Republic Texas v. Thorn

• Decision Date: 31 December 1848
• Parties: THE REPUBLIC OF TEXAS, Appellant, v. FROST THORN, Appellee
• Court: Texas Supreme Court

3 Tex. 499

THE REPUBLIC OF TEXAS, Appellant,

v.FROST THORN, Appellee

Supreme Court of Texas.

December Term, 1848.

Appeal from Nacogdoches County.

After the passage of the national colonization law of the 13th August, 1824, the states of the Mexican confederation possessed the property in the soil, and had alone the power, by direct agency, of appropriating lands to individuals.

The approbation and consent of the supreme federal executive of Mexico is necessary to support a title for lands within the border leagues. [ Ante, 241; 21 Tex. 97.]

In suits for the establishment of title to lands lying within the border leagues, brought under the act of the 9th January, 1841, the fact of the assent of the supreme national executive to the grant or claim must be specifically averred and proven, and cannot be proven unless alleged.

This action was instituted against the republic, to establish the validity of a claim to lands within the twenty border leagues, by virtue of authority derived from the act to quiet the land titles within that section of the country, approved January 9, 1841. [See Laws of 1841, p. 177.] The petition represents that Jose Ybarbo, for himself, and on behalf of his three brothers, applied, in the month of February, 1827, to the political chief of the department of Texas for a concession of certain parts of a tract of land mentioned in the memorial; that the land was situated in the settlement of Nacogdoches, but its special locality, from some omission, perhaps, in the transcript, is not altogether intelligible, though the averments are sufficient to show that a portion of the land was at the junction of the rivers Attoyac and Angelina, and was then occupied by the Ybarbos for grazing their cattle.

The political chief, on considering the petition, ordered the alcalde having jurisdiction of the place not to permit any other person to molest the Ybarbos in the peaceable possession of the lands; deferring further action until the commissioner of the state should act on the same by ordering a survey, and making a formal title for the said lands to Ybarbo and his brothers.

No other proceeding was had until March, 1833, when a second petition was presented by Ybarbo to the political chief of the then department of Bexar, reciting the former memorial and the said order, and praying for a formal title to the lands mentioned in his first petition. This application and the accompanying documents were forwarded to the governor of the state, and were by him referred to the proper officer, that the merits, claims and qualifications of Ybarbo, touching the premises, be reported to him; which being done, the governor, by virtue of the legal power vested in him, and in conformity with the thirteenth article of the colonization law of the state, of the 28th of April, 1832, did concede and grant in sale to the said petitioner the lands solicited, provided the same were entirely vacant; and the alcalde of Nacogdoches was authorized to extend formal titles, and place the petitioner in possession of the said lands.

The petitioner further avers that, after the issuing of the said decree of the executive, he was duly constituted the legal attorney of the Ybarbos to have the said lands located, surveyed and formal titles procured for the same, and that by virtue of this authority, he, on the 2d of April, 1834, petitioned the alcalde of Nacogdoches for the appointment of a surveyor to survey the said lands, and that a formal title might be issued.

The appointment was made, the survey accomplished, and on the 5th of May, 1834, the alcalde by virtue of the order of the governor before mentioned, executed and delivered a full and complete title for the lands described in the survey.

It is then averred that the political chief, the governor, the surveyor and the alcalde, had and possessed full and ample power, under the constitution and laws of the state of Coahuila and Texas, and by virtue of their offices, to do and perform all and singular the acts alleged in the petition to have been done by them or either of them, and that all of said acts were done in good faith.

It is further stated that the consent of the empresario, Zavalla, to the location of the lands within the limits of his colony, was obtained; that all the government dues on the said lands have been paid, and that all the stipulations contained in the said grant, or in the law concerning the premises, have been fully complied with by the grantees, and that the petitioner is now the owner of the said lands. He prayed that the claim might be adjudged to be valid, and that he might be quieted in the possession and enjoyment of the same.

