Rivers v. Another

• Decision Date: 01 January 1854
• Parties: RIVERS v. FOOTE AND ANOTHER.
• Court: Texas Supreme Court

11 Tex. 662

RIVERS

v.FOOTE AND ANOTHER.

Supreme Court of Texas.

1854.

All locations, surveys, and grants made after the closing of the land offices on the 13th of November 1835, and before the re-opening of the land office under the Republic, are null and void; and the denouncement and condemnation of lands by Commissioners or Ayuntamientos, after the 13th of November, 1835, were also null and void.

Where the defendant pleads special matter in defense, the plaintiff will not be permitted to introduce evidence which confesses and avoids such defense, unless he has alleged the same in his pleadings. (Note 91.)

In the action of trespass to try title, where the defendant relies on the plea of not guilty, and introduces evidence by way of confession and avoidance, the plaintiff must also, from the necessity of the case, be permitted to introduce evidence in confession and avoidance of such defense, without having alleged the same in his pleadings; but if the defendant plead specially in this action, the general rule applies.

Where the defendant in the action of trespass to try title pleads “not guilty” and also pleads in confession and avoidance, “it may well be questioned whether he should not be confined in his evidence to the matters pleaded.”

Where the plaintiff, in an action of trespass to try title, claimed by a recent location, and the defendants pleaded title deraigned from one Cartwright, to whom the land was granted in 1824, who had sold to Stafford in 1825, it was held that the plaintiff could not be permitted to prove that Stafford abandoned the country, because he had not alleged that fact in his pleadings. (See the facts, for the vagueness with which the defendants had pleaded their title.)

The difference between the cases where land remained entirely vacant because of abandonment of the country, and cases of forfeiture.

Error from Colorado. Action of trespass to try title by the plaintiff in error, R. J. Rivers, against the defendants in error, R. H. Foote and J. M. Hunter. The defendants pleaded a general denial; not guilty; and specially, that the defendants, R. H. Foote and one Frederick Foote, “are the legal, joint owners of the said premises, by title duly recorded in the Recorder's office of Colorado county; that said Frederick Foote and himself (R. H. Foote) have had the possession of said premises since the 10th of August, 1824, under title and color of title duly recorded, and have, during the whole of said time, held and occupied said premises adversely to the plaintiff and all other persons, undisturbed by suit.”“And they further say that the land sued for by plaintiff is a part of the headright league of land granted to Thomas Cartwright in 1824, as will appear by a certified copy of the patent filed in this cause 20th October, 1849; that the said land was, after the year 1825 and before 1836, improved by having a house built on it, and a field enclosed, well dug, and other improvements made thereupon, by those under whom the defendants claim, and that said land was also resided upon.” There was no allegation in the petition or amendments thereto, which impeached the title set up by the defendants, on account of forfeiture, or otherwise. The plaintiff claimed the land by virtue of the location of valid land certificates, made in 1848.

The plaintiff proved his certificates and locations on the land in controversy. The defendants read the following agreement.

“In this case it is agreed and admitted that the land in controversy in this suit is part of the league of land granted by the proper authorities, in 1824, to Thomas Cartwright, as appears by copy of patent filed in this cause October 26, 1849, as his headright, and that the same was granted in conformity with law; that after 1825 and before 1836, the land in controversy in this suit was improved by those under whom the defendants claim, a house had been built and a well dug thereon, a field cleared and a crop raised; and the land was resided on for many years by those under whom defendants claim; that the land in controversy was deeded to William Stafford by Thomas Cartwright in February, 1825, and conveyed by him, Stafford, to his children in 1837, and by them, his children, to R. H. Foote, one of the defendants, in 1846.”

Thereupon the plaintiff offered in evidence a denunciation of the same land by Thomas Cochrane, “one of the colonists introduced by the empressarios Austin and Williams” to the Commissioner Peebles, on the ground that Stafford, to whom Cartwright had sold, had abandoned the country; the condemnation of the land, and the re-grant of it to Cochrane. These proceedings took place between the 10th and 26th of February, 1836. It was stated in the bill of exceptions, that they were offered “for the purpose of proving that the land in controversy had been denounced by the said Commissioner and by Cochrane. They were excluded, and the plaintiff excepted.

