Marsh v. Weir

Wheeler, J. The Court excluded the plaintiff's title be•cause it did not appear on the face of the grant, that it was ■made with the consent of the 'Executive of Mexico. In this the Court manifestly erred. This was a grant made under the 17th Article of the Law of the 24th of March, 1825, in augmentation of the quantity previously granted to the plaintiff as a colonist. It was granted to him as a colonist, on ac■count of his possessing the qualities mentioned in the 17th Article, which entitled the colonist to an augmentation of the •quantity mentioned in the three preceding Articles of the Law. And it has never been held necessary that the consent ■of the Federal Executive of Mexico should appear on the face -of the title of a colonist, to land granted under a contract to -colonize within the border or coast leagues. The contrary has been repeatedly decided. It is sufficient that the consent was given to the contract to colonize the territory comprising the grant. (Hatch v. Dunn, 11 Tex. R. 708 ; Republic v. Thorn, 3 Id. 510.) — 107 — It is evident that this opinion of the Court, upon the validity of the grant, led to the rulings by which the other evidence offered by the plaintiff was excluded. And indeed after excluding the grant, it was quite unnecessary to proceed further with the case, as that ruling was decisive against the plaintiff. But the defendant was permitted by the Court to introduce evidence for the purpose of obtaining a verdict upon the merits of his title. This appeal therefore brings under revision the evidences of title of the parties respectively. The plaintiff’s evidence, improperly excluded, establishes very satisfactorily, that although the original grant of the 8th of July, 1824, was made ostensibly to the plaintiff as the head of a family, yet he received three-fourths of it in trust for McCormick and the other persons who constituted the family, and that he was in fact the grantee of but one-fourth of the league. McCormick was in fact the grantee, as a colonist, of the one-fourth now claimed by the defendant in his right; and the plaintiff was but an instrument by which the Government transmitted to him the title. (See Porter v. Hill, 14 Tex. R. 69.) The deed from the plaintiff to McCormick, of the 28th of December, 1824, was but the execution of the trust confided in the plaintiff by the Government, for the benefit of the grantee. In the making of it, the plaintiff acted in no other capacity than, as the agent and instrument of the Goverment, to vest title in McCormick to his land as a colonist. It was not a sale by the former to the latter.— The relation of vendor and vendee did not subsist between the parties to the conveyance; and they are not affected by any of the principles applicable to that relation. McCormick took the title as a colonist and not otherwise; and the having been made the instrument of its transmission does not affect the plaintiff with the relations of vendor, or in any manner conclude or affect his rights, any more than if the title had passed directly from the Government to McCormick, without his agency or intervention. The mode of con — 108 — stituting a family, adopted in this instance, for the purpose of making a grant under Austin’s first contract, has been heretofore recognized and the grant held valid. (Hardeman v. Herbert, 11 Tex. R. 656.) Our conclusion then is, that McCormick was the grantee of the fourth of a league of land in question as a colonist; and when it became vacant by reason of his abandonment of the country, and the declaration of forfeiture, the plaintiff had the same right as any other person to apply for and receive.a regrant of it: and there was nothing to prevent its appropriation by virtue of his concession. The fact of abandonment, and the consequent forfeiture, is conclusively established by a judgment of a competent tribunal. (Holliman v. Peebles, 1 Tex. R. 673.) It is no objection to the validity of the judgment, that the grantee was not served with notice. He had gone beyond the reach of process ; and moreover the proceeding was in rem, and acted directly upon the stakes of this thing. It is objected to the plaintiff’s title, that it was not executed in accordance with the power contained in the concession. This objection was not taken in the Court below, nor has it been noticed by the appellant in argument. If it had been taken at the trial, a special authority might have, perhaps, been shown, if that were necessary. But I apprehend it will be found, that as the grant related to the augmentation of a previous grant to a colonist, it was competent for the Commissioner to issue the title, although the concession empowered an Alcalde to do so. It is not perceived why the benefit of the 17th Article of the Law of the 24th of March, might not enure to a colonist who had received land under a former law, as well as to those who should receive it under the provisions -of that law; and such, appears to have been the construction placed upon the law by the authorities of the country, to whom its administration was entrusted. It appertained to the — 109 — Government to grant the augmentation, and hence to make the concession; but it is not perceived why the commission might not extend the title. It, however, does not become necessary to express a final opinion upon this question, as it was not raised at the trial, and, as we have said, a special authority may possibly be proved upon another trial. It remains to notice the defense of the Statute of limitations. The bar relied on is that of three years, prescribed in the 15th Section of the Statute, which protects the party “ in possession under title or color of title,” and which defines the term title, to mean “ a regular claim of transfer from or under the sovereignty of the soil; ” and “ color of title ” to be “ a consecutive claim of such transfer, down to him, her or them in possession, without being regular; as if one or more of the memorials or muniments be not registered, or not duly registered, or be only in writing, or such like defect as may not extend to, or include the intrinsic fairness and honesty,” &c. (Hart. Dig. Art. 2391.) The Statute having thus defined the meaning of the terms -employed, we are not at liberty, in construing this Section, to resort to other sources for their definition and meaning. The definition of “ color of title,” in this Section, is certainly very different from that which has been given by Courts to these terms j that is, “ that which in appearance is title, but which in reality is no title.” (Wright v. Mattison, 18 Howard, R. 56.) That is not the color of title defined in this Section of the Statute ; and the Statute having defined the terms, we must look to the Statute for their meaning. To constitute title, there must be “ a regular chain of transfer from or under the sovereignty of the soil, and color of title is constituted by a consecutive claim of such transfer,” that is, “from the sovereignty of the soil,” “without being regular,” &c. The party must hold under or deraign his title from the Government. (Castro v. Wurtzbach, 13 Tex. R. 128.) And — 110 — that he may do this, there must have been a grant. It may not, perhaps, be necessary that it should have been a valid grant; the land may have been previously granted to another, in whom, therefore, there would be the superior title ; and still the second grant may be said to be a title, or transfer from the sovereignty of the soil. The first grantee might forfeit his grant, and the second hold the land. Such second grant might be held to constitutute color of title, under the Statute. And, such, perhaps, would be the case generally, where the grant or title was not absolutely, but only relatively void; or where it was apparently valid, but liable to be avoided and annulled by some matter extrinsic of the grant. But where it has been adjudged a nullity, and, in effect, recalled and cancelled by a competent tribunal, it is as though it had never issued; it is absolutely and to all intents and purposes a nullity. Of such a grant, after it has been thus adjudged void, it cannot be said that it constitutes title or color of title from the sovereignty of the soil. It has no longer a legal entity, and cannot form the basis of the limitation prescribed in the 15th Section of the Statute. Such is this case. The “ respective political authority,” to whom was entrusted the power, upon abandonment of the country, or the non-performance of other conditions, to declare the forfeiture of the lands ; or as it is expressed in the Law of 1825, to “ take possession of them and recall the titles,” (Art. 26,) did declare the forfeiture and nullity of the grant to McCormick, under which the defendant claims, and the land was regranted as being entirely vacant. The title was thus virtually recalled, and cancelled or annulled, and was henceforth to be regarded as though it had never had an existence. (Holliman v. Peebles, 1 Tex. R. 691, et seq.) And this was by the judgment of a tribunal whose proceedings were made a matter of record, and of public notoriety at the time, and have become a part of the history of the earlier land titles of this country, under — 111 — the Laws of Colonization. We, therefore, think it clear that this abrogated and annulled grant cannot be deemed a constituent of title or color of title, within ti e meaning of the 15th Section of the Act of Limitations. The judgment is reversed and the cause remanded for further proceedings. Reversed and remanded,