Smith v. Thomasa Power. Ex'x.

• Decision Date: 01 January 1859
• Citation: 23 Tex. 29
• Parties: SARAH D. SMITH, ADM'X, v. THOMASA POWER. EX'X.
• Court: Texas Supreme Court

23 Tex. 29

SARAH D. SMITH, ADM'X,

v.THOMASA POWER. EX'X.

Supreme Court of Texas.

1859.

That grants of land within the border or coast leagues, upon concessions to purchasers, by the state of Coahuila and Texas, unless made with the assent of the federal government, are void, is no longer an open question in this court; and the fact that the federal government had given its assent to a colonization contract, embracing the littoral leagues, within the limits of which such concession was to be located, is no proof of the assent of the federal government to such grant. 3 Tex. 321, 499;5 Tex. 410;9 Tex. 410; 556; 21 Tex. 37;26 Tex. 180.

A series of decisions of this court, settling the construction of the local law upon which the titles to real property largely depend, must be regarded as emphatically the law of the state; and should be binding upon this, and every other court in which these titles may be drawn in question.

Because the best interest of society, no less than the dictates of reason and natural justice, require uniformity of decision, the supreme court of the United States hold the local law of the state to be the law of that court, in deciding upon the rights of parties to real property within the state.

A void grant cannot constitute the basis, or a link in a chain of transfer, of title “from or under the sovereignty of the soil;” and, consequently, is not a title or color of title, under which a possession of three years will bar an action by the true owner. Though such a grant need not carry with it the paramount title, it must be valid as against the government, when tested by itself, and not tried by the title of others. Post, 36, 135.

Where a defendant's possession commenced before the passage of the statute of limitations, a sufficient length of time, by the rule in Gautier v. Franklin, to have barred the plaintiff's cause of action, if it had been then in existence; but the defendant was not in possession ten years subsequent to the passage of the statute of limitations, or from the accrual of the plaintiff's right of action: Held, that the defense of the statute of limitations, as presented by the record, viz., that the defendant had held quiet and peaceable possession of the land described, using and enjoying the same for more than ten years next preceding the commencement of the plaintiff's suit, could not avail him.

Limitation does not run against the state, and, in cases like the present, it does not commence to run against a party claiming under the government, until the right accrues to the claimant.

The burden of proof is on the party who relies upon the defense of limitation. If the plaintiff rely upon a patent, from the date of which the bar of the statute is not complete, it is incumbent upon the defendant to prove the date of the plaintiff's location or survey, if material to his defense.

The lapse of time, that will authorize the presumption of a grant, where there is no person claiming adversely to the party in possession? and whether ten years possession, begun or continued after the passage of the act of limitation, will give title against all persons but the government, precluding the right of a claimant by location made within the ten years? are questions not involved in the decision of this case, and upon which the court are not to be understood as expressing any opinion.

APPEAL from Calhoun. Tried below before the Hon. Fielding Jones.

This suit was commenced on the 3d of October, 1849, in the county of Refugio, by the appellant's intestate against the appellee's testator, to try title and recover possession of twelve hundred and eighty acres of land, situate in said county, for which a patent was issued to the plaintiff on the 8th of April, 1841. On the 12th of March, 1850, on motion of the plaintiff, the venue was changed to the county of Calhoun.

The defendant pleaded not guilty. That the land sued for was a part of a grant of four leagues, that had been made to him and James Hewitson, by the proper authorities of the state of Coahuila and Texas, the title for which had been perfected to them according to law. Three years' possession under title. Three years' possession under color of title. And “that he has held quiet and peaceable possession of the land in plaintiff's petition described, using and enjoying the same for more than ten years next preceding the commencement of this suit; and this he is ready to verify, wherefore he prays judgment.”

The plaintiff read in evidence his patent, and proved that the defendant was in possession of the land. The defendant gave in evidence the petition of James Hewitson and himself, empresarios of the colony of Hewitson and Power, to the commissioner of said colony, dated September 10, 1834, asking that a title be given them for seven and a quarter leagues of land (in the different surveys as designated, one of them being for four leagues), which they stated they were entitled to, as Mexican citizens, by deed of purchase bearing date December 24, 1829, for eleven leagues of land each, as they said was apparent from the accompanying documents. The action of the commissioner, Jose Jesus de Vidaurri, on this petition, who, on the 15th of September, 1834, after reciting that the parties were entitled to the premium or preference of locating, within the colony of which he was commissioner, that they were empresarios, and the grants of land, to the amount of eleven leagues, which the supreme government of the state, by its decree of December 24, 1829, granted to them as Mexican citizens, awarded to them the land asked for in their petition. And also the title for the said land, made by Vidaurri, the commissioner, on the said 15th September, 1834, by virtue of his decree of that date. The defendant proved that the land described in the plaintiff's patent, was part of the grant of four leagues made to Hewitson and himself, as aforesaid. The plaintiff admitted that the defendant had been in possession of the land sued for from July, 1838, until the commencement of his suit. The proof showed that the land was within twelve or fourteen miles from the gulf of Mexico, and within the bounds of the former colony of Hewitson and Power.

There was a verdict and judgment for the defendant; and a motion for a new trial, which was overruled.

Smith, for the appellant.

Hughes, for the appellee.

WHEELER, C. J.

No question is more authoritatively settled by the repeated decisions of this court, than that the consent of the federal executive of Mexico was essential to the validity of a grant of lands, of the character of the present, within the border and coast leagues. Edwards v. Davis, 3 Tex. 321;10 Id. 316;Republic v. Thorn, 3 Id. 499;5 Id. 410;9 Id. 410, 556. In the case of Smith v. Power, the parties to this appeal, 14 Tex. 146, it was held, that the grant here in question, under which the defendant claims, could not be distinguished from those which had been passed upon in former cases; and, upon the authority of those cases it was decided, that the grant, wanting such consent, was void. That question, therefore, cannot be considered, as now, an open one. A series of decisions, continued almost from the organization of this court down...