Mason v. Heirs of Russell

• Decision Date: 31 December 1847
• Citation: 1 Tex. 721
• Parties: JAMES MASON v. THE HEIRS OF HENRY H. RUSSELL
• Court: Texas Supreme Court

1 Tex. 721

JAMES MASON

v.THE HEIRS OF HENRY H. RUSSELL

Supreme Court of Texas.

December Term, 1847.

Appeal from Shelby County.

On a motion for a new trial, the affidavits of jurors going to impeach the validity of their verdict on the ground of their own misconduct should not be entertained.

Where the commissioner of a colony, under the colonization law of Coahuila and Texas, issued a grant to land: Held, that parol evidence might be introduced to show the nullity of the grant, by proving that the land thus granted did not lie within the territorial limits of such colony. [7 Tex. 76;8 Id. 226;9 Id. 598;20 Id. 612; 25 Tex. S. 409.]

This was a suit brought by the appellees against the appellant at the spring term, 1841, to recover a tract of land a title to which was issued by George Antonio Nixon, commissioner of Zavalla's colony, to Wm. Defee, on the 13th February, 1835, and claimed by the appellees under a regular chain of transfer from said Defee.

The defendant claimed title by actual settlement on the land in question in 1831, and under a survey, including his improvements made in January 1838, by virtue of a headright certificate issued to him by the board of land commissioners of Sabine county. He also produced in evidence an order of survey from Nixon to himself prior in date to Nixon's title to Defee, but no survey appeared to have been made under such order.

There was a verdict and judgment for the plaintiffs.

The most material facts of the case will appear in the opinion of the court.

David S. Kaufmann, for appellant, contended,

1. That the testimony of Geo. W. Smyth and others should have been admitted. The objection made to the admission of this testimony was, that it went to attack the validity of the grant to Defee. An ambiguity existed in regard to the road described as the northern boundary of Zavalla's colony, and the object of the testimony was to explain this ambiguity, and thereby show that the land in controversy was beyond the limits of said colony -- that it was situated in the county of Sabine and that the whole of said county was included within the twenty border leagues, over which the empresario and commissioners had no jurisdiction. It was competent to show, in this manner, that the title to Defee was void ab initio -- that it was an absolute nullity.

2d. Mason, according to the testimony, was in possession of the land at the time of the transfer from Defee to Huffmann, from Huffmann to Canfield and from Canfield to Russell. Lands in actual adverse possession cannot be transferred to the claimant thereto. The claimant must first recover the land into possession.

3. The jury disputed about some facts given in evidence and the judge solved their doubts by reading a portion of his notes in regard to the evidence. If he had purported to have taken down all the evidence, or if he had even read all his notes, the objection might not be so strong. As it was, it must be regarded as erroneous.

4. The court improperly refused to permit defendant to show fraud in plaintiff's title.

5. A new trial should have been granted for reasons apparent upon the record.

J. Webb, for appellee, contended:

1st. That supposing an adverse possession in Mason, at the time that Defee sold the land, such adverse possession did not affect the validity of the sale.

The case of White v. Gay's Executor, decided at the last term of this court, is believed to settle this point; but if not, the authorities applicable fully sustain it.

By the civil law, which was the law in force when the sale was made, sales of litigious rights (which are forbidden) are those made of property about which there is a suit actually pending at the time. The property must be in contestation in some judicial proceeding. Just. 451, 491; Pothier on Sales, sec. 585; Pothier on Obl. 550; 1 Domat, 69; 9 Mart. 183; Civil Code La. art. 2623; Seymour v. Bourgart, 12 La.; Benj. & Slid. Dig. “Litigious Rights.”

2d. That it was not proper to introduce testimony to show that the grant to Defee was without the colony of Zavalla and therefore void. It is true that a grant made without authority is void, but the question is, how is the fact to be made to appear, when the objection does not appear on the face of the grant? We contend that it can only be inquired into by scire facias or some other direct proceeding to vacate the grant. 4 Bibb, 329.

Parol testimony cannot be admitted to contradict a deed. It cannot be received for the purpose of introducing matter, dehors the deed, in order to defeat it in a collateral investigation. 11 Johns. 201, 215; 19. Wend. 320; 15 Id. 561; 1 U. S. Cond. 337.

In the grant to Defee there is no ambiguity, either latent or patent. There is nothing for explanation. See also Phil. Ev. old ed. p. 411; 9 Mart. pp. 38, 39, 40, 41.

