Sutherland v. Deleon

• Decision Date: 31 December 1846
• Citation: 1 Tex. 250
• Parties: GEORGE SUTHERLAND ET AL. v. FERNANDO DELEON
• Court: Texas Supreme Court

1 Tex. 250

GEORGE SUTHERLAND ET AL.

v.FERNANDO DELEON

Supreme Court of Texas.

December Term, 1846.

Appeal from Victoria County.

There is no rule of law which would authorize a court to declare an act of the legislature unconstitutional, unless it be clearly so. It would be a great abuse of judicial power to invoke the aid of the preamble to an act, to render it unconstitutional, when without such aid the objection would not exist.

The “retrospective” laws which are prohibited by the constitution are such acts as give a right where none before existed; and by relation back, give the party the benefit of it. But where a right already exists, it is in the power of the legislature to devise and provide a remedy.

The process referred to in the 7th section of the act of congress of December 22, 1836, “establishing the jurisdiction and powers of the district courts,” in such process as may be issued from the district courts in ordinary suits; and not such as the judge has been required to issue. It does not relate to mandamus, arrest and attachment. The section was not intended to modify the laws regulating attachments.

When a court has jurisdiction of the person, or of the subject matter, and the jurisdiction has attached in the particular case, its judgment cannot be questioned by a collateral inquiry; and until reversed, it is binding on all other courts. But if it has not jurisdiction of the subject matter, or the jurisdiction has not attached, its judgment would be a nullity, and would give no right, and afford no defense. [ Post, 308; 2 Tex. 433;4 Id. 101, 387, 431;6 Id. 166;9 Id. 256;21 Id. 363;24 Id. 468;27 Id. 80.]

This was an action of trespass to try title. The defendants pleaded the general issue.

The plaintiff offered in evidence in support of his action two deeds or grants from the Mexican authorities. One for a league of land to himself, and the other for three leagues and sixteen labors to one Garcia, with Garcia's transfer of title to himself. He introduced witnesses by whom he proved the official character and signatures of the various officers whose names were to the grants; the seal of the state of Coahuila and Texas; the signatures of the parties; and the death or absence from the republic of the subscribing witnesses. The defendants objected to these documents going to the jury on the ground that they were not on stamped paper, were not sealed with the seals for the proper years, were not legalized, and that there were no receipts on the margins by the proper officers, of the payment of the stamp duties and public dues; but the objections were overruled by the court and the deeds admitted; to which decision the defendants excepted.

The plaintiff then introduced the plot of each tract of land, and also the county map, showing their connection in one body, and represented on the county map as DeLeon's tract. The boundaries of the tract were proved, as also the correctness of the county map.

The plaintiff also proved that the land in question had been occupied by him as a rancho, with various kinds of stock, uninterruptedly from the year 1826 to 1836, except while in possession of the public enemy; and that he and his family were ordered to leave the same in common with all other families, by General Rusk.

The defendants, as the foundation of their title to the lands in controversy, offered in evidence a judgment rendered by the district court of Victoria county at the March term, 1839, in the case of Menifee v. Fernando DeLeon; and also an execution issued on said judgment; and a levy and sale and deed by the sheriff to George Sutherland, one of the defendants; to all of which the plaintiffs objected, and the objection was sustained by the court, and the evidence ruled out upon the ground that the judgment was a nullity and void; to which decision the defendants excepted.

The defendants then proved that a man by the name of Nail was in possession of the rancho, formerly occupied by the plaintiff, in the spring of 1840, and continued in possession until the Comanche invasion in August, 1840; at which time or shortly afterwards, he abandoned it and moved away; and that while in possession he, Nail, stated that he held under George Sutherland, one of the defendants. They also proved that a man by the name of Porter had occupied the same premises, with a stock of cattle; but whether before or after Nail, or under whom, was not shown. It was also proved that Fitzpatrick, one of the defendants, was living on the land at the commencement of this suit, in May, 1844, but it was not shown when his occupancy commenced. The defendants then again offered in evidence the same judgment, execution, levy, sale and deed, as color of title, which being objected to, were ruled out by the court, with the exception, that the deed alone might go in evidence under the 16th section of the “act of limitations” of February 5, 1841; to which decision the defendants excepted.

