Warren v. Shuman

• Decision Date: 31 December 1849
• Citation: 5 Tex. 441
• Parties: WARREN v. SHUMAN AND OTHERS.
• Court: Texas Supreme Court

5 Tex. 441

WARREN

v.SHUMAN AND OTHERS.

Supreme Court of Texas.

December Term, 1849.

A judgment for costs merely, without any order disposing of the subject-matter of the controversy, is not a final judgment, and an appeal or writ of error will not lie from it. (Note 77.)

The prohibition contained in the act of February 5, 1840, against surveys on unrecommended certificates after the 1st of May of that year did not legalize by implication surveys made previously on a certificate not recommended at the time of the survey nor subsequently. (Note 78.)

A survey, whensoever made, if supported by a recommended certificate, is in contemplation of law valid; if otherwise, it is without legal foundation.

Quere whether land covered by an unrecommended certificate was open to relocation prior to the 1st of January, 1844.

Unrecommended certificates and surveys thereon upon which suit was not instituted on or before the 1st day of January, 1844, did not, after that day, constitute a claim against the Government, and consequently did not operate as a bar to the patent of the same land in favor of another claimant of the 10th of February, 1846. (Note 79.)

The construction of the 20th section of the general provisions of the Constitution is that if rights were of a character to be beyond the control of legislation before the adoption of the Constitution, they should so continue; if otherwise, they should be subject to the action of the legislative authority in like manner as they had been under the Constitution and laws of the Republic.

Where there is a conflict between a general and a special provision in the Constitution, the special provision must prevail in respect to the subject-matter of it.

The doctrine by which a junior patent or confirmation is held to have relation back to the inception of the right, and to take dignity accordingly, and thus overreach any patent which may have been granted in the meantime for the same land, but on a junior equity, applies in cases only where the senior equity is valid in law, or, in other words, the subject of cognizance by the officers of the Government at the date of the elder patent. (Note 80.)

The confirmation or establishment of an unrecommended certificate, under the extension of time allowed by the Constitution of the State, does not relate back and overreach a patent issued after the 1st of January, 1844, and before the 16th of February, 1846; but quere whether it would not overreach any inchoate claim, as a survey, &c. (Note 81.)

Any right that vested before the 16th of February, 1846, is a vested right under the provisions of the Constitution.

The intention of the convention to annul perfect rights will not be assumed, but must be embodied in express terms or be the result of unavoidable implication.

Appeal from Guadalupe. This suit was brought by the appellant against the appellees for the recovery of land. The original certificate issued from the board of land commissioners of San Augustine county, and located and surveyed on the land in controversy, was not approved as a genuine claim against the Government by the local and traveling board of commissioners appointed under the act to detect fraudulent land certificates, &c., nor was a suit instituted for its re-establishment previous to 1st January, 1844. The land was afterwards located and surveyed by virtue of the certificate which is the foundation of the defendant's title, and a patent was issued on the 10th February, 1846. The plaintiff afterwards, under the provisions of the Constitution opening the courts for that purpose, sued for the re-establishment of his certificate, and obtained judgment in his favor at the April Term of the District Court in 1847.

Upon these facts the court in effect charged the jury that, the plaintiff having failed to commence suit for the re-establishment of his certificate before the 1st of January, 1844, the land became vacant and subject to location, and the defendant's rights under a patent issued subsequent to that period, and previous to the confirmation of the plaintiff's certificate after the re-opening of the courts, cannot be divested by such confirmation.

The entry of what was termed the decree, after reciting the preliminary statements, proceeded as follows: “The jury returned the following verdict, to wit: ‘We, the jury, find for the defendant. J. H. Polly, foreman;’ whereupon it is ordered, adjudged, and decreed by the court that the defendant do recover of the plaintiff and his securities, for the use and benefit of the officers of the court, all the costs in this behalf expended, and that execution issue therefor.”

Paschal and Hancock, for appellant.

