Marsh v. Weir

• Decision Date: 01 January 1858
• Citation: 21 Tex. 97
• Parties: SHUBAEL MARSH v. REUBEN L. WEIR AND ANOTHER.
• Court: Texas Supreme Court

21 Tex. 97

SHUBAEL MARSH

v.REUBEN L. WEIR AND ANOTHER.

Supreme Court of Texas.

1858.

It has never been held necessary that the consent of the federal executive of Mexico, should appear on the face of the title of a colonist, to land granted under a contract to colonize within the border or coast leagues. The contrary has been repeatedly decided. It is sufficient that the consent was given to the contract to colonize the territory comprising the grant. 3 Tex. 510;11 Tex. 708;23 Tex. 29.

The mode of constituting a family, adopted in this instance (by associating two or more single men) for the purpose of making a grant under Austin's first contract, has been heretofore recognized, and the grant held valid.

Where several single men were associated as a family, and a grant of a league of land was made to one of them as the head of a family (a practice adopted under Austin's first contract), by whom their proper proportions were conveyed to his associates, the latter took as colonists; the conveyances to them were not subject to the provision in restraint of alienation; and it would seem that each one was bound to perform the conditions annexed to headrights, by the law under which the grant was made.

Where a league of land was granted to A, ostensibly as the head of a family, but really for himself, as a single man, and in trust for B, to whom he conveyed his part; and the ayuntamiento declared B's land vacant, because of his abandonment of the country; there was nothing in the relation of A to B, that would prevent the former from receiving for his own benefit, a grant of the same land, as an augmentation.

The fact of abandonment (of the country), and of the consequent forfeiture, is conclusively established by the judgment of a competent tribunal (the ayuntamiento). It is no objection to the validity of the judgment, that the grantee was not served with notice. He had gone beyond the reach of process; and morever the proceeding was in rem, and acted directly upon the status of the thing. 1 Tex. 673.

Quere, where the concession of an augmentation to a colonist of Austin's first colony, directed the alcalde of the municipality to extend the title, whether the commissioner of Austin's contract for the colonization of the littoral leagues (within which the land lay) could lawfully extend the title.

“Color of title,” defined in our statute of limitations, to be “a consecutive chain of transfer from or under the sovereignty of the soil, down to him, her or them in possession, without being regular, as if one or more of the memorials or muniments be not registered, or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty,” is very different from that which has been given by courts, to these terms; that is, “that which in appearance is title, but which in reality is no title;” and the statute having defined the terms, we must look to the statute for their meaning. 13 Tex. 128;28 Tex. 268.

Where the ayuntamiento recalled the title and declared land vacant, on the ground of abandonment of the country by the grantee, or of his failure to perform the conditions of the grant, such grant cannot go to constitute color of title, as defined in our statute of limitations. ?? Tex. 691.

Appeal from Brazoria. Tried below before the Hon. Joseph C. Megginson.

Trespass to try title, by Shubael Marsh against Reuben L. Weir, to the half of a league of land originally granted to said Marsh in 1824; commenced February 27, 1847. Joseph M. McCormick, who was the landlord of Weir, became a party defendant. Defendants pleaded not guilty; claimed title to the lower quarter of said league, by sale and conveyance, in 1824, from said Marsh to John McCormick, of whom defendant Joseph M. McCormick was sole heir; adverse possession under title and color of title for three years before the institution of this suit; adverse possession, paying taxes thereon, under deeds duly registered for five years next before the institution of this suit. Plaintiff replied that John McCormick abandoned the country in 1825, and never returned to it; that his pretended title to the land was forfeited by such abandonment, and so declared by the practical authorities of the country; and the land afterwards granted to plaintiff. And for further reply, plaintiff alleged that he never received any consideration from John McCormick for said pretended sale; and that if said McCormick ever had title to said land, the same was acquired by him as a colonist.

At the trial in 1852, the plaintiff gave in evidence a grant dated July 8, 1824, made by the Baron de Bastrop as commissioner of Austin's first colony, to him, Shubael Marsh, as a colonist, and head of a family, for a league of land within the littoral leagues. Austin's first colonial contract was made with the executive government of Mexico.

