Osterman v. Baldwin

Mr. Justice DAVIS delivered the opinion of the court. It is true, as the defendants insist, that when the pur. chases were made by Baldwin, Texas was a foreign country, with a constitution forbidding aliens to hold real estate. But the defendants cannot object on that ground. Until office found, Baldwin was competent to hold land against third persons. No one has any right to complain in a col *122 lateral proceeding, if the sovereign does not enforce his prerogative. This court, in Cross v. De Valle, * say: “ That an alien may take by deed, or devise, and hold against any one but the sovereign, until office found, is a familiar principle of law, which it requires no citation of authorities to establish.” Even if the defendants could have made this objection, while the Republic of Texas existed, they cannot make it now, because, when Texas was admitted into the Union, the alienage of Baldwin was deterfnioed. His present status is that of a person naturalized, and that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture, and a confirmation of his former title. † It is insisted the legal title to the lots in controversy, is in Holman, by deed from the Galveston City Company, and if so, that the execution against Holman was properly levied on them, and they were rightfully sold. There is evidence tending to show a deed to Holman, but it falls short of proving it. It is almost certain a deed was never made, and quite certain, if made, it was never delivered. Holmau, who ought to know, has no recollection about it, and he is fortified by Edmunds (the active agent in hunting up property to levy on), who swears, the books of the company were examined, and did not show the making of the deed — a matter deemed of importance by him and his attorney. The deed is not produced; is not recorded; the directors who must have executed it, are not called; and its existence is but a matter of conjecture. Even if made and delivered, it cannot help the title of the defendants, for the sheriff sold with express notice of Baldwin’s rights, and his intention to enforce them, and no one who bought can be considered an innocent purchaser for value. If Holman had the bare, naked, legal title, without any beneficial interest in the property sold, and no possession, nothing passed by the sale. A purchaser, at a sheriff’s sale, buys precisely the interest which the debtor has in the property sold, and takes subject to all outstanding equities. *123 But no deed was, in fact, made, and the legal title is still in the Galveston City Company. If, in equity Baldwin is entitled to have that title conveyed to him, the defence in this case must fail, unless the plea of the statute of limita-, tions can be successfully maintained. It is proven, beyond dispute, that Baldwin purchased the lots and paid the money for them, and that Holman had no interest in them. It is in equal proof, that Holman agreed to hold them in trust for Baldwin — the object being to place them in the hands of a citizen of Texas, who could pay taxes and protect them. The trust, thus created, is an express trust — hot one resulting by implication of law — proved, it is true, by parol, but equally efficacious for the purposes of this suit, as if in writing. The declaration of an express trust, under the statute of frauds of 29 Charles II, was required to be in writing, and could not be proved by oral testimony. But the courts in Texas hold, that trusts are not embraced in their statute of frauds,'and that a trust may be proven as at common law, by parol evidence. * The equitable title is, therefore, in Baldwin, and there is no reason why he should not have the legal title also, unless his rights are cut off by the statute of limitations. The defendants claim that they have possessed the land peaceably for more than three years, under title, or color of title, derived from the sovereign authority, thus claiming the benefit of the fifteenth section of the act of limitations of Texas. † But this claim is unavailing, because one link in “ the chain of transfer,” from the government down to the defendants, is broken. There is no conveyance from the Galveston City Company to Holman. A “ consecutive chain of transfer” is required by the statute, and the writing possessed by Holmau is not, in any legal sense, a link in that chain. It does not purport to convey title. It is nothing more than a declaration by the company of the purchase of the lots, the payment of the money, and the intention to *124 make deeds, when prepared to do so. If this writing, upon its face, professed to pass title, but failed to do it, either because the city company had no title, or for want of proper execution, it could be used as color of title. But an agreement to convey title at some future period, is not color of title, within the meaning of the law. [See supra, preceding ease, League v. Atchison, in regard to this same statute of limitations in Texas. — Rep.] The Supreme Court of Texas has decided the precise question here presented. That learned court, in discussing this subject, in Thompson v. Cragg, * say : “ Nor can there be color of title, as defined by the statute, where there is a complete hiatus in the chain. Color of title differs from title only in externals. The substance of both is the same. Were this not so, if color of title were something intrinsically and substantially less, or weaker than title, then the wisdom of the legislature could not be vindicated in applying the same period of limitation to a possession supported by the one as is applied to a possession supported by the other.” Decree affirmed. Footnotes [*] 1 Wallace, 8. [†] Jackson v. Beach, 1 Johnson’s Cases, 401. [*] Miller v. Thatcher, 9 Texas, 484. [†] Hartley’s Digest, Art. 2391. [*] 24 Texas, 596.