Ledyard v. Brown

• Decision Date: 01 January 1864
• Citation: 27 Tex. 393
• Parties: W. J. LEDYARD v. J. H. BROWN AND OTHERS.
• Court: Texas Supreme Court

27 Tex. 393

W. J. LEDYARD

v.J. H. BROWN AND OTHERS.

Supreme Court of Texas.

1864.

NOTE.--S. C., 39 Tex., 402.

In a conflict between two grants issued to colonists, one in 1832 by the commissioner of the colony of DeWitt, and the other in 1835 by the commissioner of the colony of Austin and Williams, which arose from the uncertainty and confusion of the boundary between the colonies, the elder grant will prevail, though it may afterwards appear that the elder grant was located a few miles within the limits of the colony of Austin and Williams.

NOTE.--Elliott v. Mitchell, 47 Tex., 445.

See this case for instructions of the court below, which were held to have properly presented the rule laid down in Hamilton v. Menifee, 11 Tex., 718.

Contracts by colonists to sell the lands embraced in the above named grants before the expiration of six years after their issuance, and to make conveyances therefor so soon as the law would permit, are void. The case of Hunt v. Robertson, 1 Tex., 748, and others, cited and approved.

It has been repeatedly decided by this court that the heirs of the grantee cannot enforce the legal title against parties claiming under such a contract without refunding the consideration received by their ancestor.

The fact that land has not been assessed does not relieve a party from proving that the taxes thereon have been paid, in support of the plea of limitation of five years.

It is the settled practice that where a verdict is found upon special issues alone, that the court cannot look beyond them to any fact apparent in the record in aid of its judgment.

NOTE.--Kuhlman v. Medlinka, 29 Tex., 385.

Where a defendant filed a cross-bill, making his codefendants parties defendant, such codefendants are not required to plead the statute of limitations to entitle them to show that they were in possession under the superior title, and thus repel the conclusion of title in the party filing the cross-bill by a continued peaceable possession.

In such a case, a judgment by default against some of the codefendants in a former suit by the party filing such cross-bill for the same land, does not necessarily entitle the party filing such cross-bill to a judgment against such codefendants in the same suit;--the former still pending, the interlocutory judgment is still within the control of the court, and may be set aside for good cause, and the parties permitted to answer.

APPEAL from Bexar. Tried below before the Hon. George W. Smith.

This suit was brought on the 8th day of March, 1855, by John Henry Brown, Rufus E. Brown, Margaret A. and Russell Brown, heirs of Henry S. Brown, against James Breeding, C. C. DeWitt, Green Penn, Michael Lomax, James Clemmons, Lewis Schulenberg, L. V. Criswell, James R. Burns, Eliza Gibson, John M. and George W. Short, John H. Meicke and William J. Ledyard, for an undivided half interest of a league of land, to have their title quieted, and for partition. On the 15th day of April, 1825, Green DeWitt entered into a colony contract with the Mexican government. By this contract the colony was to commence on the right bank of the Lavaca, contiguous to Austin's colony, and ascend the Lavaca to the upper road going from Bexar to Nacogdoches. On the 25th day of February, 1831, Austin and Williams entered into a colony contract with the same government, the boundaries of which were to commence on the left margin of the Lavaca river, at a point ten leagues from the coast, following said river up the most westerly head, and thence to run in a direct line northwest, to the road leading from Bexar to Nacogdoches. On the 12th day of September, 1832, George W. Cottle received a grant of a league of land as a colonist of DeWitt. On the 10th day of October, 1835, Jesse Richards obtained a grant of a league of land as a colonist of Austin and Williams. These two leagues conflicted, and out of this conflict the controversy in this suit arose.

There were two sets of claimants; one set claimed under the Cottle grant, the other under the Richards grant. John Henry Brown, Margaret Anne and Russell Brown, the plaintiffs, and Eliza Gibson, John M. Short, James Breeding, John H. Meicke, Green Penn, Michael Lomax, James Clemmons, Lewis Schulenberg, Leroy V. Criswell and James R. Burns, eleven of the defendants, claimed under the Cottle grant. W. J. Ledyard, one of the defendants, derived his title to the land in controversy from the Richards grant. It does not appear under whom the remaining defendant, C. C. DeWitt, claimed, no evidence having been introduced in support of his claim. Eliza Gibson, John M. and George W. Short, claimed title to the whole of the Cottle league, as heirs-at-law of the grantee, George W. Cottle. The plaintiffs claimed an undivided half of the Cottle league, under and by virtue of a contract entered into between their ancestor, Henry S. Brown, and the grantee, George W. Cottle. Breeding, Meicke, Penn, Lomax, Clemmons, Schulenberg, Criswell and Burns claimed portions of the Cottle league under R. J. Townes, who had purchased the interest of Brown at a sale made by his administrator.

