ON MOTION EOR REHEARING.
E. J. Gurley
and
Walton & Hill,
for defendant in error, on motion for rehearing.—Our attention will be directed to one point. A suggestion may be made as to another, but such other is only collateral.
The court decides in substance:
1. That Luke Lesassier was in the nature of a special officer to issue the final titles to the two Aguirres and Tomas de la Vega on their joint concession from the Governor of Coahuila and Texas.
2. That if in that capacity he issued to Rafael de Aguirre a complete and perfect title to eleven leagues on the Brazos, of date 4th of October, 1833, then such act on his part was an execution of the power vested in him, and an exhaustion thereof.
3. That if such be the fact, then that the issuance by him on the 22nd October, 1833, of another title by virtue of the same power, was a void act, and conferred no right, unless it be shown that the first title was legally abandoned.
4. That unless legal abandonment of the title dated 4th, as above, be shown, then in 1874 the land embraced in the second or junior title was subject to be appropriated by individuals by virtue of genuine Texas land certificates, and also subject to be appropriated by preemptors under the laws of Texas.
While the foregoing is not the language of the court, yet it is what we understand to be the exact meaning of the decision.
Our general counter-propositions are these: 1. That Lesassier was not in the sense of the law a special commissioner, but was one of a class, all of whom had power to issue titles of the character of the one involved; not by being specially empowered, but merely by having the
concession referred to him; or if that be not exactly so, they had power to issue land titles.
2. That he was a public officer, vested with power by law to issue land titles; and that his act under question was only in excess of authority, if not within the law, and conferred colorable right, which may not be attacked by individuals, but by sovereignty alone.
3. That where a title is a perfect legal title on its face, individuals can not bring up matter aliunde the perfect face to mar or destroy it, unless they do so in the assertion of a contemporaneous equitable right superior to the legal title in its inception or consummation.
4. That forty years is too far removed from the res gestas in which to inaugurate action through testimony dehors the record to undo what it appears to be on its face, and which for these forty years has been recognized by government to be a perfect thing, and the depository of lawful right to land.
5. It is the public policy of Texas, as of every other civilized government, to quiet titles to lands—to make them fixed, safe, and to remove them from the domain of conflict and litigation.
6. The power of Lesassier was not exhausted until he had issued three titles by the authority of the concession dated 14th June, 1830.
Special propositions: 1. In law, under the doctrine of relation, the second title is the elder and superior, or else both the titles to Aguirre, mentioned as first and second, are of the same date.
2. The issuance of the two titles to Rafael de Aguirre is a patent mistake on their face.
3. The State resumed dominion over the territory embraced in the first title, granted it away in payment of its land certificate indebtedness, which was tantamount and equivalent to election—denunciatory of one title, and the validation, affirmance, and sufficient recognition of the other.
4. The Republic" of Texas received pay for the second grant after the revolution.
5. The question decided by the court was not, under the law ñor under the rules of the court, before the court for decision, never having been made in the trial court nor in the Court of Civil Appeals.
6. The question as to the legal validity of the second title was limitedly made below, but only limitedly, and as a circumstance to be considered by the jury on the issue of forgery.
Citing: Johnson v. Smith, 21 Texas, 729; Hancock v. McKinney, 7 Texas, 442; Galloway v. Finley, 12 Pet., 197; 7 Wheat., 214; United States v. Arredondo, 6 Pet., 731; Airhart v. Massieu, 98 U. S., 498; Truehart v. Babcock, 51 Texas, 169; Westrope v. Chambers, 51 Texas, 178; Summers v. Davis, 49 Texas. 541; Swift v. Herrara, 9 Texas, 280; Maxey v. O’Connor, 23 Texas, 239; Winsor v. O’Connor, 69 Texas, 571; Howard v. Colquhon, 28 Texas, 145.
We pass to a second view of the decision, wherein it is decided, that the extension of the first grant to Aguirre, on the Brazos, was an
exhaustion of the concession, and also of the power of Luke Lesassier under it. We are sanguine in the hope and confident in the belief that the court can be convinced of its error in the above utterance.
