Milam Cnty. v. Bateman

• Citation: 54 Tex. 153
• Decision Date: 21 December 1880
• Docket Number: Case No. 853.
• Parties: MILAM COUNTY v. J. M. BATEMAN ET AL.
• Court: Supreme Court of Texas

54 Tex. 153

MILAM COUNTY

v.J. M. BATEMAN ET AL.

Case No. 853.

Supreme Court of Texas.

Dec. 21, 1880.

APPEAL from Hood. Tried below before the Hon. T. L. Nugent.

Suit by Milam county, in trespass to try title, against J. M. Bateman and twenty-five others, for rents and profits for one league of land situated in Hood county Texas, claiming the same as a part of the land granted to her for school purposes, under two acts of the congress of the republic of Texas, the first approved January 26, A. D. 1839, the second approved February 5, A. D. 1840; located and surveyed on the 23d day of December, A. D. 1849, and the field notes recorded in Milam county June 9, A. D. 1858, duly certified by the clerk of the county court of Milam county, Texas, and filed in the general land office June 16, A. D. 1858, and patented to Milam county October 10, A. D. 1860.

Plaintiff claimed that the title set up by certain of the defendants was, by the judgment of the supreme court, rendered May, A. D. 1870, determined in favor of Milam county, and claimed that the defendants were estopped from denying or setting up title.

T. P. Randall and W. H. Beaumont intervened and claimed part of the land sued for.

The defenses relied upon were:

1st. General demurrer.

2d. Not guilty.

3d. The invalidity of plaintiff's title, because plaintiff did not have the field notes returned to the general land office before the 31st day of August, 1853.

4th. Pleading title in themselves to their respective claims; first, under the act of the legislature of Texas, of the 21st day of July, A. D. 1870, entitled “An act authorizing and requiring the commissioner of the general land office to issue patents on certain settlers' claims of one hundred and sixty acres of land each, on payment of usual office fees and fifty cents per acre.

Intervenors Randall and Beaumont and certain others claimed under locations made by virtue of certificates, one the J. H. Davis bounty for one thousand two hundred and eighty acres, and the other for six hundred and forty acres issued to the S. A. & M. G. R. R. Co., located after the issuance to plaintiff of a patent to the land sued for, claiming plaintiff's patent had been cancelled and reissued on another location, at the instance of plaintiff's agent, one J. D. McCamant.

The court sustained defendants and intervenors' general demurrer to plaintiff's petition, and overruled plaintiff's general and special exceptions to defendants' answer and to the plea of intervention filed by Randall and Beaumont. Plaintiff filed a trial amendment.

Verdict and judgment for defendants and intervenors for the land claimed by them respectively.

In addition to facts stated in the opinion, it was admitted on the trial that J. D. McCamant, under whom six of the defendants claimed, located a San Antonio & Mexican Gulf Railroad Company six hundred and forty acre certificate on the land claimed by the intervenors, which was a part of the land in controversy and covered by plaintiff's patent, and was patented to McCamant, as assignee of the railroad company, on the 12th day of October, A. D. 1872.

It was proven on the trial, by R. G. Peters, that after the supreme court made its decisions, in 1870, in a former suit between Milam county and the settlers for the land in controversy, he leased a part of the land claimed by plaintiff, and which is covered by the location made by J. D. McCamant, for himself and his boys; and that one of his boys went on the land under this lease in the year 1871 or 1872, and was on the same--the part called the J. H. Davis survey--when J. D. McCamant made the surveys on the J. H. Davis bounty warrant, and on the San Antonio & Mexican Gulf six hundred and forty acre certificate; that both surveys were made by J. D. McCamant at the same time, and that he told said McCamant, on that day, that he and his boys were claiming the land as Milam county school land, under a lease from the county, and had made their surveys and selections, and to go away and let them alone.

It was proved on the trial that the J. H. Davis survey was made prior to the cancellation of plaintiff's patent.

It was further established that J. D. McCamant was the agent of Milam county to collect rents and procure patents on unpatented land for the county.

Milam county had tenants on the land covered by the S. A. & M. G. R. R. six hundred and forty acre certificate, from 1869 up to the date of trial. The defendant, J. D. McCamant, before the cancellation of plaintiff's patent, stated that he did not know whether he would get patents on the Milam county school lands or not; that his agents at Austin were altogether too slow; that if he was at Austin, he would give one of the deputies in the land office fifty dollars, and have the patent out and gone before any one knew it, but it would not do to fool with old man Kuechler--he was too honest.

J. C. Terrell, A. M. Carter and Smith & Jarvis, for appellant.

I. The court erred in sustained defendants' demurrer to plaintiff's original and amended petition.

II. The court erred in not sustaining plaintiff's special

exceptions to defendants' amended answer, and to the plea of intervention filed by T. P. Randall and W. H. Beaumont.