The defendants also proved that the plaintiff left Texas in 1836 and went to New Orleans, and from thence, in 1837, to Matamoros; and that he returned to Victoria in the latter part of 1842 or first of 1843.

The defendants then proposed to prove that the plaintiff, at the commencement of this suit, was an alien enemy, which being objected to was ruled out by the court, because the alienage of the plaintiff had not been specially pleaded; to which decision the defendants excepted.

The defendants moved the court to charge the jury that if they believed from the county map or other evidence, that the lands in controversy were within the twenty border leagues on the coast, they could not find for the plaintiff, unless he produced authority from the supreme government of Mexico for issuing the grants within that boundary; which instruction the court refused to give, but instructed the jury that there was no testimony before them in relation to that matter, and that they could not inquire into it.

The defendants also moved the court to instruct the jury that if the plaintiff had shown no valid paper title, and the defendants were in possession, they could find for the defendants. The court instructed the jury that if there were no valid paper titles on either side, and the plaintiff had voluntarily abandoned the premises, they could find for the defendants, but not otherwise.

The court also instructed the jury that the objections urged against the deeds of the plaintiff would not vitiate them; that if they believed them to be genuine, and that they emanated from the proper authorities, they were sufficient to sustain the plaintiff's action. That if they believed the deeds to be void, the original order of survey and field notes, if established by testimony, were sufficient to sustain an action of ejectment. That the deed of the sheriff to Sutherland was not sufficient to give color of title under the 15th section of the act of limitations, and that the jury could not take into consideration the judgment rejected by the court; but if the defendants had proved five years' peaceable possession under the deed, it would entitle them to recover. To all of which instructions the defendants excepted.

The judgment offered in evidence by the defendants as the foundation of their title was rendered at the March term, 1839, of the district court of Victoria county. The suit was commenced by attachment, which was issued by the district judge on the petition of the plaintiffs, alleging that the defendant, “a Mexican, now absent from the country, and out of the reach of the ordinary process of the law, did, in the spring of 1836, take and carry away from the store and warehouse of your petitioners,” etc., “sundry articles of merchandise,” etc. The petition prays that the judge will order a writ of attachment to issue “in conformity to the law of the 18th of December, 1837, against the property,” etc. It was sworn to by Menifee, one of the plaintiffs, who stated that to the best of his “belief, the merchandise was taken and carried away from our possession by one Fernando DeLeon, a Mexican,” etc. The attachment was issued on the 20th of September, 1838, and levied on four leagues of land, as the property of DeLeon, on the 22d of the same month. On the 21st of March, 1839, an attachment bond was executed and filed by the plaintiffs, and the cause proceeded to trial. In the transcript of the record of the proceedings there is a bill of exceptions, signed by the judge, which states “that at this time came on this case, upon the petition, oath, judicial order, attachment, return of attachment, order of publication against the defendant, a non-resident, when A. Neill, attorney, came into court and moved the court to be permitted to enter an appearance for the defendant, which motion was opposed by the plaintiffs' attorney,” etc.; the court overruled the motion, but appointed the said Neill curator ad litem “to appear and plead for the defendant.” The jury returned a verdict for the plaintiffs, upon which the judgment was entered and execution issued, directed to the sheriff of Victoria county, commanding him “ that of the goods, chattels and estates of the said Fernando DeLeon, he cause to be made,” etc. The execution was levied upon the lands of the defendant, and George Sutherland, one of the plaintiffs, became the purchaser.

J. W. Robertson, for appellants.

The objections urged in the court below, and which we anticipate will be urged in this court against the validity of the proceedings in the attachment suit, taken in the order in which they arise, are as follows:

1st. Because the writ of attachment was issued by and tested in the name of the judge, when it should have been issued by and tested in the name of the clerk.

2d. Because there is no evidence in the record that a citation ever issued to the defendant in attachment.

In reply to the first objection we say that the act of congress “establishing the jurisdiction and powers of the district...