The court will remember that the concession does not name Lesassier; he is not thereby empowered as an individual. He is mentioned as one of a class, and that in the alternative. We take it to be the law, from tradition and custom, that alcaldes had, in connection with other duties, the power to issue land titles, and this belief is derived from the fact known to the court, that Alcalde Lesassier issued the greater portion of all the eleven-league grants in Texas; and no authorization was ever directed to him by name, as an individual, but uniformly in the character of alcalde. The authorization was directed to an officer of government. As said by Judge Wheeler, in Hancock v. McKinney, 7 Texas, 445, 446, the power vested in the Secretary of State—or any officer of government, in fact—was never known to the courts of Texas, and this was long, long ago, when we were comparatively near the time of the former government. See Treoute v. San Francisco, 100 United States, where it is said, page 252: “The alcalde of a pueblo exercised the power of distributing the lands of the town in small quantities to the inhabitants.”
If there were difficulties then in definitely, or even with any degree of legal satisfaction, ascertaining the powers of a recognized governmental arm, how much greater and insurmountable is the difficulty at this late day of judicially declaring what an alcalde could or could not do under the unknown powers vested in him. The Supreme Court of the United States, in Spencer v. Lapsley, 20 Howard, 271, when the title issued to Vega by Lesassier by virtue of the concession before the court was under discussion, says, that alcaldes had power to issue land titles. Such was the construction put on Texas decisions by that court. See also Merryman v. Bourne, 9 Wallace (U. S.), 601. In case "of doubt, the safer rule is to let the presumption of the law prevail, that officers of a former government acted within their powers. That is the rule that has for generations anchored titles so emanating to pillars of safety and stability, and protected innocent purchasers for value in their acquired rights. We are driven to the conclusion from the history of the country, judicial as well as political, social, and material, that alcaldes had power to issue land titles, but perhaps could not put themselves in motion, but could act with power when a matter was referred to them.
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ON MOTION EOR REHEARING.
E. J. Gurley
and
Walton & Hill,
for defendant in error, on motion for rehearing.—Our attention will be directed to one point. A suggestion may be made as to another, but such other is only collateral.
The court decides in substance:
1. That Luke Lesassier was in the nature of a special officer to issue the final titles to the two Aguirres and Tomas de la Vega on their joint concession from the Governor of Coahuila and Texas.
2. That if in that capacity he issued to Rafael de Aguirre a complete and perfect title to eleven leagues on the Brazos, of date 4th of October, 1833, then such act on his part was an execution of the power vested in him, and an exhaustion thereof.
3. That if such be the fact, then that the issuance by him on the 22nd October, 1833, of another title by virtue of the same power, was a void act, and conferred no right, unless it be shown that the first title was legally abandoned.
4. That unless legal abandonment of the title dated 4th, as above, be shown, then in 1874 the land embraced in the second or junior title was subject to be appropriated by individuals by virtue of genuine Texas land certificates, and also subject to be appropriated by preemptors under the laws of Texas.
While the foregoing is not the language of the court, yet it is what we understand to be the exact meaning of the decision.
Our general counter-propositions are these: 1. That Lesassier was not in the sense of the law a special commissioner, but was one of a class, all of whom had power to issue titles of the character of the one involved; not by being specially empowered, but merely by having the
concession referred to him; or if that be not exactly so, they had power to issue land titles.
2. That he was a public officer, vested with power by law to issue land titles; and that his act under question was only in excess of authority, if not within the law, and conferred colorable right, which may not be attacked by individuals, but by sovereignty alone.
3. That where a title is a perfect legal title on its face, individuals can not bring up matter aliunde the perfect face to mar or destroy it, unless they do so in the assertion of a contemporaneous equitable right superior to the legal title in its inception or consummation.
4. That forty years is too far removed from the res gestas in which to inaugurate action through testimony dehors the record to undo what it appears to be on its face, and which for these forty years has been recognized by government to be a perfect thing, and the depository of lawful right to land.
5. It is the public policy of Texas, as of every other civilized government, to quiet titles to lands—to make them fixed, safe, and to remove them from the domain of conflict and litigation.
6. The power of Lesassier was not exhausted until he had issued three titles by the authority of the concession dated 14th June, 1830.
Special propositions: 1. In law, under the doctrine of relation, the second title is the elder and superior, or else both the titles to Aguirre, mentioned as first and second, are of the same date.