No answer was filed by the district attorney. The cause was tried before a jury, and a verdict being found for the plaintiff, the claim was adjudged to be established against the republic. An appeal was accordingly taken.

HARRIS, Attorney General, for appellant.

In this cause we labor under the disadvantage of having no bill of exceptions and no statement of facts.

But conceding that, upon the trial of the cause in the district court, the plaintiff there proved all that is contained in his petition, we contend that still he could not recover. For the petition shows that the claim to land arose prior to the 17th day of March, 1836; that the land is situated within the twenty border leagues fronting upon the line of the United States, and does not show or allege that his pretended title ever received the approval of the national executive of the Mexican government. [See the Laws of Coahuila and Texas, 192, art. 25; see, also, 1 White's Recopilacion, 601.]

Petitioner says it is shown that this tract of land is situated and located in the colony of the empresario, Lorenzo de Zavalla, and that the said empresario consented and agreed that the said land should be located within the bounds of the said colony.

This does not cure the defect in the petition, resulting from a failure to allege that a settlement or grant was made with the approval of the national executive. For the petition does not allege that Zavalla was authorized to establish that colony by the consent or with the approval of the national government or national executive. And, had this been done, the petition would still have been insufficient. For this would only have given him the right to grant lands to colonists and settlers, while the petition says it shows that, on the 22d of August, 1833, the governor did concede and grant in sale the said land, etc.

These distinctions are, with confidence, relied upon to sustain the position that the defects of the petition are not even aided by its being said to be shown that the empresario consented and agreed that this tract might be located within the bounds of his colony.

It may be remarked that the decree of the governor does not purport to be an absolute sale, but this was upon the condition that the land was entirely vacant. It does not appear that by him there was any subsequent confirmation of it.

The 13th section of the act of 1832 [Laws of Coahuila and Texas, 190], under which this sale purports to have been made, authorizes the governor only to sell lands. And taking this section with the 25th of the same act, he could sell only such lands as were not included within the twenty border leagues. The latter could not be sold or appropriated without the “approval of the national executive.”

But if the law had given to the governor the power of selling the vacant lands within the twenty border leagues, that would not have given to him the power to delegate to an alcalde the authority to judge what lands were vacant, to sell them and to make titles to them. Had the law contemplated that all these privileges might be exercised by the alcalde, it would doubtless, in the first instance, have delegated to him that power.

It will be seen that before the survey and issuance of the title by the alcalde, the act under which they purport to have been made, viz.: the colonization law of 1832, was repealed by the act of 1834 [Laws of Coahuila and Texas, 251, art. 29], so that, if the survey and title would have been otherwise valid, this would have rendered them void.

And before the petition pretends that there was a title or a survey, decree No. 272 repealed all former laws on the subject of the distribution of the public lands, and required that they should be disposed of only at public auction, after a survey and advertisement for three months. [Laws of Coahuila and Texas, 247, articles from 1 to 6, inclusive.] There was no compliance with the requisitions of this law.

Now, there can be no legal or reasonable presumption that the plaintiff proved more upon the trial of the cause in the district court than he had alleged in his petition. The plaintiff and his counsel well knew that whatever was necessary to be proven was necessary to be alleged, and experience shows that plaintiffs are usually sufficiently prodigal in regard to allegations. For it often times happens that it is far easier to allege facts than to prove them. And to presume that more was proven than was alleged would be to presume that the court and the counsel for the republic permitted illegal testimony to be introduced upon the trial in the district court, and that the whole proceedings were in direct opposition to the plainest principles of the law. This view is sustained by what was said and decided by this court in the cases of Burton vs. Anderson, Texas R. 97, and Mims vs. Mitchell, Id. 447. In the latter case an opinion of Judge STORY is referred to, which is directly in point, and is as follows: “The proofs must be according to the allegations of the parties; and if proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision, for the pleadings do not put them in contestation. The allegata and probata must reciprocally meet and conform to each other.” [Harrison vs. Nixon, 9...