The defendants read in evidence a deed of sale, from Marsh to John McCormick, dated December 28th, 1824, of the lower quarter of said league, purporting to be in consideration of forty-one dollars and two reals paid to said Marsh. Defendants then read admissions of plaintiff, to the effect that Joseph M. McCormick, one of the defendants, was the heir at law of John McCormick; that said John McCormick died previous to the year 1840; that R. L. Weir, one of the defendants, is in possession of said lower quarter league, as the tenant of said Joseph M. McCormick, cultivating a portion thereof. The defendants then proved that Weir went on the land in controversy, and commenced his improvement on the same between the 15th and last of September, 1842; built a log cabin fifteen or sixteen feet square, with a shed room to it, and cow pens; moved thereto in October, 1842; and in the winter after, inclosed a small field.

The plaintiff read in evidence Austin's contract for the colonization of the littoral leagues, in 1828, showing the assent of the federal government thereto.

This was all the evidence admitted. Verdict and judgment for the defendants. Motion for new trial overruled, etc.

It appeared by bill of exceptions, that the plaintiff offered to prove that the league of land granted to him as the head of a family in 1824, was in fact granted to him for himself and in trust for the said John McCormick, David Shelby and James Frazier; that there being no authority (as was said by witness Samuel M. Williams, who had charge of the land office in Austin's colony, from its organization in 1824 until the revolution in 1835), for granting less than a league, before the law of 1825, Stephen F. Austin, with the approbation of the commissioner and of the government, being unwilling to grant leagues to single men without discrimination, adopted the practice of uniting two or three or four in a single grant, sometimes naming them all, and sometimes making the grant to one alone, with the agreement that he should convey the proportions intended, to the others; that the conveyance from Marsh to McCormick was made in pursuance of such agreement, and that the consideration stated therein was McCormick's proportion of the fees for issuing the title, which were paid in fact to the officers, and not to Marsh; that McCormick's quarter was declared forfeited because of his abandonment of the country, by the ayuntamiento in December, 1830; in proof of which the record of the proceedings of the ayuntamiento were offered in evidence; that said McCormick did in fact abandon the country in 1825 or 1826; and that on the 14th of December, 1831, by virtue of an augmentation concession of a half league, from the governor of Coahuila and Texas, to said Marsh, a title was extended by Commissioner Stephen F. Austin to the said Marsh, for a half league including the quarter forfeited by John McCormick. All of which testimony was excluded, on the ground that the assent of the federal government did not appear upon the face of the augmentation concession of the half league to Marsh, by the governor of Coahuila and Texas, to sustain which grant the other evidence was offered. The augmentation concession directed the municipal alcalde of the municipality to which pertained the land which the grantee should select, to put him in possession of it and extend the title, etc.; whereas the possession was given and the title extended by Stephen F. Austin, as commissioner of his new colony, embracing the littoral leagues.

After the court excluded the plaintiff's evidence, plaintiff objected to the evidence of the defendants to sustain the pleas of limitation, and offered to let a general verdict go against him; but the objection was overruled and the evidence admitted; plaintiff excepting. It appeared by a bill of exceptions, that plaintiff objected to the admission of the deed from himself to McCormick, on the ground that it was illegal, being made before the plaintiff had acquired full property in the land.

R. Hughes, for appellant.

I. The court will not, with a hypercritical spirit, reverse matters determined by former authorities, or disturb rights founded upon their action or adjudication. Holliman v. Peebles, 1 Tex. 707;Hancock v. McKinney, 7 Id. 384;Jenkins v. Chambers, 9 Id. 235.

II. The ayuntamiento was the proper authority to recall the titles, where the conditions had not been performed. Holliman v. Peebles, 1 Tex. 707; Col. L. of 1825, art. 26. And in cases of abandonment of the country, as being similar. Rule 36, 2 Partidas, 1248; 1 Febrero Mex. 73 and 4 Av. 2; see Yates v. Jams, 10 Tex. 175-6.

III. The 7th article of the instructions to commissioners, of the 4th of September, 1827, which directed the commissioners not to give possession to any colonist, settled or intending to settle, within the border or coast leagues, unless there was presented to him a special order of the government, wherein should be manifested the approbation of the national government, was evidently intended to apply to individual settlers,...