State v. Powell

• Decision Date: 21 December 1910
• Citation: 134 S.W. 746
• Parties: STATE v. POWELL.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

134 S.W. 746

STATE v. POWELL.^†

Court of Civil Appeals of Texas.

December 21, 1910.

Rehearing Denied February 15, 1911.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by the State against E. M. Powell. Judgment for defendant. Plaintiff appeals. Affirmed.

Jewel P. Lightfoot, Atty. Gen., and L. A. Dale, Asst. Atty. Gen., for the State. Holloway & Holloway, for appellee.

RICE, J.

This is an action of trespass to try title, brought by the state against appellee, for the recovery of 1,280 acres of land situated in Wichita county. Defendant replied by plea of not guilty. The case, having been tried before the court without the intervention of a jury on an agreed statement of facts, resulted in a judgment in behalf of appellee, from which the state has prosecuted this appeal.

The facts as agreed upon are briefly, in substance, as follows: That the John Wheat Confederate scrip certificate was located on the land in question by E. M. Powell, assignee of said Wheat. At the same time said Powell surveyed for the state an equal quantity of land, which, however, was not contiguous to the land in question, but was located in another county. The land so surveyed for the state was taken by the state under said survey and sold by it. The land in question was patented to said Powell as assignee of John Wheat by patent No. 165, vol. 37, dated May 21, 1888. Prior to the 4th day of June, 1895, the state of Texas instituted a suit against said Powell in the district court of Wichita county to cancel said patent on the sole ground that the land surveyed for the state was not contiguous to the land covered by the patent, and on this issue between the state and said Powell judgment was rendered in said cause on the 4th day of June, 1895, a copy of which judgment was attached to said agreement, and is made a part of said statement of facts. This judgment was not appealed from. The land in question was duly assessed for taxes from the date of said patent, and all taxes thereon were paid by said Powell to the year 1908, inclusive.

It is conceded by the defendant that the state of Texas is entitled to a judgment for said land in this suit by virtue of said judgment of June 4, 1895, unless the act of the Legislature of April 7, 1897, validating Confederate scrip locations, had the effect of validating and confirming appellee's title, notwithstanding the intervening judgment of June 4, 1895. It is conceded by the state that but for the judgment of June 4, 1895, the validating act of April 7, 1897, would have had the effect of validating the defendant's title. The exhibit referred to is a final judgment of the district court of Wichita county rendered on June 4, 1895, giving judgment to the state of Texas for the land sued for, and decreeing cancellation of the patent therefor, being the same patent above mentioned. Prior to the act of 1897 it had been held by our Supreme Court that the act of 1881 (Acts 17th Leg. c. 106) contemplated that the surveys to be located by virtue thereof under Confederate scrip certificates, in order to be valid, should be contiguous to each other. See Von Rosenberg v. Cuellar et al., 80 Tex. 249, 16 S. W. 58. It appears from the statement of facts that the land surveyed for the state under this certificate was not contiguous to the land covered by the patent, and that the judgment of the district court of Wichita county canceling the same was based alone upon this fact.

There are but two questions arising in this appeal as presented by appellant's assignments. The first is whether or not the validating act of 1897, above referred to, by reason of its terms, had the effect of validating the patent to appellee, notwithstanding the intervening judgment rendered in behalf of the state canceling the same. The second question is: Did the land in issue, by reason of the judgment of the district court canceling the patent, at once become the property of the public free school fund of the state, and therefore not subject to location under the certificate, notwithstanding the act of 1897, validating said locations? The state contends that the first question should be answered in the negative, and the latter in the affirmative; the first for the reason that the act in question would be, in effect, judicial legislation, and would nullify the judgment rendered long prior to its enactment, and, further, because it cannot be gathered from the act itself that it was intended to have such effect. In 1897 the Twenty-Fifth Legislature (page 113) passed the following act: "Sec. 1. Be it enacted by the Legislature of the state of Texas: That all patents issued by the state upon locations or surveys of land made by virtue of any certificate issued under the provisions of an act of the Legislature of the state of Texas, entitled `An act granting to persons who have been permanently disabled by reason of wounds received while in the service of this state or of the Confederate States, a land certificate for twelve hundred and eighty acres of land,' approved April 9, 1881, be and are hereby validated, and the fact that the school and individual sections, or surveys made by virtue of any such certificate, may not have been made contiguous or adjacent to each other, shall not be held to invalidate the patent issued on such survey, nor to invalidate the right of the public free school fund to the land located or surveyed for the benefit thereof by virtue of any such certificate." It will be seen, therefore, that by the terms of the law it was not the object of said act to set aside the judgment of the court, but only to validate locations and patents to surveys made thereunder, notwithstanding the fact that the sections surveyed by virtue thereof were not contiguous to each other. So that the law, in effect, simply declared that the failure to so locate the two surveys did not render the location void, but declared that the same should be validated.

Appellee contends that the act in question rendered his location and patent valid ab initio, notwithstanding the intervening judgment in favor of the state. We think this view correct. It is true that appellee concedes that the original location and patent were invalid under the rule laid down in Von Rosenberg v. Cuellar, supra, but it is also conceded by the state that but for the judgment of June 4, 1895, the act of 1897 would have had the effect of validating defendant's title. The decree setting aside the patent did not render it void. It was already so under the authority last quoted.

Appellee further contends that the case of Utter v. Franklin, 172 U. S. 416, 19 Sup. Ct. 183, 43 L. Ed. 498, is conclusive of the question presented. In that case, as shown by his brief, "Pima county, Ariz., had issued $200,000 in bonds in aid of a certain railroad. Suit was brought to recover the interest on $150,000 of these bonds. The Supreme Court of Arizona and the Supreme Court of the United States held that the bonds were invalid. Thereafter certain validating acts were passed by the territory of Arizona and by the Congress of the United States, the effect of which acts was to validate all such bonds issued in aid of railroads. After the last validating act of Congress, a mandamus proceeding was brought against the territory officials to compel them to issue new bonds in lieu of the original issue, which had been declared void. It was insisted that the validating act did not have the effect of validating these particular bonds because they had been declared void by the former judgment. The Supreme Court of Arizona refused the mandamus on this ground, but the Supreme Court of the United States reversed that decision, and held that the bonds were validated by the act of Congress, notwithstanding the intervening judgment declaring them void." Justice Brown said in passing upon this question: "The fact that this court had held the original Pima county bonds invalid does not affect the question. They were invalid, because there was no power to issue them. They were made valid by such power being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that case was res adjudicata only of the issue then presented of the facts as they then appeared and of the legislation then existing."

In Steele County v. Erskine, 98 Fed. 215, 39 C. C. A. 173,...