Smith v. Power

• Decision Date: 31 December 1847
• Parties: JOSEPH F. SMITH v. JAMES POWER
• Court: Texas Supreme Court

2 Tex. 57

JOSEPH F. SMITH

v.JAMES POWER

Supreme Court of Texas.

December Term, 1847.

Appeal from Travis County.

Upon an application for a mandamus it is the duty of the plaintiff to summon, by proper process, all the parties who are interested, if known, to come in and defend their interests. [5 Tex. 484;10 Tex. 375;29 Tex. 509.]

If persons interested in the subject matter in controversy have not been summoned by the plaintiff, still, if they have a knowledge of the proceeding, it is their duty to come in and defend their interests; failing to do this they have no right to bring a separate action to litigate the same matter in another suit. Such separate action is but a multiplication of suits and of the vexation of litigation.

When a separate action is improper no injunction to restrain the proceedings in the original suit for causes alleged in that separate action should be granted, and when granted should be dissolved on motion.

When the time limited by an injunction for restraining proceedings has expired previous to the hearing of the cause in the appellate court, that court may order the injunction to be dissolved although the time had not expired when the motion to dissolve was heard and decided in the lower court, and the expiration of the time was not made a ground in the lower court for dissolution.

“Where the answer denies all the circumstances upon which the equity is founded, the injunction will be dissolved as a matter of course; otherwise it will be continued to the hearing.” In this case, “the allegations of the answers do not severally, or taken altogether, present any clear ground for the dissolution of the injunction before the hearing.”

The plaintiff in error, Joseph F. Smith, for himself, and as agent for others, instituted suits in the district court of Travis county, praying for a peremptory mandamus against the commissioner of the general land office, to compel him to issue patents for certain lands which had previously been located and surveyed in the county of Refugio for him, Smith, and for those whom he represented.

Sometime after the institution of these suits and while they were pending, the defendant in error, James Power, filed his bill in the same court, alleging that the lands located by Smith and others, and for which they were seeking by their mandamus suits to obtain patents, were his property, lawfully obtained from the government of Coahuila and Texas, anterior to the revolution and separation of Texas from Mexico. He alleged that his titles to the lands were all obtained in good faith and for sufficient consideration; that the lands were regularly located and surveyed by the proper officers of the country at the time and in strict conformity with all the laws then in force; that his titles were duly and legally executed by the proper officer of the government, and that they were on file in the general land office of Texas; and that Smith, when he made or caused the location and surveys to be made for himself and others on said lands, well knew that they were not public lands, subject to location, but that they were his, Power's, lands. It is also alleged in the bill, that in consequence of the confusion produced in the land office in the county of Refugio by the wars of the revolution, the destruction of its maps and papers, and the impossibility of restoring things to their proper state by the subsequent almost entire depopulation of the country, from the frequent inroads and and encroachments of the enemy, thus preventing the transaction of business and particularly the resurveying and platting of large bodies of wild lands in a country wholly unprotected and peculiarly exposed to the depredations of the enemy, the lands of Power are not delineated on the map of Refugio county; and it admits that in consequence of many of his, Power's, principal calls being for the lands of others, the position of which were well known at the time his surveys were made, but the plats and titles of some of which have since been taken from the country or were lost or destroyed in the general confusion produced by the war of the revolution, that the commissioner of the general land office cannot now correctly delineate his lands upon the county map, until they are resurveyed. The bill further alleges that he, Power, after great efforts had succeeded in obtaining the passage of a law requiring all the lands held under old Mexican titles in the county of Refugio to be resurveyed at the expense of the owners thereof, and the plats of the same to be correctly delineated on the general map of the county, as a guide to direct the commissioner of the general land office in the issue of patents; but from the length of time allowed for these resurveys to be made, he is apprehensive that patents will be issued upon locations made upon his lands, before the surveys are returned, unless the commissioner is restrained from issuing such patents. The bill then prays for an injunction to restrain the commissioner from issuing patents to the said Joseph F. Smith and others, for any of the lands which it describes, where surveys are known or appear to have been on said lands, but which cannot be positively determined in consequence of the defects in the map of the county in not representing the lands thereon, until the same have been resurveyed and the plats thereof represented on the county map. It further prays for an order of survey to resurvey said lands, and that Joseph F. Smith and others be made parties, and enjoined from prosecuting their suits against the commissioner of the general land office until it can be ascertained whether the lands claimed by said Smith are not the lands of the complainant.

An injunction was ordered and issued in accordance with the prayer of the bill. Smith subsequently filed his answer and amended answer, and moved to dissolve the injunction. He alleged that the plaintiff's bill was too vague and general to support an action; that his claims by purchase have no foundation in law or reason; that his titles were issued by a person who had no authority in law, or if he had, he transcended his authority; that the titles so issued have no identity as to location, and do not conflict with the defendant's claims; or if they do, were made upon surveys that contain from five to ten times the quantity of land called for in the grants, contrary to the laws then in force. He sets out his own locations and surveys, and says he does not think they conflict with the complainant's according to the plaintiff's calls, boundaries, courses and distances. He alleges that the boundaries of one of the plaintiff's titles for eleven leagues would embrace one hundred and ten leagues, which is a fraud apparent on its face, and would avoid the grant, and that the title was obtained by false suggestions and fraudulent representations; that the plaintiff's title for a headright is void, and that subornation of perjury was committed in obtaining it; that the plaintiff was not an empresario; that he had no contract to colonize, and that his pretensions to a colony were settled by his acceptance of sixteen leagues of land in full for his nominal claims to a colony.

There are other parties and matters embraced in the bill, and other allegations in the answer, some of which are adverted to in the opinion of the court, but as the foregoing contains the material facts involved in the question presented to and decided by the court, it is deemed unnecessary to give a further detail of them.

The district court refused to dissolve the injunction, from which interlocutory order, the present writ of error was sued out.

Paschal and Paschal, for plaintiff in error.

Webb and Howard, for defendant in error.

Mr. Chief Justice HEMPHILL delivered the opinion of the court.

The plaintiff in error being one of several defendants in an action instituted by James Power, defendant in this court, and plaintiff below, had, on filing his answer, moved to dissolve an injunction which had been granted; and on the overruling of this motion, this writ of error was sued out.

The said plaintiff, James Power, had filed his petition, stating that in part consideration for services rendered by himself and his partner, James Hewitson, to the then existing government of Coahuila and Texas, in colonizing and settling a certain tract of country then belonging to the said state, but now lying within the limits of the republic of Texas, and known as Power and Hewitson's colony, there were granted him, by the proper authorities of the said state of Coahuila and Texas, several leagues of premium lands, the locations of which are described, and are stated as lying and situate, or the greater part of them, within the now county of Refugio. He further represents, that on the 24th December, 1829, there was granted to him and his said partner, James Hewitson -- but in their individual rights as Mexican citizens, by the proper authorities of the said state of Coahuila and Texas -- two separate grants, or concessions of eleven leagues of land each, the locations and boundaries of which are described, and they are stated as lying and being situate within the county of Refugio.

He further represents that there was granted to one Francisco del Prado, a Mexican citizen, by the government of Coahuila and Texas, on the 22d of January, 1831, a concession of eleven leagues, in conformity with the law of colonization, of the 24th March, 1825, and that anterior to the 26th November, 1834, he purchased a concession of eleven leagues of land from one Francisco de la Pena, a citizen of Mexico, which concession was made to the said Francisco de la Pena, in conformity with the law of colonization. The locations of the lands embraced in these concessions are defined; and they are described as lying and being within the county of Refugio.

He also claims some additional lands as granted to him and his partner, for their respective headrights,...