2. The issuance of the two titles to Rafael de Aguirre is a patent mistake on their face.
3. The State resumed dominion over the territory embraced in the first title, granted it away in payment of its land certificate indebtedness, which was tantamount and equivalent to election—denunciatory of one title, and the validation, affirmance, and sufficient recognition of the other.
4. The Republic" of Texas received pay for the second grant after the revolution.
5. The question decided by the court was not, under the law ñor under the rules of the court, before the court for decision, never having been made in the trial court nor in the Court of Civil Appeals.
6. The question as to the legal validity of the second title was limitedly made below, but only limitedly, and as a circumstance to be considered by the jury on the issue of forgery.
Citing: Johnson v. Smith, 21 Texas, 729; Hancock v. McKinney, 7 Texas, 442; Galloway v. Finley, 12 Pet., 197; 7 Wheat., 214; United States v. Arredondo, 6 Pet., 731; Airhart v. Massieu, 98 U. S., 498; Truehart v. Babcock, 51 Texas, 169; Westrope v. Chambers, 51 Texas, 178; Summers v. Davis, 49 Texas. 541; Swift v. Herrara, 9 Texas, 280; Maxey v. O’Connor, 23 Texas, 239; Winsor v. O’Connor, 69 Texas, 571; Howard v. Colquhon, 28 Texas, 145.
We pass to a second view of the decision, wherein it is decided, that the extension of the first grant to Aguirre, on the Brazos, was an
exhaustion of the concession, and also of the power of Luke Lesassier under it. We are sanguine in the hope and confident in the belief that the court can be convinced of its error in the above utterance.
The court will remember that the concession does not name Lesassier; he is not thereby empowered as an individual. He is mentioned as one of a class, and that in the alternative. We take it to be the law, from tradition and custom, that alcaldes had, in connection with other duties, the power to issue land titles, and this belief is derived from the fact known to the court, that Alcalde Lesassier issued the greater portion of all the eleven-league grants in Texas; and no authorization was ever directed to him by name, as an individual, but uniformly in the character of alcalde. The authorization was directed to an officer of government. As said by Judge Wheeler, in Hancock v. McKinney, 7 Texas, 445, 446, the power vested in the Secretary of State—or any officer of government, in fact—was never known to the courts of Texas, and this was long, long ago, when we were comparatively near the time of the former government. See Treoute v. San Francisco, 100 United States, where it is said, page 252: “The alcalde of a pueblo exercised the power of distributing the lands of the town in small quantities to the inhabitants.”
If there were difficulties then in definitely, or even with any degree of legal satisfaction, ascertaining the powers of a recognized governmental arm, how much greater and insurmountable is the difficulty at this late day of judicially declaring what an alcalde could or could not do under the unknown powers vested in him. The Supreme Court of the United States, in Spencer v. Lapsley, 20 Howard, 271, when the title issued to Vega by Lesassier by virtue of the concession before the court was under discussion, says, that alcaldes had power to issue land titles. Such was the construction put on Texas decisions by that court. See also Merryman v. Bourne, 9 Wallace (U. S.), 601. In case "of doubt, the safer rule is to let the presumption of the law prevail, that officers of a former government acted within their powers. That is the rule that has for generations anchored titles so emanating to pillars of safety and stability, and protected innocent purchasers for value in their acquired rights. We are driven to the conclusion from the history of the country, judicial as well as political, social, and material, that alcaldes had power to issue land titles, but perhaps could not put themselves in motion, but could act with power when a matter was referred to them. A latent power, just as power lies dormant in a court until it is put in motion by some proceeding, or trans-' action, or controversy brought before it. Ayuntamientos, chief of which was the alcalde, had power to issue land titles, and to recall them on the grantee abandoning the country, failure to cultivate, or pay purchase money. So this court has decided (Holliman v. Peebles, 1 Texas, 699); but there is no statute, decree, or written regulation which directly or by implication vests such power in them, that we
have been able to find except in section 11 of the decree of 4th January, 1813, found in Dublan & Lazano, 397-399, and is as follows:
“XI. The designation of these allotments shall be by the constitutional ayuntamiento of the towns to which the lands correspond, as soon as the interested parties shall present to them the documents that accredit their good service and retirement, hearing the syndic solicitors upon all, briefly and administratively, without any cost or dues being exacted. In continuation the expedients (expedientes) shall be remitted to the provincial deputation, in order that it may approve the same, and repair any injury.”