A patent under the seal of the United States or a state (and this grant is equivalent to either) is, according to the language of the supreme court in the Arredondo case, conclusive proof of the authority to make the grant, and its exemplification is a record of absolute verity. If then a grant or patent be a record, it is clear that collateral testimony cannot be received to impeach it. 3 Stark. Ev. 1278; 2 Pothier, by Evans, p. 118, and note A.; 2 Bl. Com. 299; 10 Johns. 23, 24, 25.

3d. The testimony was taken down in substance by the judge, at the request of the defendant, and there was no impropriety in his reading, at the request of the jury, a portion of his notes in regard to evidence about which their recollection may have differed.

Such testimony had all the verity of testimony taken upon interrogatories, and had it been so taken, there is no doubt that when the jury returned into court to be informed as to the fact testified to, which had escaped their recollection, the interrogatories and answers might have been resorted to, to inform them.

4th. There was no error in refusing to set aside the verdict and grant a new trial, upon the affidavits of some of the jurors as to the irregularities of their proceedings, while out and considering of their verdict. Jurors cannot be allowed to impeach their own verdict. 4 Johns. 487;1 Wend. 297;1 Bibb, 399, 400;4 Wash. C. C. 32, 35.

V. E. Howard, contra, contended:

1. Under the colonization law of 1825, articles 4, 16, 18, the new settler had a right to designate any vacant land. Vide, also, Decrees, 71, 297, 306. The order directs the surveyor to survey such vacant land as Mason should point out. The presumption must be that he pointed out his possession. Indeed, the possession, under the law, should be considered the “designation.” Under the authority of O.Hara v. United States, 15 Pet. 283, a survey would be presumed in favor of the possession. Landry v. Martin, 15 La. p. 2.

2. This land having been appropriated by the possession of Mason, it was erroneously granted to Defee, and comes under the 21st article of the colonization law of 1825, and article 30 of 1832, p. 193. The grant to Defee was not conclusive.

3. It was error to strike out the pleas charging fraud in the plaintiff's grant.

4. It was error to refuse the defendant permission to prove that the grant was out of Zavalla's colony, as, in that case, the defendant must have recovered on his possession and pre-emption right. Gen. Prov. Const. sec. 10. It is always competent to prove a want of power and jurisdiction in the officer. 3 How. (U. S.) 761. The commissioner had no authority out of his colony, and any title issued by him out of the same was void. 2 How. (U. S.) 317;13 Pet. 511, 450.

5. The mesne conveyances made while Mason was in the adverse possession are void and conveyed no title. Williams v. Jackson, 5 J. R.; 5 Pick. 348;6 Mass. 418. It was an offense at common law, and therefore in force here. 4 Kent, 446; 5 Pick. 353; 2 Story Eq. sec. 1048 and note pp. 383, 387; 4 Bl. 135; 11 Mass. 549.

6. The conveyances to the present plaintiff were contrary to the colonization law of 1832, and therefore void.

7. The appellant, having been in possession ten years before suit brought, was entitled to his land by virtue of the statute of limitations. Ricardo v. Williams, 7 Wheat.; 2 Phil. Ev. 356. And after that length of possession the court should presume a survey if not a grant from Coahuila and Texas. 4 N. H. 321; 9 Mart. 526; 4 Wash. C. C. 356.

LIPSCOMB, J.

The appellees brought their suit against the appellant to recover land, and obtained a verdict and judgment from which an appeal was taken to this court.

There was a motion for a new trial on several grounds stated. The motion does not appear to have been acted on by the court below. The appellant contends, and we think justly, that as the motion was not granted, it was overruled by the operation of law. It is not, however, important, to the interest of the parties, as the most important points will arise on the face of the record. We shall consider, however, the motion for a new trial as overruled; and, if it was a case that required it, would reverse the judgment, if, in our opinion, the court below erred in so doing. We see nothing of error in the overruling the motion for a new trial, from the evidence that was permitted to go the jury; the correctness of the opinion of the court in rejecting evidence will be noticed hereafter. One of the grounds only for a new trial will be considered. The affidavits of several of the jurors going to show their own misconduct were presented to the court as grounds in support of the motion. The permitting such evidence cannot be too strongly reprobated as leading to improper tampering with the jurors to procure such affidavits after verdict, and further, a juror so shamelessly disregarding the obligation of his oath as to be guilty of such irregularities, after a cause has been submitted to him, justly deserved punishment, and ought to have received it. Such affidavits when offered should only have been received and made a part of the records of the court, as the grounds of...