Ledyard asserted title to the entire interest in the Richards league, and exhibited a chain of transfer from the grantee, Richards, down to him. It appears from the statement of facts that Love, Dancy and McKinney had set up titles to an interest in the Richards grant; that a compromise had been effected between them and Ledyard, which resulted in a partition of the league between them, each executing to the other deeds of release for their respective portions of the others. The portions deeded to Love, Dancy and McKinney did not come in conflict with the Cottle grant.

The bond from Cottle to Brown was executed on the 10th day of July, 1832, and recited that Cottle was entitled to receive lands under the colonization law of the 24th of March, 1825, but was unable to realize said lands for want of money to pay the necessary fees of the surveyor and commissioner, and was in danger of losing his right to said lands, inasmuch as the colony was soon to be closed; that Henry S. Brown had furnished the funds necessary to secure said lands. The bond then continued as follows: “Now for and in consideration of the funds so furnished, I hereby bargain, sell and convey unto the said Henry S. Brown one-half of all lands which I may obtain through his intervention and assistance, and which may be due in virtue of said law; and I hereby bind myself, my heirs and successors unto the aforesaid Henry S. Brown in the penal sum of three thousand dollars, good and lawful money of the province of Mexico, to execute a good and valid title to the same. Said lands have been selected on the waters of Peach creek and Lavaca, better known and called by the name of Cedar Spring league, about ten leagues from Gonzales, and designated in the survey of the colony as No. 5. The conditions of the above obligation are as follows: The aforementioned Henry S. Brown shall pay all necessary expenses whatever in order to put me in full and complete possession of the land. The land shall then be divided in the most equitable manner, so that each one may have an equal quantity of wood, water and land of good and bad quality. The said Henry S. Brown having the right to choose first; and on his complying fully with the aforesaid stipulations, I hereby further obligate myself to convey unto the said Brown the one-half of the above named lands, so soon as I may be authorized legally to do it in good faith, and without violation of the laws; and I specially take upon myself the charge of settling said lands and cultivating them within the six years prescribed by law.”

Brown complied with the conditions contained in the bond on his part, and the grant was issued to Cottle on the 12th day of September, 1832.

The petition of plaintiffs claiming as heirs of Henry S. Brown set out this bond; asserted their right to one-half of the league under it; attacked the titles of the defendants who claimed under Townes and the Richards grant; prayed that John and George W. Short have a guardian ad litem appointed to represent their interest; that the Cottle league be equally divided between Eliza Gibson and plaintiffs; for judgment against the other defendants for damages, and for writ of possession.

Criswell and Schulenberg filed a general demurrer; set up title in themselves to portions of the land in controversy and pleaded the general denial. Eliza Gibson pleaded “not guilty,” and that the Cottle league was the property of herself and of the minor heirs of Melezina Short, deceased.

Ledyard pleaded general demurrer and general denial, and specially answering, set up title in himself, and alleged that the Cottle grant was located within the limits of Austin's colony, when Cottle was a colonist of DeWitt; that so far as the Cottle grant conflicted with the Richards grant, it was null and void.

James Breeding demurred and pleaded “not guilty,” and alleged that the heirs of John O. Bar were interested, and prayed that they be made parties.

The marriage of Eliza Gibson and James Byrd, and the death of the latter, were suggested. Her subsequent marriage with John Y. Headstream was suggested, and the latter made a party. Meicke demurred and pleaded “not guilty.”

On the 19th of May, 1858, Ledyard filed an “amended answer and cross bill,” in which he asserted title to all the land in controversy; reiterated the allegations as to the conflict between the Cottle and Richards grants; and alleged a conflict between the Richards grant, claimed by him, and the land claimed by Penn, Lomax, Clemmons, DeWitt, Eliza Gibson, and the heirs of Melezina Short, but none as to the other parties to the suit. He further set up the limitations of three, five and ten years, and prayed for judgment against the plaintiffs, and against the defendants claiming adversely to him, and that his title be quieted. He further pleaded in bar “a judgment by default by him...