State v. Delesdenier

Citation7 Tex. 76
Decision Date01 January 1851
CourtSupreme Court of Texas

The fourth section of the third article of the Constitution, which declares that the style of the (all) laws shall be, “Be it enacted by the Legislature of the State of Texas,” is inapplicable to a “resolution, order, or vote,” as contradistinguished from a bill.”

The right of the State to appear, by her proper law officer, in her own courts, and prosecute suits in her own behalf, is an incident of her sovereignty not dependent upon any statute, and to be exercised whenever her laws are infracted or her rights invaded.

A joint resolution, imposing a particular duty upon any officer of the State, is a public statute, of which the courts are bound to take judicial notice.

Where the State sues for the recovery of lands which she claims never to have granted, it is sufficient to allege title in herself in general terms.

The land scrip issued to William Bryan, under and by virtue of the joint resolution of December 6, 1836, gave the holder no preference over the holder of any other scrip; the holder of it had no claim to any particular portion of the public lands, but a general lien upon all the lands, to be satisfied out of such portions as were unappropriated at the time he made his selection or location. (Note 15.)

The condition of eminent domain remaining in the Goverment is implied in all cases of the issue of land scrip, &c., and by virtue thereof the Government may, without violating the obligation of contracts, reserve any portion of the public domain from location, if enough remain to satisfy outstanding claims.

The repealing clause contained in the 39th section of the land law of December 14, 1837, was limited to the previous acts which related to the establishment of a General Land Office; it did not, therefore, repeal previous laws exempting islands, &c., from location, and those laws are still in force. (Note 16.)

Islands having been reserved from location and sale, unless special authority for that purpose was given by Congress, were, from that moment, severed from the public domain. No general repealing clause contained in subsequent laws can be held to apply to the act appropriating them to a particular purpose. (Note 17.)

The issuing of a patent is a ministerial act, and must be performed according to law; if it is issued against law, it is void, and those claiming under it acquire no right. (Note 18.)

Appeal from Galveston. This suit was commenced in the Galveston District Court, at the Spring Term, 1849, by the State of Texas, through her attorney general. The petition alleged that John Delesdenier, a resident of the county of Galveston, had, with force and arms, entered upon and taken possession of a certain tract or parcel of land and the buildings thereon, known as Brewster's, belonging to the State of Texas, “and is now claiming the same as his own property, and is holding, and for the last three years has held, possession thereof adversely to said State; that said land is situated in the county of Galveston; is a portion of the island of Galveston, and contains twenty-one and sixteen hundredth acres, being designated on the map made for John S. Sydnor by William H. Sandusky as lots number three and four, and known as that part of the fourth section of the survey of said island.” The petition prayed that the defendant might be cited to answer the petition; that he might be compelled to restore possession of the premises, and be enjoined from ever taking possession of or disturbing the rights of the State in relation to the same.

The defendant excepted to the petition, and answered by a general denial of the alleged trespass.

The exception was overruled by the court, the case submitted to a jury, and a verdict returned in favor of the defendant, upon which judgment was rendered.

A motion for a new trial was made, on the ground that the verdict of the jury was contrary to the law and evidence; this motion was overruled by the court, and the plaintiff appealed.

On the trial it was proved, on the part of the State, that the defendant was in possession of the land described in the petition, and had been in possession thereof for and during the time alleged in the petition; that he claimed to hold it in right of his wife.

The defendant read in evidence a patent from the Republic of Texas, issued in favor of Levi Jones and Edward Hall; the patent was for 18,215 acres of land, granted by virtue of twenty-eight and a half sections of scrip, issued on the 10th of December, 1836, to William Bryan; the patent recited that the land therein described was situated on the island of Galveston. The defendant also read in evidence a decree of partition made by the District Court of Galveston county, between Jones and Hall, by which the land in controversy was set apart to Jones, a deed from Jones to Sydnor & James, and a deed from Sydnor & James to the wife of the defendant. It was proved that the land in controversy was embraced in the above-described patent and subsequent mesne conveyances.

On the trial the plaintiff objected to the introduction of the patent to Jones and Hall as evidence; the objection was overruled, and the plaintiff excepted.

At the instance of the plaintiff, the court instructed the jury--

“1st. That whenever a tract of land shall have been once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and no subsequent general law or proclamation or sale would be construed to embrace it, or to operate upon it, although no other reservation were made of it.

2d. That any defect appearing upon the face of a patent, vitiating it, is a notice to all persons claiming under it, and they are not deemed to be innocent purchasers.”

The court refused to give the following instructions asked by the plaintiff:

“1st. That any patent issuing for locations made upon islands since the 10th of December, 1836, is void.

2d. That the patent offered by the defendant amounts to no evidence that the title to the lands called for by it was divested from the Government.”