See also article 26 of Colonization Law of 1824, Laws Coahuila and Texas, pages 19, 20.
The case of Summers v. Davis had origin from the recalling of a title by the ayuntamiento. 49 Texas. There the title was recalled in 1826. The land was located over in 1852, and patented. These two titles came in legal conflict. The old title had article 908, Paschal’s Digest, behind it, as did the Muldoon grant in Truehart v. Babcock, 51 Texas, 169. In both cases the court sustained the old title, not because the one had not been recalled, nor the other absolutely void, but because they had been titled or surveyed. The Muldoon title was absolutely void, as void as if it never had been, and yet locations over it were not allowed. It may be, that we will be answered by pointing to article 908, supra; true, that is a specific answer to these two cases, but is not an answer to the proposition contained in- them, that the acts of officers of former governments will be respected until want of authority is satisfactorily shown. Hor is it an answer to the great line of cases which say, that individuals shall not attack titles procured in fraud; that only the government could -do that. What do the courts mean when they use such language? It is not, we imagine, to protect perfect titles; they protect themselves. There must be a class of titles that are not perfect, not titles that are irregular, but titles that are in some material particular defective, which, according to technical law, would avoid the title. Bub we dare say, that there is no case where the face of the title was perfect that it has ever been successfully assailed.
We invite the attention of the court to the following sections of the colonization law of 1825, under which the title being debated was authorized and issued: Sec. 24, Colonization Law of 1825, Pasch. Dig., 586, authorizing sale of eleven leagues, and note thereunder.
Border and littoral leagues excluded from sale save by consent of federal executive: Id., art. 569, sec. 7.
Issuance of land titles under said law: Sec. 4, Instructions to Commissioners, Pasch. Dig., 614; Holliman v. Peebles, 1 Texas, 699.
Ho lands could be granted without the consent of empresarios, even though grants thereof should be authorized by the executive. Pasch., Dig., art. 639 (this article of the law was withdrawn May 16, 1835); Id., art. 640.
In Edwards v. James, 7 Texas, 372, Chief Justice Hemphill refers to the clouds that obscured the legal heavens in regard to the power of Mexican officials over the subject of land titles.
He also affirms the power of the ayuntamiento to certify a basis for concessions, and then proceeds: “The only remaining objection [to
the title] is, that the title was extended by the first regidor; whereas the commission was directed to an alcalde, and that the grant is therefore void for the want of authority in the granting officer. It is sufficient to say, in answer to this objection, that the commission is directed to an alcalde, and it may therefore be executed by one who is charged by law with the powers and duties of that office. In case of decease, legal impediment, or vacancy of the office of alcalde, his place was filled by the regidor.”
This decision manifests the legal truth, that these commissions to issue land grants were directed to officers of government and could be executed by their successors, were impersonal, not individualized, but were directed to a depository of power, to be drawn on, and when drawn on and put in motion, the powers were executed officially at the discretion of the officer. Art. 11, dec. 262, Laws Coahuila and Texas, p. 238; Id., art. 6, dec. 124, p. 144.
But 3. The claim of plaintiff in error is subsequent to the State Constitution. Haurick’s title can not be questioned in this suit. It is good against plaintiff in error. Const., art. 14., sec. 2.
BROWN, Associate Justice.
—Upon the motion for rehearing in this case, the defendant in error presents the question for our consideration, that if the grant made to Rafael de Aguirre in Williamson County be void, it is nevertheless such title as is protected from the claim of plaintiff in error under the Constitution. We have therefore concluded to submit to counsel for both parties the following questions, to be argued orally or in writing, as they may choose:
1. Assuming that the grant under which defendant in error claims, was issued after a prior valid grant had been made to the same party under the same authority, and that it is therefore void, is it titled land, or is it equitably owned under the provisions of article 34, section 2, of the Constitution ?
2. If it comes within the terms of the Constitution as to the location of certificates, will the prohibition therein apply to the claim of plaintiff as a pre-emptionist or claimant of a homestead under the Act of May 26,1873, entitled “An act for the benefit of occupants of the public lands?”
Arguments allowed herein will be confined to the foregoing questions, and will be heard on such day as counsel may agree upon, or that may be hereafter fixed by the court in case no agreement is had.