Mitchell v. Bass

• Citation: 26 Tex. 372
• Parties: ELI MITCHELL v. A. S. BASS.
• Decision Date: 01 January 1862
• Court: Supreme Court of Texas

26 Tex. 372

ELI MITCHELL

v.A. S. BASS.

Supreme Court of Texas.

1862.

The commissioner of the general land office is authorized by law (O. & W. Dig. 1274) to issue a patent to an assignee upon his presenting a sufficient and properly authenticated chain of transfer from the original grantee, and is made the judge of the sufficiency of the transfers to enable him to pass the title from the state to the assignee of the certificate.

As between the state and the patentee, the patent is evidence of title in the latter. The decision of the commissioner is not conclusive of the genuineness of the assignment, against the grantee or any assignor of the certificate; but as between the patentee and strangers, the patent is at least prima facie evidence that the title is in the patentee, and relieves him from the necessity of proving the assignment in an action of trespass to try title against a party who does not claim the certificate upon which the patent issued.

Applications for new trial on the ground of newly discovered evidence will be scrutinized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court has not exercised its discretion according to the established rules of law and the principles of adjudged cases.

A party bringing himself within the principles of the adjudged cases, governing applications for new trial, is entitled to a new trial as a matter of right, unless it be apparent that the justice of the case has been attained.

If there be any doubt of the justice of the verdict, and new evidence conclusive in its character has been discovered, to refuse a new trial in such a case would be against justice and precedent,--by new evidence is meant some new and material fact which has come to light since the trial.

The established doctrine of the common law is, that a conveyance of lands bounded on a public highway carries with it the fee to the center of the road; such is the legal construction of a grant, unless the inference that it was so intended is rebutted by the terms of the grant. The owners of the land on each side go to the center of the road, and they have the exclusive right in the soil subject to the right of passage in the public. Upon a discontinuance of the highway the soil and freehold revert to the owners of the land.

Quære: Does the foregoing doctrine of the common law apply to grants extended by the government of Coahuila and Texas to colonists in 1831?

Quære: Is the rule of the civil law in like cases the same as that of the common law? or, according to the former, does the soil of the public highway remain in the public?

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

Suit of trespass to try title by appellee against appellant, for thirty acres of land on the south side and adjoining the town of Gonzales, which appellant claimed by virtue of a patent issued to him by the state of Texas on the 4th day of April, 1856.

The defendant set up several defenses, and specially pleaded that the land for which plaintiff instituted suit, and from which he seeks to evict defendant, was surveyed, laid out and set apart as a public highway on or about the year 1832, by order of Jose Maria Navarro, the officer in authority, who had legal power so to do, and that said public highway was located and set apart for the use of the public between labors 1 and 2, extending from the southern limits of the town of Gonzales to Guadalupe river, one hundred varas wide; and therefore avers that the right and title of said land was in the county of Gonzales; that the citizens have a right to the same as a public highway; that the county would be greatly damaged by being deprived of the same; prayed that the chief justice of the county of Gonzales be made party to the suit; that the interest and rights of the county be protected; that the said land lying between labors No. 1 and 2, extending from the southern limits of the town of Gonzales to the Guadalupe river, one hundred varas wide, be continued and set apart as a public highway, as the same had never been closed or discontinued by any court of competent jurisdiction, or by any one having legal authority. Defendant further pleaded three, five, ten and twenty years' limitation, and that if there be any land whatever between labors No. 1 and 2, the same was granted by the Mexican government to him and to others under whom he claimed; that he and they have had peaceable adverse possession of the same under said grants for more than twenty years, paying all taxes due thereon, cultivating, using and enjoying the same, and making improvements thereon, and he therefore pleads the said grant of said land, if there be any between said labors, in bar of plaintiff's claim.

On the trial the plaintiff read in evidence a patent from the state of Texas to him for thirty acres of land in the county of Gonzales, on the south side and adjoining the town of Gonzales, granted “by virtue of an unconditional certificate No. 128, issued by the board of land commissioners of Gonzales county, on the 9th day of December, 1854, and transferred to plaintiff on the 2d day of January, 1855.”

The defendant objected to the reading of this patent in evidence on the ground that the transfer of the certificate on which the patent issued was not proved; the objection was overruled, and defendant excepted.

The defendant read in evidence grants from the Mexican government to colonists for labors No. 1, 2, 3 and 4, extended in 1831, and adjoining the town of Gonzales; introduced maps of the town tract of Gonzales and surrounding surveys, the original field notes of labor No. 2, and the testimony of many witnesses in reference to these surveys. Verdict and judgment for plaintiff.

On the trial of the motion for a new trial upon the ground of newly discovered evidence, the affidavits of several parties were read. The facts upon which the motion for a new trial was based are sufficiently shown in the opinion of the court.

It was in proof that the old “national road” did run between labors No. 1 and 2, and that it had been discontinued as a public highway for many years.

Stewart & Mills, for appellant. 1. We think the court erred in admitting the patent to Bass to the jury, without some evidence of the assignment of the certificate issued to Ruth, by Ruth to Bass; the objection was raised in limine, and the point reserved by bill of exceptions.

The 3d section of the act of 1840 (Hart. Dig. art. 2522) cannot, by any fair construction of the entire section, be held to mean or include “any bond or other instrument” not for the payment of money; it speaks of “discount,” ““payment,” “due diligence to collect,” etc. The entire act treats of negotiable and unnegotiable instruments; and while the assignee may sue in his own name, and while the 5th section dispenses with the proof of assignments “of any of the aforesaid instruments,” it must appear clear the instruments intended, and in the mind of the legislature, were, for the payment of money, absolutely or eventually, as in the case of Durst & Swift, 11 Tex. 273. Bass was compelled, on objection being made, to prove the assignment of the Ruth certificate to himself, when he offered his patent, unless the law holds the assignment proved by statute.

Bass claimed to be the owner of the certificate; suppose he brought mandamus to force a patent; or to put the case stronger, suppose him to bring trespass to try title on his location and survey, can there be doubt but what he would be required to prove the assignment of the certificate from Ruth to himself? and this is the distinction we take, which was made by Wheeler, Justice, in Durst v. Swift, 11 Tex. 280. The consideration of the assignment is another thing which we do not question.

It is no answer to say the commissioner of the general land office determines the right of the assignee by inspection when he issues the patent; that is a ministerial, and not judicial act, and if conclusive, it could not be attacked in after years even for forgery; proof before him does not, in the nature of things, furnish proof to the court and jury that the assignment was made; and this view is fortified, when we consider the easy and summary manner in which the proof can be furnished (as provided by Hart. Dig. art. 744) by certified copies from the land office. Mesne assignments of a land claim become records in the land office in cases in which a patent is authorized to issue to the assignee of such claim. The court will not go, in its construction of this statute further, as to proof...