At the instance of the defendant the court charged--

“1st. That a patent issued by the proper officers of the Government is prima facie evidence in favor of a title derived under it, until it be vacated or set aside. 2d. That every officer of the Government is presumed to perform the duties of his office according to law, until the contrary is shown by proof.

3d. That a patent for land, issued by the proper officers of the Government, is prima facie evidence of a title derived under it, and cannot be attacked in a collateral way, except for fraud in procuring its issuance.

4th. That fraud is not to be presumed, but must be proved.”

A. J. Hamilton, for appellant. The first assignment of error is the only one that will be discussed, as the judgment of this court, upon the question there raised, will determine the case. We say that the court below erred in admitting in evidence the patent to Jones & Hall.

A patent issued without authority of or contrary to law is void. (Polk's Lessee v. Wendal, 9 Cr. R., 99; Clarke v. Graham, 6 Wheat. R., 577; Stoddard v. Chambers, 2 How. U. S. R., 284; 10 Bac. Abr., p. 374, (head, VOID AND VOIDABLE;) and see, particularly, Wilkins v. Dinsman, 7 How. U. S. R., 89.)

The statement of facts shows the land in controversy is on Galveston Island; the patent recites the fact, and was issued on the 10th day of December, 1836.

On the 10th day of December, 1836, the Congress of the late Republic passed a joint resolution “authorizing the President to negotiate a loan for twenty thousand dollars,” the 3d section of which is in the following terms:

And be it further resolved, That all islands belonging to this Republic shall be, and are hereby, reserved for the Government use, except the President be authorized specially by Congress to sell them.” (Hart. Dig., art. 1780.)

Thus, then, the islands were reserved from location, by act of Congress, prior to the issuance of the patent; and, unless this reservation was repealed by some subsequent act, the patent was issued contrary to law, and is void.

It is contended that this reservation was repealed by the act of the 14th December, 1837, (Hart. Dig., p. 580,) entitled “an act to reduce into one act and to amend the several acts relating to the establishment of a General Land Office.” The last clause of the 39th section of this act is in the following terms: “And all laws heretofore enacted on the subject of public lands shall be, and they are hereby, repealed.” (Hart. Dig., art. 1875.)

This does not repeal the joint resolution of the 10th December, 1836, reserving islands, for the reasons following:

1st. The acts referred to in the caption of the act of 1837 are the only laws to which the repeal is intended to apply. It will be found, from an examination of this act, that its only object was to perfect and reduce into system the various acts relating to the establishment of a General Land Office, and not to change any previous law defining what constituted the public domain. The repealing clause could only be in reference to acts the provisions of which were incompatible with or contrary to that act. The court will look to the object the Congress had in view, the remedy intended to be afforded, and the mischief intended to be remedied. (25 Me. R.; 3 Cow. R.; 3 Mo. R.; 1 Mo. R., 147; 2 Pet. R., 662; 15 Johns. R., 358; 1 Pet. R., 64.)

The object in view by the Congress may be gathered from the provisions of the act. There is no uncertainty or ambiguity in the provisions of the act. When considered as a whole, or each provision taken separately, it will be seen that the only object or intention was to provide a system for the distribution of the public lands to legal claimants.

If there is any ambiguity or uncertainty as to the laws which were intended to be repealed or changed by it, we have a right to look to the caption...

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63 cases
  • State v. Balli, 8187; Motion No. 16405.
    • United States
    • Supreme Court of Texas
    • 20 Diciembre 1944 authorized specially by Congress to sell them." Hartley's Digest, Page 86 Art. 1779, as quoted in the case of State v. Delesdenier, 7 Tex. 76, loc. cit. On June 3, 1837, it adopted an act for the relief of James Erwin and others (Hartley's Digest, Art. 1810), the object of which was to d......
  • Schneider v. Lipscomb County Nat. Farm Loan Ass'n, A-1083.
    • United States
    • Supreme Court of Texas
    • 14 Mayo 1947
    ...impossible to execute in its behalf a writ of habere facias possessionem." In our State the Attorney General, since State v. Delesdenier, 7 Tex. 76, has had and exercised authority to assert the State's title by bringing suit in the name of the State for the recovery of title and possession......
  • Robinson v. Crown Cork & Seal Co., Inc., 14-04-00658-CV.
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    • Court of Appeals of Texas
    • 4 Mayo 2006
    ...Clause may yield to statutes necessary to safeguard the public welfare. See Barshop, 925 S.W.2d at 635 (citing State v. Delesdenier, 7 Tex. 76, 99-100 (1851)). The part of Delesdenier cited by Barshop is dicta because the court held that the statute in question affected the remedy and did n......
  • State v. Foster
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    • United States State Supreme Court of North Dakota
    • 24 Noviembre 1905
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