III. The court erred in charging, “if plaintiff, Milam county, had the land surveyed in 1849, and the field notes thereof recorded in Milam county in 1858, and thereafter duly certified by the county clerk of Milam county, and returned to and filed in the general land office, and that if, on the 10th day of October, 1860, the commissioner of the general land office issued to plaintiff a patent to said land, that therefore the field notes, survey and patent to said land were null and void.”

IV. The legislature of the state of Texas cannot divest the counties of their school lands, granted to them for educational purposes. Galveston County v. Tankersley, 39 Tex., 657;Bell County v. Alexander, 22 Tex., 359;Kuechler v. Wright, 40 Tex., 606; Fannin County v. Riddle, Texas Law Journal, vol. 2, No. 38, p. 598; Dartmouth College v. Woodward, 4 Wheat., 577;Wilcox v. Jackson, 13 Pet., 498; Const. of U. S., art. I, sec. 10; Cooley's Constitutional Limitations, 273-275.

V. Where a question concerning the title to real estate has been finally passed upon by the highest court in the state of Texas, the legislature of the state has no constitutional right to pass any law, or grant any relief, which would change the condition of the litigant parties as fixed by the court in such a case, whether the decision be right or not. Art. II, sec. 1, Const. 1868-9; Sedgwick on the Construction of Statutory and Constitutional Law, 128-145; Cooley's Constitutional Limitations (3d ed.), 87 116; Denny v. Mattoon, 2 Allen, 361;Hadfield v. Mayor, etc., 6 Robt., 501;Davis v. Menasha, 21 Wis., 491;Atkinson v. Dunlap, 50 Me., 111;Taylor v. Place, 4 R. I., 324.

VI. The commissioner of the general land office has no authority to cancel a patent for conflict, except when the patent is returned for cancellation by the owner, nor unless there is a real actual conflict with an older equitable or legal title.

A. J. Hood and McCall & McCall, for appellees.

I. The act of July 21, 1870, under which appellees purchased and obtained patents, was not in violation of either the constitution of the United States or the then existing constitution of this state. See Const. of 1869, in force July 21, 1870, art. IX, sec. 8; Fannin County v. John L. Riddle, Tex. Law Journal, vol. 2, No. 38, p. 598; Bass v. Fontleroy, 11 Tex., 706;San Antonio v. Odin, 15 Tex., 544. See act July 21, 1870. But suppose our state constitution and our state decisions silent on the question. What then? The act of July 21, 1870, was constitutional and valid. See Rule of Construction, Cooley's Con. Lim., 3d ed., pp. 181, 182. Then what are counties? and what power has the legislature of a state over them? See 3 Pars. on Con., 6th ed., 528; Laramie County v. Albany County, 92 U. S. (2 Otto), 308, 311, bottom; Darmouth College v. Woodward, 4 Wheat., (Curtis), 485; 1 Dillon on Mun. Corp., sec. 10; Id., secs. 38, 39; Cooley on Const. Lim., 240; 49 Mo., 236;26 Ark., 37;114 Mass., 214;16 Kan., 498;25 Ill., 187;1 Humph. (Tenn.), 48;12 Ill., 8; 1 Greenl. Ev., art. 331 (9th ed.); 10 How., 511;11 Pet., 539;4 Ohio, 42;13 Wend., 325.

II. Milam county, in regard to school lands pertaining to that county on the 21st day of July, 1870, was a creature and mere agent of the state, and is now a mere agent of the state, and she cannot in the courts of the state do that which the state says she shall not do, viz.: recover the lands and oust the appellees therefrom. As to capacity in which counties hold: They at farthest held, and now hold alone, in trust, subject to the legislative will of the state. See Const. of 1869, art. IX, sec. 8; see present State Const., art. VII, latter part of sec. 6; also see Fannin County v. John L. Riddle, Texas Law Journal, vol. 2, No. 38, p. 598. Then, as to what the legislative will of the state is and was, see act of July 21, 1870.

III. On the 26th day of August, 1856, the several parcels of land embraced in the respective patents of these appellees were parts and parcels of the public domain of the state, and had not been by the state, through any action of Milam county, severed and set apart for educational purposes.

IV. The issuance of a patent is a ministerial act, and is void if issued on invalid field notes. See State v. Delesdenier, 7 Tex., 109;Russell v. Mason, 1 Tex., 721;Kimmel v. Wheeler, 22 Tex., 84.

V. If it be shown by the record in any case that the court in fact acted, in rendering the judgment, without jurisdiction over either the person or thing, such judgment is a nullity, and the question of jurisdiction as to that particular judgment is in all time ever thereafter an open one, even to collateral attack. See Freeman on Judgments, 2d ed., secs. 116, 117, 120, 263, 266; Horan v. Wahrenberger, 9 Tex., 319;Elliot v....