer had any power over it; and it was unaffected by his subsequent abandonment of the country. It had vested in the purchaser, who held it independently of him and subject only to the charge of fulfilling the duty of the grantee to the state in his own person. If the purchaser did no act to forfeit his title, it could not be forfeited in his hands by any act of his vendor. This case is plainly distinguishable from the cases of Holloman v. Peebles, 1 Tex.; Horton v. Brown, 2 Tex. and other cases of titles issued under prior laws, which contained the prohibition of alienation for a period of years, and where the original grantee, or his heirs, have sought to recover the land, after an abandonment of the country.

It does not appear when the grantee sold to Brookfield. But if it was after he abandoned the country, and thereby lost his right, it devolved on the party impeaching the title to show it. The plaintiff is admitted to be a bona fide purchaser of a title issued by competent authority, in the forms of law, and valid upon its face; and to have a regular claim of legal transfer from the original grantee to himself; and he must be deemed to have a good title, until the vice or defect, which will have the effect to annul it, appears. This was the elder, and therefore the superior title, and must have prevailed, under the pleadings and evidence, but for the error in the charge of the court; which effectually precluded a recovery.

It is insisted, however, that the plaintiff's title is to be deemed fraudulent and void, because grantee did not bring with him his family to the country, and left shortly after obtaining the grant. And the court appears to have assumed, in the charge to the jury, that the title was void upon this ground. It might be a sufficient answer to this objection to the title that it was not pleaded. There was no allegation in the answer of fraud in obtaining the grant; and, under the pleadings, that issue could not properly be submitted to the jury. But as the case will be remanded, and this defense may be pleaded and relied on upon another trial, it is proper that it should receive some notice at present.

The fraud which will authorize the annulling of a grant in any case, is not a presumption or conclusion of law: in the language of Chief Justice Marshall, it is “not legal and technical, but actual and positive fraud in fact, committed by the person who obtained it.” 3 Pet. 341. Fraud is not to be presumed but must be proved. If it existed in this case, it must have consisted in the...