McGuire v. Sadler, 20736.

• Citation: 337 F.2d 902
• Decision Date: 19 October 1964
• Docket Number: No. 20736.,20736.
• Parties: L. L. McGUIRE, Appellant, v. Jerry SADLER, Land Commissioner, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

337 F.2d 902 (1964)

L. L. McGUIRE, Appellant, v. Jerry SADLER, Land Commissioner, et al., Appellees.

No. 20736.

United States Court of Appeals Fifth Circuit.

October 19, 1964.

COPYRIGHT MATERIAL OMITTED

L. L. McGuire, Midlothian, Tex., for appellant.

Glenn R. Lewis, Lewis, Blanks, Thigpin, Logan & Steib, San Angelo, Tex., for defendant M. D. Bryant.

J. Milton Richardson, Asst. Atty. Gen. of Texas, Waggoner Carr, Atty. Gen., J. S. Bracewell, Asst. Atty. Gen., Austin, Tex., for appellee Jerry Sadler, Com'r of General Land Office.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The district court dismissed this case for want of jurisdiction. We reverse.

L. L. McGuire, the plaintiff-appellant, brought suit in proper person against Jerry Sadler, the Land Commissioner of Texas, and a number of other defendants. In a 27-page complaint McGuire alleged that he is the owner of certain land in Presidio County that the Commissioner, under color of law, is about to sell as part of a conspiracy to deprive him of his land and to deprive others similarly situated of their land because of newly found mineral potential in the county.

Presidio County is on the Rio Grande River in a sparsely developed region in southwest Texas. The surveys of the area are old and of questionable reliability. Texas law provides that any vacant land never sold by the State belongs to the Texas School Fund.

Under Texas Civil Statutes (Vernon's 1948), Art. 5421c, any person interested in purchasing unsurveyed, vacant School Fund land may apply to the Land Commissioner for purchase of the land. The law requires the Land Commissioner to appoint a surveyor to survey the land and to give public notice to all interested parties, including the owners of the abutting land. If, after a public showing of the survey for a statutory period and after a public hearing, the Land Commissioner should determine that the land is not privately owned, the applicant may purchase the land at a price set in accordance with the statute. Any party aggrieved by the proceedings before the Land Commissioner may file suit, in accordance with Art. 5421c, § 6(j), in the Texas District Court for the county in which the land is located. In such a suit the Attorney General intervenes for the State and any final judgment is binding upon the State.

According to the complaint, M. D. Bryant, a member of the alleged conspiracy, filed three applications to purchase vacant School Fund land in Presidio County. The plaintiff alleges that Sadler, the Commissioner, knew of the plot to defraud the plaintiff and hired one Perry Thompson a professional surveyor, for the purpose of preparing a fraudulent survey based on "spurious monuments". This survey, so the plaintiff says, changes many boundaries, diminishes the size of the plaintiff's holdings, and leaves him with the least desirable part of what he originally owned. At the hearing, over the plaintiff's objections, the Commissioner determined that the land in question was indeed Texas School Fund Land. Accordingly, the Commissioner sold some of it to Bryant and his co-conspirators. The plaintiff chose not to follow his statutory remedy in the Texas courts. Instead, he filed this suit praying for rescission of the original sales and for an injunction against the sale of land within the Thompson survey. The plaintiff cast the suit in the form of a class action brought on behalf of all of the absentee owners in Presidio County similarly deprived of their property as a result of this allegedly fraudulent survey.

The standards generally applicable to notice pleading require little specificity for a complaint filed in the federal court, except that a claim based on fraud must be supported by specific allegations. Although the pleading here is inartistic, long-winded and, in some of the paragraphs, vague, we cannot say that the complaint must be dismissed for failure of the plaintiff to allege his claim with sufficient precision. Taking the complaint as a whole, at least four issues of fact emerge: (1) was the Thompson survey incorrect? (2) was the survey purposefully false? (3) was the action of the Land Commissioner fraudulent or in bad faith? and (4) were there procedural improprieties in the hearing before the Commissioner that deprived the plaintiff of a fair opportunity to protect his property? If we accept as true the allegations of the complaint with respect to these issues, the district court had jurisdiction of the matter in controversy as one that "arises under the Constitution, laws, or treaties of the United States". 28 U.S.C.A. § 1331. Under 42 U.S.C.A. § 1983, the court had jurisdiction by virtue of 28 U.S.C.A. § 1343(3). Hornsby v. Allen, 5 Cir. 1964, 326 F.2d 605. The relief requested rests in the general equity powers of the Federal judiciary. Holmberg v. Armbrecht, 1946, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743; 3 Davis, Administrative Law Treatise 310 et seq. § 23.05.

It must be said that this case has many of the aspects of a local boundary dispute. The plaintiff, however, presents a claim of impairment of contract under Article 1, Section 10 of the United States Constitution.¹ The plaintiff asserts that the state action of selling what is rightfully his land to Bryant and his co-conspirators is an impairment of the contract implicit in the original grant of the land from the state to his predecessors in interest, through whom he claims. The legal basis for this contention stretches back to Fletcher v. Peck, 1810, 6 Cranch, 87, 10 U.S. 87, 3 L.Ed. 162, in which John Marshall dissected a land grant and concluded that, although it was an executed contract (a conveyance), it was also a contract carrying with it certain continuing executory obligations, including the grantor's obligation not to claim again the thing granted. Justice Marshall said:

"A contract is a compact between two or more parties and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant." 6 Cranch at 136-137.

The vitality of Section 10 has faded,² but in the restricted area of state land grants the section still has some vigor left.³ The unconstitutionality of state action which grants land to one party and then attempts to grant the same land to another, was reasserted in 1873 in Davis v. Gray, 1873, 16 Wall. 203, 83 U.S. 203, 21 L.Ed. 447 and in...