Wife v. Perry

• Decision Date: 01 January 1851
• Citation: 7 Tex. 259
• Parties: HOWARD AND WIFE v. PERRY.
• Court: Texas Supreme Court

7 Tex. 259

HOWARD AND WIFE

v.PERRY.

Supreme Court of Texas.

1851.

Articles 1839 and 2175 of the Digest are cumulative, and the chief clerk of the land office may discharge the duties of the commissioner in any ovent contemplated by either statute; and when he has acted, the presumption is that some one of the contingencies existed on the happening of which he was authorized to act.

Where the equitable title of a colonist or settler is confirmed by the Legislature, the confirmation relates back to the inception of the equitable title, notwithstanding the act of confirmation may save the rights of third persons. (Note 44.)

A pretended title which consisted of the colonist's petition, followed by a blank for the certificate of the empresario or his agent, that the interested party was a colonist, &c., followed by the commissioner's order of survey, which did not name the interested party, and which contained a blank for the name of the surveyor, followed by a blank for the locality, description, metes and bounds, declaration of quality and possession of the land, followed by the customary conclusion, and signed by the commissioner and attesting witnesses; a survey was admitted to have been made: Held, To have been a mere blank form, such as the commissioner, on some occasions, left in the care of the empresario, to facilitate the colonists in procuring their lands.

By virtue of a genuine headright, the locator acquires a vested legal right, which is protected by the constitutional guaranties of the right of property. (Note 45.)

The survey of a deputy surveyor, although made for himself, on a certificate belonging to himself, when approved by the district surveyor, became the act of the latter, and was so far valid.

A surveyor could not be compelled to survey, on a first or second-class headright certificate, unless the certificate was accompanied by a certificate of the county clerk or Commissioner of the General Land Office, that it had been recommended as genuine; but a proper survey, upon a genuine claim, is valid, whether such certificate of its having been recommended was presented to the surveyor or not.

A surveyor cannot be convicted under article 1983 of the Digest if the certificate is recommended as genuine.

Where the statement of facts showed that the plaintiff admitted on the trial that the headright certificate, under which the defendant claimed, was “good,” it was held that the statement must be taken as an admission that the certificate was recommended as genuine.

Appeal from Fayette. This suit was brought by the appellants, in 1846, to recover of one Hicks, who was in possession, a league of land, claimed by the plaintiffs, in right of the wife as heir of John Hibbins. The appellee, Perry, under whom Hicks was in possession, defended. The plaintiffs claimed that in 1834 and 1835, John Hibbins petitioned for and had surveyed the league of land in question; and that it was granted to him as a colonist in Austin's colony. The defendant claimed title to the land by virtue of the headright certificate of Luke Prensall, for one league of land, issued by the board of land commissioners of Sabine county, in February, 1838, located on the land in question, in June, 1839, and surveyed in May, 1840.

The plaintiffs gave in evidence a certified transcript from the General Land Office of their alleged original title, which consisted of the petition of John Hibbins, addressed to the commissioner of Austin's colony, representing that he had been received by the empresario as a colonist; that he is a _____ man; that he had come into the colony with his family to locate, &c.; and asking that a league of land be granted him. This petition appeared to have been referred to the empresario, for his approbation and the requisite information. Then followed a blank; after which is what purports to be the order of survey, as follows: “In view of the information given by the agent, Samuel M. Williams, in the foregoing statement, I admit this petition according to law, and order that a survey of said land be made by the surveyor, Mr. ______, for the purpose of issuing to the party interested the corresponding title. Town of Austin, December 5th, 1832. (Signed,) Migl. Arcineiga.” Then followed another blank; after which was the following: “Given in the town of San Felipe De Austin, on the --day of December, 1832, which I sign, with two assisting witnesses, according to law;” signed by the commissioner and the assisting witnesses.

The plaintiff then introduced a translated copy of an instrument in Spanish, from the General Land Office, containing the field-notes of the survey, and purporting to be the title of possession, in the form usually employed in titles issued by the commissioner of that colony. This was accompanied by the certificate of the Commissioner of the General Land Office, that the field-notes of the survey of the league of land, made by William R. Hensley for John Hibbins, were embodied by him in the blank left in the original title signed by Arcineiga, in the same form of language as was required at the time the same should have been done; and that the blank was so filled up by him in accordance with the requirement of joint resolutions of the Congress of the late Republic approved on the 2d day of February, 1844. The joint resolutions referred to were then given in evidence, and are as follows: “ Be it resolved,” &c., “that the Commissioner of the General Land Office be and is hereby required and authorized to embody the field-notes of the league of land surveyed by William R. Hensley, deputy for Thomas H. Borden, surveyor, on the east bank of the Lavaca, for John Hibbins, into the blank left in the original title, which was signed by Miguel Arcineiga in the month of December, 1832; and that the said commissioner preserve the same form in relation to the language to be used in filling up the blank as was required at the time the same should have been done.

“SEC. 2. Be it further resolved, That the Commissioner of the General Land Office issue to the heirs of John Hibbins, deceased, a copy of said title, duly certified, after the same has been so amended, which may serve them as a valid and legal title to the lands therein set forth, and of which they are in possession: Provided, however, That this act shall not be so construed as to impair or affect the right of any person or persons claiming the land adversely to said Hibbins or his heirs.” Approved February 2d, 1844.

The genuineness of the documents introduced, and that the commissioner Arcineiga did the acts purporting to have been done by him, was admitted; it was also admitted that the land was surveyed, and that the field-notes embodied in the plaintiff's title were the field-notes of the survey; and that the proper fees were paid by Hibbins to the officers entitled to receive them.

The defendant offered in evidence a copy of his certificate and survey from the General Land Office, certified by S. Crosby as chief clerk, to the admission of which the plaintiffs objected; but the court overruled their objections and the copy was given in evidence. The defendant then introduced in evidence the depositions of the county surveyor of Colorado district, and of Samuel M. Williams, agent of the empresario, Stephen F. Austin, acting as such at the date of the plaintiff's title, taken in answer to interrogatories.

By the former, the defendant proved the location of the certificate upon the land in question in June, 1839, and the subsequent survey. The witness also testified, in answer to cross-interrogatories, that the survey was made by the defendant as deputy surveyor for himself; that he had at the time an interest in the certificate.

It was admitted that the certificate under which the defendant claimed was a good certificate; that it was located on the land in question; surveyed by the defendant for himself; and that the survey was approved and recorded by the district surveyor in 1840.

The witness Williams testified that he was familiar with the regulations and manner of transacting the business of the land office in Austin's colony, the same having been under his management from 1824 to 1835; that on some occasions the commissioner of the colony left blanks with his signature in the care of the empresario, to facilitate the colonists in procuring their titles when the commissioner was absent; that it was indispensable that the commissioner should appoint a surveyor to survey the land; the surveyor, under an order, surveyed a district of country, and made returns thereof to the land office; and from the plots or information derived from the surveyor, the colonists made their selections. It was required of a colonist, in order to obtain land, to make a declaration to the empresario of his name, age, where from, whether married or single, &c.; that before any title could issue to a colonist, it was an indispensable prerequisite that, on the petition of the colonist, there should be a declaration to the commissioner, signed by the empresario or his agent, that the interested person was a colonist, a man of good habits, &c., and that no title issued without it; that this declaration should have occupied the first blank in the plaintiffs'...