Cox v. Bray

Moore, C. J. —On the trial of this canse in the District Court, the appellant, Cox, who was the defendant in that court, offered parol testimony tending to prove a sale by John L. Bray, the ancestor of the plaintiffs, of his head-right certificate for one-third of a league of land to Den-man & Fessenden, under whom the appellant claims the land in controversy. The proposed testimony was excluded from the jury by the court, upon the following objections made to it by the plaintiffs, to wit: 1. It tended to vary and contradict a written instrument shown by the defendant to have been executed between the parties at the time of the alleged sale which he was seeking to establish.- 2. Such evidence was improper to establish title after so great length of time. If these objections were improperly sustained, and we are of opinion they were, the judgment must be reversed. The written instrument to which the first of these objections has reference is a power of attorney executed on the 5th of June, 1841, by John L. Bray to Denman & Fessenden, authorizing them, as his attorneys, and for him and in his name, to locate and receive from the government the necessary patent and title to his claim of land, and to sell, and for him and in his name to make, execute, and deliver good and sufficient deeds and conveyances for the same. Does the contract which the defendant, Cox, seeks to establish by the parol testimony offered by him necessarily tend in any manner to vary or contradict this power of attorney? We think not. The power of attorney does not negative the parol sale of the certificate. They are collateral and independent facts, entirely consistent with each other, but together presenting the result of the entire transaction or agreement between the parties. Upon the defendant’s theory of the case, the evidence proving the sale of the certificate does not contradict the power of attorney, but explains the object and purpose of its execu [260] tion. It shows it was merely ancillary to the sale of the certificate. It was probably erroneously supposed by the parties the most certain and effectual mode of securing to the purchasers the benefit of the contract. It is quite likely that they regarded the power to locate the certificate and to receive from the government the patent for the land, and to dispose of it at their discretion, as tantamount, if not superior, to a written conveyance of the certificate. It is a well-known fact, that this course was frequently pursued in transactions of this kind at that day. The second objection to this testimony might be urged with much propriety, if the party by whom it is presented was the actor in the case. In other vfords, if it were relied on as a sword for attack, instead of a shield for defense. The length of time which has elapsed since the occurrence of the transaction referred to in this testimony should and' no doubt will subject it to a strict analysis and the closest scrutiny. Its weight and influence may thereby be much diminished with the jury, but it should not on that account be excluded. That a party has chosen to risk the security of his' title upon evidence of a transitory and perishable nature, for a longer or shorter period of time, does not deprive him of the right, when attacked, of availing himself of it, if still within his power. If so, time, instead of curing the imperfections and defects of just and honest titles, would be the most potent engine for their destruction. It would be to reverse the law of limitation, and give the plaintiff instead of the defendant the benefit of his delay in the prosecution of his alleged cause of action. Without, however, elaborating the question at greater length, we conclude by saying, that the court erred in excluding the testimony offered by the defendant, so far as the same was intended and went to defeat the right of the plaintiffs to recover. But, unless for reasons not presented in the present record to account for delay, it cannot [261] be made the basis for relief on his part in the nature of a demand for specific performance, or to support a prayer to divest the plaintiffs of the legal title to the land for his benefit. The plaintiffs also excepted to this testimony, upon the ground that the alleged contract was in contravention of the statute of frauds, and therefore void, but the objection was overruled by the court. This ruling being favorable to the appellant, whether right or wrong, cannot affect the result of the case on the present appeal; but as the decision of the question may be necessary to a final determination of the cause, we deem it proper to say that the court, in .our opinion, did not err in its refusal to sustain this objection. The contract was not for the sale of land. It was for the sale or assignment of the unlocated certificate. The certificate of itself did not give to or vest in the grantee a title to land, but a right to acquire it. It was merely the obligation of the government, entitling the owner of it to secure the designated quantity of land by following the requirements of the law. We see no difference in principle between the parol sale of the entire certificate, and a contract for a part of it to a locator in consideration of his selecting the land and procuring the patent. (Watkins v. Gilkerson, 10 Tex., 340; Evans v. Hardeman, 15 Tex., 481; Miller v. Roberts, 18 Tex., 19.) Or from a parol assignment of a bond for title, which was held valid by this court in the case of Bullion v. Campbell, Tyler term, 1864. (27 Tex., 653.) But even if the contract were within the statute, the payment of the purchase-money, the location of the land, the procuring the patent, and the possession and improvements made upon it by the defendant and those under whom he claims, would, as has frequently been decided by this court, have presented sufficient equity to have entitled the defendant to a decree of title, if he had brought a suit [262] for this purpose within a reasonable and proper time. (Dugan v. Colville, 8 Tex., 127; Reynolds v. Johnson, 13 Tex., 216; Williams v. Smith, 15 Tex., 35; Taylor v. Ashley, 15 Tex., 50.) And it certainly could not be less effectual to protect him against the wrongful efforts of the vendor to deprive him of his possession and equitable title to the land, however long he may have delayed his suit for this purpose. With a view to the future disposition of the case, it is also proper for us to say, that the title presented by defendant did not sustain his plea of limitation of three years’ adverse possession. The defendant’s evidence of title to the certificate was excluded, and therefore he did not have a consecutive chain of transfer from the sovereignty of the soil down to himself, either regular or irregular; nor, if his evidence had been received, would his defense under the statute have been strengthened; for one link in his chain would have been established merely by parol evidence, while manifestly nothing less than a written memorial, although it may be irregular, will satisfy the statute. This evidence, as we have seen, should have been admitted to support the defendant’s claim to the superior equitable title, but not to maintain his defense under the 15th section of the statute of limitation. To establish this defense, the defendant must rely upon his written memorials of title, and by these, as we have said, he fails to connect himself with the patent from the government. The deed to McKinney does not purport to have been made by virtue of the authority conferred by the power of attorney to Denman & Fessenden. Its efficacy to pass title tp McKinney depends upon the alleged parol sale of the certificate, and not upon the power of attorney. r But if this were otherwise, and this deed and the subsequent confirmation of it by Denman, although a defective and irregular execution of the power conferred upon them, [263] should he held sufficient to constitute color of title when viewed alone in connection with the paper muniments of title, this assumption would at once be rebutted and destroyed when it is shown, as was the case, that the authority to execute the deed or to convey any title whatever had lapsed or determined by the death of the principal previous to the attempt to exercise it. In such case, the deed is not merely irregular, it is absolutely void. It can no more serve as a connecting link in a chain of title, than a deed made on the assumption of a power which never in fact existed. In such cases, if a party seek to defend himself by limitation, he must rely upon one of the other sections of the statute; he clearly cannot do so under this one. For the error of the court in sustaining the exceptions of the plaintiffs to testimony offered by the defendant, the judgment is reversed, and the cause remanded for further proceedings. Beversed aed remaeded.