Plaintiff then offered to prove by depositions and by witnesses on the stand, that William Stafford, under whom the defendants claim, and to whom the land in controversy was deeded by Thomas Cartwright, the original grantee, abandoned the country in the year 1835; that the said Stafford went to the State of Mississippi, where he resided for some time; that he afterwards removed to the State of Louisiana, where he remained until his death; and that he never returned to this country; that he, said Stafford, after he left this country, and before he removed to Louisiana, purchased and improved property at Grand Gulf, in the State of Mississippi, and resided upon and occupied the same with his family.” To all of which the defendants objected, and the Court sustained the objections; and thereupon the plaintiff excepted, etc. There was judgment for the defendants.

R. Hughes, for plaintiff in error. I. For the plaintiff in error, it is not pretended that there was any ground, upon which he would be entitled to a verdict, but upon that disclosed in the evidence rejected.

It will scarcely be questioned, that the leaving the country and the acquiring a domicile in a foreign country, beyond the limits of the Republic of Mexico, did, ipso facto, produce a reversion of the land of all colonists and settlers to the State, and thereby that the land became vacant. (Heirs of Holliman v. Peebles, 1 Tex. R., 669.) And we think there is as little question that Stafford, under whom defendants claim, came fully within the rule laid down in Holluman v. Peebles.

The Court erred, beyond all question, as to the grant offered in evidence.

It is admitted that the grant to Cochrane is void, as well as the survey, if any was made, and the location; for the reason only that the Constitution of the Republic so subsequently declared. (Gen. Provisions, Art. 10.) But it does not follow that the denunciation, the inquiry, and adjudication are void. These are not so declared, nor are they even prohibited by the decree of the Consultation. By the Article of the “Plan and Powers of the Provisional Government,” on that subject, “all land commissioners, empresarios, surveyors, or persons in any wise concerned in the location of land,” were ordered to cease their operations, “and to desist from further locations until the land offices can be properly systematized.” (Art. 14, Hart. Dig., p. 20.)

The officers were only arrested in their operations as to locations. The commissioners were not deprived of their offices, but were only to cease operations as to such locations for the present. There was no prohibition to denunciation, and an inquiry as to what lands were vacant under the 30th Article of the law referred to. Now, may not a thing be void for one purpose, or in one part, and good for another, or in another part? Where a tenant at will grants over the estate, though the grant be void, for want of authority to grant, yet it may be used as evidence to prove the determination of his will, and thereby an end of his estate, (8 Bac. Abr. VOID AND VOIDABLE, B. 2, 168.) And so here, nothing passes by the grant, because declared void, but that which preceded the grant, not being either in violation of law, or declared void, may stand and be evidence of the facts contained in it. There may be no title passed, as in the case of the tenant at will granting over his estate, but that which necessarily arises out of, and is proved by, the void act, existing as a fact, notwithstanding the nullity of the act containing it, may be proved and be used as evidence against him who is affected by it.

II. But suppose, for the present, it be admitted for the argument only, that the grant was properly rejected, then as to the other evidence rejected.

The statement of facts shows an effort to avoid the force of the decision in Holliman v. Peebles, by proving that the land in dispute comes within the rule laid down by the Court in the case of Paul v. Perez (7 Tex. R., 338), which was, that all forfeited improved lands, having been pledged to redeem the promissory notes of the Government, were not vacant and subject to location by individuals.

We reply: This abandonment, under the 30th Article of the Colonization Law of 1825, can in no sense be said to be a forfeiture. This Court having determined that by the domiciliation in a foreign country, the land, ipso facto, becomes or remains vacant, a distinction is at once established between a forfeiture and that which occurs under such circumstances. Chief J. Hemphill distinctly states the difference between the cases of the return of the land to the public domain, under the 30th Article, and the forfeiture under the 24th Article of the Law of 1825. (Holliman v. Peebles, 1 Tex. R., 675-6.) The same opinion shows that in cases of forfeitures for the failure to cultivate, some inquiry was necessary in order to ascertain the forfeiture.

Harris & Pease, for defendants in error. I. Whatever powers may have been vested in the Colonial Commissioners, under the laws of...