Rose v. Same

• Decision Date: 01 January 1859
• Citation: 24 Tex. 496
• Parties: ROBERT ROSE v. THE GOVERNOR. THE SAME v. THE SAME.
• Court: Texas Supreme Court

24 Tex. 496

ROBERT ROSE

v.THE GOVERNOR.

THE SAME

v.THE SAME.

Supreme Court of Texas.

1859.

The assignees of empresarios, who were aliens to the republic of Texas, are not entitled to the benefits of the 27th section of the act of December 14th, 1837, authorizing the institution of suits to settle the claims of empresarios.

The proviso of that section, was intended to be sweeping, and to cut off from the benefits of the act, all persons who were not citizens of the republic. It meant to exclude both alien empresarios, alien assignees of citizen empresarios, and assignees of alien empresarios; even though such assignees were citizens of the republic.

That proviso referred to persons, in the relations which they then bore to the government, and not merely to those who might be aliens at the time of the institution of their suit.

There is no authority conferred by the state of Texas, for the institution of a suit against herself, or the governor, to settle the claims of empresarios, or for the recovery of their premium lands, by persons embraced within the meaning of the 27th section of the act of 1837; and therefore such suit cannot be maintained.

The right to sue the governor or the state, is matter of favor, conferred by the state, in derogation of that immunity which every sovereign enjoys; and statutes conferring such privileges are to be construed with strictness, so as to extend the right only to those by whom it was clearly intended that it should be enjoyed.

APPEAL from Travis. Tried below before the Hon. Alexander W. Terrell.

This suit was brought by Robert Rose, a citizen of Galveston, Texas, for the use of Stephen Whitney, John Haggerty, and George Griswold, against the governor of the state of Texas, for the adjudication to him, for the use aforesaid, of twenty leagues and twenty labors, as the premium lands to which Joseph Vehlein was entitled as an empresario, by virtue of two contracts made by him, with the authorities of the state of Coahuila and Texas.

The first contract, made the 21st of December, 1826, by Vehlein, required him to introduce three hundred families, as settlers and colonists, into the state of Coahuila and Texas, within certain boundaries or limits, within six years; and by another contract, made between the same parties on the 17th of November, 1828, he was to settle and colonize one hundred more families, within the time above prescribed.

A decree, No. 192, of the congress of the state of Coahuila and Texas, gave to Vehlein an extension of three years, to comply with his contracts. It was proved on the trial, that there had been issued by the commissioner, for Vehlein's colonies, three hundred leagues and six fractional parts of leagues to families, and fifty-five titles to unmarried persons; and that neither Vehlein, nor any one else, had received the premium lands, to which he was entitled, for introducing, colonizing, and settling such families and single men, in the said colonies.

The petition alleged, as a reason for failing to obtain the said premium lands, the closing of the land office, by the consultation, previous to the expiration of the term to which his contracts were extended, as aforesaid. The petition alleged, that Vehlein, and those acting with him in carrying out the contracts, did comply with the said Vehlein's part, by introducing and settling upon the lands designated, four hundred families; and thereby the said Vehlein became entitled to receive twenty leagues and twenty labors of land, as premium lands.

The plaintiff further alleged, that Vehlein, after making the contracts, finding himself unable from his own resources to advance the necessary pecuniary means and labor, to carry out the said enterprise of colonization unaided, engaged the assistance and services of certain persons, who were represented by the said Whitney, Haggerty, and Griswold, to carry out and perform all the obligations in completing and fulfilling the stipulations of Vehlein's contracts, and for which he stipulated they should receive all the benefits resulting from the same, which would have accrued to Vehlein, for the performance of the said duties and obligations. The plaintiffs alleged, that the said persons did perform all of the said duties, and were entitled to the benefits resulting from the said contracts.

The contract referred to, was entered into by Zavala, Burnet, and Vehlein (all of whom had colony contracts), with Anthony Dey, W. H. Sumner, George Curtis, and Jose Antonio Mexia, on the 16th of October, 1830, to form a company to carry out the contracts previously obtained by the three first named parties, making the profits of the contract the common property of the shareholders of the said company, and appointing Dey, Sumner, and Curtis, trustees of the company. The organization was designated as the “Galveston Bay and Texas Land Company.”

In pursuance of the articles of association, a deed of trust was made the same day (October 16th, 1830), and a power of attorney was executed by Zavala, Vehlein, and Burnet, to Sumner, Dey, and Curtis, with power to carry out the provisions of the articles of association, as the trustees thereof, and to sell and dispose of all lands received, and to receive them from the government in their own names, and with power to substitute, and make sub-agents.

On the 6th day of April, 1831, Dey, Curtis, and Sumner, by deed, substituted John T. Mason in their stead. In November, 1833, Zavala and Vehlein, by their respective deeds, confirmed the substitution of Mason, and gave him power to name substitutes, who might likewise choose other substitutes.

In October, 1843, Mason substituted Robert Rose. In April, 1848, Stephen Whitney, John Haggerty, and George Griswold, the supervising directors of the company, formed by the original articles of association, designated as the “Galveston Bay and Texas Land Company,” confirmed Rose's powers, and gave him power to sue in his own name, for the premium lands due to the company.

Anthony Dey, George Curtis and William Sumner intervened in the suit, alleging that the two former were citizens of the state of New York, and Sumner of Massachusetts, and that they were members of the “Galveston Bay and Texas Land Company;” that the deed to them was executed for the benefit of Whitney, Haggerty and Griswold, who were, and still continued to be, the directors of the said company, and prayed, in the event of the want of sufficient legal title in Rose to recover of the state the said lands, that they might recover the same in virtue of the rights of the said Vehlein, as trustees of the said Whitney, Haggerty and Griswold.

The plaintiffs introduced in evidence the deeds, contracts and powers of attorney referred to, and proved such compliance with the contract, as was alleged by the records from the land office, showing that there had been issued by the commissioner of the colony the number of leagues stated in the petition, to families and single men; and proved that neither Vehlein, nor any one for him, had received any premium lands for introducing, colonizing and settling the said families and single men, in the colony.

The defendants proved that Dey, Sumner, Curtis, and the directory, Whitney, Griswold and Haggerty, were citizens of the states of New York and Massachusetts at the date of the contracts with them by Zavala, Vehlein and Burnet, and had so remained up to the trial of the case.

The parties waived a jury, and submitted the case to the court, and judgment was rendered for the defendant. The plaintiff and intervenors, who took their appeal, assigned for error: 1st. The judgment of the court refusing the relief prayed for, in the plaintiff's and intervenors' petition, or so much as was warranted by the facts proved. 2d. The court erred in rendering judgment for the defendant on the answer alleging the former alienage of the trustees of the empresario Vehlein. or his assignees.

The opinion in this case applies to another case between the same parties; the facts in each were substantially the same, except that the plaintiff and intervenors in the other, sued in right of the empresario contract of Zavala, under whom they claimed, by the same state of facts as presented in this case. Both suits were filed on the 16th day of December, 1857.

J. A. & R. Green, for the appellants. The facts of this case are the same as in the case of The State v. Burnett, 9 Tex. 48,with the exception, that in this case it is admitted that Dey, Sumner, Curtis, Haggerty, Griswold, and Whitney, were aliens to the republic of Texas,...