Musquis v. Blake
| Decision Date | 01 January 1859 |
| Citation | 24 Tex. 461 |
| Parties | RAMON MUSQUIS v. M. M. BLAKE AND OTHERS. |
| Court | Texas Supreme Court |
The revolution did not divest or impair the right of property in land, which had been granted to a citizen under the government of Coahuila and Texas; and the removal of the owner, in 1836, and his adherence to the cause of Mexico, did not, ipso facto, and without any action taken by the government to declare the forfeiture therefor, make him an alien, or vacate his title, and does not incapacitate him to maintain an action for its recovery. 23 Tex. 113.
Where it is made manifest to a party, that he must fail, on account of his supposed incapacity to sue, under the ruling of the court, and judgment is rendered against him, and the ruling is erroneous, this court will not refuse to reverse the case, because a defense to the action, on another ground, has been sustained by proof.
The want of registration of a grant under the government of Coahuila and Texas, in the county where the land was afterwards filed on, is not sufficient, in itself, to postpone the grant to the subsequent location and survey. 15 Tex. 410;16 Tex. 391;25 Tex. 54.
APPEAL from Goliad. Tried below before the Hon. James Webb.
This was a suit brought by Ramon Musquis, alleging himself to be a citizen of the county of Bexar, and state of Texas, against Martha M. Blake, and Edwin H. Blake, her husband, Eliza V. Underhill, and Daniel M. Underhill, her husband, and Ellen Goodwin, to remove a cloud from his title to four leagues of land, created by their claim to it; and to quiet him in his possession thereof.
The petitioner alleged that he owned and had had possession of the land for more than twenty years, under good and valid grants, emanating from the proper authorities of the government of Mexico. The defendants claimed a league of land (a large portion of which, they admitted, conflicted with the tract of land described in the plaintiff's petition), under the location and survey of James Harris, deceased, the ancestor of the said Martha, Eliza and Ellen, made by virtue of his headright certificate, issued on the 15th day of February, 1838, and which was surveyed on the land described in their answer, on the 14th day of November, 1838; which land he had selected and settled upon, in the latter part of the year 1837, or in the early part of the year 1838. They alleged further, that a patent was issued to the heirs of Harris, by virtue of such location and survey, for the said league. That from the time of the first settlement by their ancestor, to the year 1849, no adverse claim was set up to the land, and that neither upon the map of the old county of Goliad, or of the land district of Goliad, nor upon any other map, was any survey delineated, which conflicted with their said survey, until within four years past.
The answer admitted that in 1839, a writing, purporting to be a concession of four leagues of land to Ramon Musquis, was deposited in the general land office, but charged that the same was invalid, null and void; and averred that their ancestor, at the time of his settlement, location and survey aforesaid, had no notice, actual or constructive, of the existence of any claim to the land.
The defendants filed an amended answer and alleged, that the plaintiff was then, and at the time of the commencement of this suit, an alien to the United States, and to the state of Texas, for that the said Musquis left the republic of Texas, in the spring of the year 1836, during the contest for independence; that he domiciliated himself in the republic of Mexico, for the purpose of avoiding a participation in the war; that he gave aid and assistance to the enemy of Texas, and thereby lost his citizenship; that he had never returned to reside in this state, but had continued, since the time of losing his citizenship, an alien, as aforesaid, to the United States and to this state, and that he could not, therefore, maintain his suit.
And for further amended answer, they said, that in the spring of the year 1836, the said plaintiff abandoned the republic of Texas, and had never since returned to the country; that by such abandonment, he lost all title to land, and especially all claim to the land here sued for; that the said land became thereby wholly vacant and unappropriated public domain, and was so vacant, at the time when the same was located and surveyed, and at the time of the issuance of the patent to their ancestor, and thereinbefore, and in the original answer, set forth.
To this the plaintiff filed a general exception, and set forth as cause thereof, the irrelevancy of “all matters of forfeitures therein set forth, so far as the same relate to conditions broken, or acts of the plaintiff, after the alleged concessions to him had been made.” The court overruled the exception.
The plaintiff introduced a grant to the land described, made to him in the year 1833, from the authorities of Coahuila and Texas, and proof of its conflict with the survey of land claimed by the defendants, to the extent of one-third of a league; and proved that the title offered in evidence, was filed in the general land office of Texas, on the 15th of December, 1839.
The defendants proved that the plaintiff left San Antonio on the 24th day of May, 1836, with the Mexican army, on account of the revolution, declaring himself to be with the Mexicans in feeling, and that he should go with them; that he had not since returned, so far as the witness knew, or had ever heard; that no delineation had ever been made upon the maps of Goliad county or district of the survey of the Musquis grant. The only field-notes of that grant which had been in the surveyor's office of Goliad district, was a transcript from the general land office of the field-notes of surveys of land in Power and Hewitson's colony, which were certified to, as authentic translations made from the originals, on the 17th day of March, 1847. This transcript contained a copy of the field-notes of the survey set forth in the petition, and purported to be the field-notes of survey for Ramon Musquis. The colony grants had not been filed in the office of the surveyor, though some of them were in that district.
The defendants also proved that the plaintiff had been residing in Monclova ever since 1836; and they introduced a transcript from the general land office, of copies of the certificate and survey, as described in their...
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Atchley v. Superior Oil Co.
...Furthermore, there is no such similarity of facts in Sydeck and Kilpatrick as to bring about a conflict in the two cases. Musquis v. Blake, 24 Tex. 461, 466 (1859) found the court re-examining its then recent decision in Kilpatrick, saying: 'A re-examination of the subject here, is therefor......
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...does not affect the property rights of the inhabitants of the territory involved. Kilpatrick v. Sisneros, 23 Tex. 113, 131; Musquis v. Blake, 24 Tex. 461, 466; Airhart v. Massieu, 98 U. S. 491, 496, 25 L. Ed. 213; Jones v. McMasters, 20 How. 8, 21, 15 L. Ed. 805; U. S. v. Percheman, 7 Pet. ......
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...1825. See also Atchley v. Superior Oil Company, supra, 482 S.W.2d at 903, 904; Maxey v. O'Connor, 23 Tex. 234 (1859); Musguis v. Blake, 24 Tex. 461, 466 (1859); Harris v. O'Connor, supra. From the above authorities, it has been well settled that a removal to Mexico from Texas was not a remo......
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...issue of abandonment. This issue can be raised only by the state. Howard v. McKinney, supra; Kilpatrick v. Sisneros, 23 Tex. 113; Musquis v. Blake, 24 Tex. 461. In Kilpatrick v. Sisneros, supra, Chief Justice Wheeler "The special defenses pleaded and relied on are: (1) That the plaintiffs a......