The only point presented for the consideration of the court is whether the plaintiff's right, acquired by virtue of his location and survey in 1838, ceased to exist and became extinct in January, 1844, when the courts ceased to have power to re-establish headright certificates previously issued by the board of land commissioners and which had not been confirmed by the local and traveling board, or whether such right merely lay dormant till the expiration of the time accorded by the State Constitution of 1846 for the re-establishment of headright certificates rejected.

That the plaintiff had a vested right in the land in controversy by virtue of his location and survey in 1838, which right was protected by the Constitution and laws of the Republic, there can be no doubt. His certificate had been duly and regularly issued by a board of land commissioners established by law. The survey had been properly made and the land severed from the public domain in the manner prescribed by law, and Warren's interest became vested the moment the survey was made. That his certificate is genuine is fully proved by the judgment of the District Court of San Augustine county re-establishing the same.

The only question therefore is whether there was anything in the legislation of Texas, from the date of Warren's survey in the spring of 1838 up to the time of the institution of the present suit, which divested or destroyed that interest.

The investigation of this question necessarily involves an examination of the laws relating to the re-establishment of headright certificates during the above period, as well as the powers of Congress under the Constitution of the late Republic.

We shall therefore first inquire whether the Congress of the Republic ever attempted in its legislation to divest the rights of parties to lands which had been surveyed by virtue of valid headright certificates recognized by the laws of the Republic.

Secondly, whether the Congress had the power to have done so.

The first act establishing the traveling and local board of commissioners was finally passed 29th January, 1839. (Acts 1839, p. 139.) By the fifth section of this act the Commissioner of the Land Office is restrained from issuing patents upon any survey not made by virtue of a certificate returned as genuine and legal. No restraint is imposed upon the holders of certificates from locating, nor were the surveyors inhibited from surveying by virtue of such certificates. The intention was to restrain the commissioner from issuing final patents till the certificates were reconfirmed. No attempt was made to destroy rights acquired nor to prevent future locations and surveys.

On the 5th of February following locations and surveys were prohibited after the 1st day of May, 1840. This act virtually adopted surveys previously made. (Acts 1840, p. 161, sec. 1.)

An act was passed on same day in terms recognizing all previous surveys. (Acts 1840, p. 261, sec. 1.) These surveys have been recognized from year to year since. (Acts 1841, p. 1; Acts 1841-'42, p. 5, sec. 1; Acts 1842, p. 13.)

By the first section of the act of 1841, p. 171, the power of confirming rejected certificates was conferred on the District Court. By an act of 14th January, 1843, p. 19, this privilege was limited to the 1st January, 1844. The second section of the XIth article of the State Constitution reopened the District Courts till the 1st July, 1847, for the confirmation of rejected claims.

These are the laws by which the plaintiff's right to recover must stand or fall. It is not pretended the land in controversy was subject to relocation till after the 1st January, 1844, when there ceased to exist any tribunal for the establishment of these claims.

We contend, the law having expired, the party was deprived of the remedy for attaining a complete grant, but that his interest was in nowise affected. The party was deprived of the means by which he could perfect his title, but his equitable interest remained protected by the Constitution.

This provision of the Constitution declares claims not sued on within the time prescribed should become null and void. This was an act of the sovereign power which could not be gainsaid, whether it spoke into or out of existence previous rights, except by the same high sovereign power. The last clause of this section impliedly protects all previous locations and surveys in the event the certificates are proved up as required. It provides that all relocations made on such surveys shall not be disturbed until the certificates are re-established as above directed. This is a negative pregnant with an affirmative.

The cases principally relied upon by defendants are that of Les Bois v. Brammell (4 How. R.) and Menard v. Jones, (1 Tex. R.) Neither is in point. The first had been specially barred and declared not legal evidence before confirmation. Plaintiff's claim was always legal evidence in an action of ejectment. (Acts 1840, p. 137, sec. 6; 1841, p. 170, sec. 23.)

Phillips and Vanderlip, for appellees. The charge of the court is based on the act of the 14th January, 1843. (Dall. Dig., 342.) It provides “that all suits contemplated by the first section of the act to which this is a supplement shall be commenced on or before the first day of January, 1844...