Burkett v. Scarborough

Opinion by West, J. In this case, the action of the board of land commissioners of the county of Nacogdoches, had on the 39th, day of March 1838 in deciding that Mariano Moro Sr., and his wife were the heirs of Mariano Moro Jr., and in issuing to them the head right third of a league certificate as such heirs must be held conclusive of their fight to the certificate in question, whether such determination,was correct or not. The previous decisions ot tins court, nave ueen to tne effect, that after the very great lapse of time, that has transpired since these early transactions took place, that the action of these special tribunals are no longer open to enquiry in ordinary suits between individuals in which such questions may arise collaterally. In Styles vs. Gray, 10 Texas 506, it was said: “When it is considered that the evidence for her having the requisite qualifications to receive a head right, had been subjected to the judgment and approval of the board of land commissioners of the county, and had by them been approved, and again examined and approved by the travelling board and finally approved by the commissioners of the general land office, who if he had any doubts, was required by the statute to take the opinion of the Attorney General, surely it is time that the subject should be put at rest-” These views have again and again been endorsed and enforced and illustrated, by repeated decisions of this court. In Johnson vs. Smith, 31 Texas 738, it is said : “The commissioner, who issued the grant was the exclusive judge of the merits and qualifications of the applicant. It was for him to determine whether he possessed the qualifications requisite to entitle him to the bounty of the government, and it is well settled, that his decision upon that subject is final and will not be revised by this court. The issue of [333] the grant precludes enquiry upon that subject, (15 Tex., R., 50, 11 Id., 656, 708, 717). Thus in Styles vs. Gray (10 Tex., R., 503) where it was proposed to impeach the grant, because the grantee “was never a married woman, a widow or the head of a family" this court held that the evidence was rightly refused. Babb vs. Carroll, 21 Tex., 767. Bowmer vs Hicks,22 Tex., 155. Bradshaw vs. Smith, 53 Tex. 474. Todd vs. Fisher, 26 Tex., 243. Lindsey vs. Jeffrey, 55 Tex., 631. Howard vs. Colquhoun, 28 Tex., 134. Palmer vs. Curtner, 55 Tex., 67. Walters vs. Jewett, 28 Tex., 291. Harrick vs. Jackson, 55, Tex., 32. McPhail vs. Burris, 42 Tex., 142. The patent which issued was based on this certificate, and the heirs of Mariano Moro Jr., referred to in it, must be taken to be the persons who are decided to be such heirs by issuing of the certificate, upon which the patent is founded and without which it could have had no existence. The patent when issued enured to the benefit of Chas. Chevalier to whom the certificate, and the land located and surveyed by virtue of it had been long before conveyed by Mariano Moro Jr.and his wife; upon its issuance the legal title passed to Chevalier and his heirs. Meriwether vs. Kennard, 41 Tex., 282, Pas. Dig. Art. 4288 (a) and note 978 (a), and authorities there referred to. The appellees show a chain of title from the heirs of Chevalier to themselves. The certified copy of the transfer from Mariano Moro Jr. and his wife to Chevalier, acting upon which, the patent was delivered to Chevalier, or his agent, was an archive of the general land office, and a certified copy from that office was admissible in evidence. Rev. Stat. Arts. 57, 3808. It thus appearing, that the plaintiffsin error, Burkett and Murphy, have the superior title to the land, it would be proper to reverse the judgment, and here render a judgment for the plaintiff in error. As however it is possible that upon full proof the defendant in error, Scarborough, may be able either by proof of possession or in some other manner to show a stronger title to the land than he has yet presented, the case will be reversed, in order that an opportunity may be given him to do so. In the view we have taken of the case, it becomes unnecessary to pass upon the right of the defendant in error to damages from the plaintiffs in error for the removal by them of the 432 cords of wood, that were cut down and corded on the land before he purchased it [334] from H. L. Moffitt. It may be proper to say, that if his deed from Moffitt,which is not set out in the record, is only an ordinary warranty deed for the land, it would seem that the timber that has already been severed from the soil, and manufactured into cord wood, before its purchase by defendant in error, would not pass to him by such a deed, as a part of the reality. On this point however, it is not necessary now to decide. The deed from Carmelita Chevanaand her husband, Jose Chevana, is defective in not showing that the instrument was sufficiently explained to the wife by the officer taking the acknowledgement, nor was she asked whether she deáred to retract the deed. There are also other defects in the acknowledgement. The deed was properly excluded. The judgment is reversed and the cause remanded.