Miller v. Brownson

50 Tex. 583

Opinion

Moore, Chief Justice.

The patent issued to appellee by the State for the land for which he sues, is certainly primafacie evidence of title, and warranted the judgment in his favor for the land, unless appellant showed a valid grant of it to some one else previous to the date of the location and survey upon which appellee’s patent was issued, or that appellant had the prior and superior equitable title to the. land at the date of said patent. The burden of proof establishing one or the other of these propositions was unquestionably on appellant. The first question for inquiry, then, is: Did the testimony offered by appellant legitimately tend to establish cither of these propositions? Or, rather, was the testimony introduced by appellant, together with that offered by him and improperly excluded by the court, sufficient to establish either of them? If so, the judgment should be reversed; but if not, although the court may have erred in some of its rulings admitting or excluding evidence, the judgment of the court touching the title must be held to be correct.

Appellant did not attempt to prove, or even pretend, that there is, or was ever in existence any direct or primary evidence of a previous grant or patent for the land to that issued to appellee; or, if the land was subject to location and patent when soughtto be acquired by appellee, that he had any equitable claim to or interest in it which appellee acquired by his patent; but he insists that the evidence adduced by him, together with that excluded by the court, was sufficient to warrant the jury in presuming that the State had granted the land to one Michael Devine, or to himself or his vendor, Guildeman, previous to its location and survey for appellee.

To maintain this proposition, appellant proved that the board of land commissioners of Victoria county, on the 26th of July, 1838, issued to Michael Devine, a single man, who emigrated to the Republic in the yéar 1836, a certificate for one-third of a league of land; that the land in controversy had been surveyed by virtue of this certificate by the district surveyor of Victoria land district on November 5,1839, and delineated upon the.map of said district; and that the certificate was afterwards returned, with the field-notes of said survey, to the general land office of the State, where it was filed February 9,1841.

The evidence also shows that said certificate is lost from or out of the file in said office, as it is not in a list of missing files made up in said office in 1875. Appellant having also shown that said certificate had not been recommended by the commissioners appointed under the act of January 29, 1860, to detect fraudulent land certificates, to the commissioner of the general land office as genuine and legal, in their report and file in said office, “ offered John J. Linn as a witness, by whom he proposed to prove that he knew Michael Devine, the party to whom the certificate for one-tliird of a league of land had been granted; that Devine was in 1836 a citizen of Victoria county, and that he had known him from that time until some time in 1842, when he was drowned, which was very shortly after the board acted on said certificate; that he (witness) was present when the travelling hoard held their meeting in Victoria, and heard the evidence given before them when said board were deliberating whether to recommend the certificate or not; and that after hearing the evidence said board did decide to recommend said certificate as valid and genuine.”

The proposed evidence, however, was objected to by appellee and excluded by the court; and its ruling, in our opinion, is unquestionably correct,—not only because there was no proper predicate for its introduction, but also because if proved it could have had no bearing upon the matter to be determined. The determination of the board of commissioners in favor of the genuineness of the certificate, however, clearly and conclusively shown, is wholly immaterial in view, of the fact that their report shows that they failed to recommend it as genuine and valid; for a patent could not be-legally issued on said certificate, admitting it to have been, genuine, unless it was “ returned as genuine and legal by the commissioners.” (Hart. Dig., arts. 1946, 1950; Paschal’s Dig., arts. 4218, 4222, 4223, 4245.) But it may be observed,. in this connection, that the evidence of appellant in support of the genuineness of this certificate was insufficent to have warranted the board of commissioners in reporting it as valid. To have entitled Devine to a certificate for a third of a league of laud, it must have been shown that he was residing in Texas at the date of the declaration of independence, (Const., Gen. Prov., sec. 10; Hart. Dig., arts. 1847, 1848,) or came to the Republic as a volunteer prior to the 1st of August, 1836. But there was no proof showing that Devine was a volunteer, or proof fixing the date of his emigration to Texas. The proposed evidence shows that Devine was a citizen of Victoria in 1836; but whether he came to the country prior to the declaration of independence, or as a volunteer prior to August 1, 1836, is not shown.

A like defect in the proof before the board may have induced the board, after announcing the contrary conclusion proposed to be proved by Linn, to decline, on more mature consideration, reporting the certificate as genuine. It is sufficient, however, to say that the commissioner of the general land office had no authority to issue a patent upon it unless it had been reported as genuine, or, if not so reported, had been established as genuine and valid by suit. The evidence before the court, together with that proposed to be introduced, neither proves nor tends to prove either of these facts; and, beyond all question, a grant cannot be presumed when it would be in plain violation of law for it to have been made. (Yancey v. Norris, 27 Tex., 40; Sulphen v. Norris, 44 Tex., 204; Grimes v. Bastrop, 26 Tex., 310; Williams v. Davidson, 43 Tex., 1.)

But it is argued by appellant that although the presumption of a grant may not have been warranted prior to the organization of the Court of Claims, that court was authorized to inquire into the genuineness of the certificate issued to Devine, and if it found it to be genuine the commissioner should write across the face of it the word “ approved,” after which a patent might have been granted upon it. If, how ever, the Court of Claims had any authority to inquire into the validity of this certificate, there is no evidence before the court tending to show that it did so, or that it found it to be genuine. The proposition, however, is based upon a total misconception of the object and purpose of the act organizing the Court of Claims. The genuineness of certificates of the first and second class had been passed upon by the board organized under the act of January 29,1840, to detect fraudulent land certificates. Those reported as genuine by that board were not required to be presented to the commissioner even for registration, and those not thus reported and not established by suit brought for this purpose in the District Court prior to the 1st of July, 1847, and all locations and surveys thereon, were declared by the Constitution forever null and void. (Const. 1845, art. 11, sec. 2.) To have given to the Court of Claims authority to revalidate such certificates would have violated the spirit, if not the plain language, of the Constitution. Nothing of the sort was intended or attempted to be done by the Legislature by the act creating the Court of Claims. An examination of its different provisions clearly shows that claims for land—but only such as were prima-facie valid at the date of this act—were to be inquired into by the commissioner and “registered” or “approved” as therein directed, and not certificates which had been long previously declared by the Constitution absolutely null and void. (Paschal’s Dig., art. 1110, et seq.)

There is another difficulty in this branch of appellant’s case. He does not insist that the mere location, survey of land, and return of the certificate and field-notes to the general land office are sufficient to warrant the presumption of the grant, unless accompanied with a long-continued possession of it; but as he denies that he holds or claims title under the Devine certificate, and insists that the testimony offered by appellee to connect him with it was inadmissible, there is no evidence of possession of the land under this title to support the presumption that the survey made for Devine ever ma tured into a grant, or was not at the date of appellee’s location and patent—what it was declared to be by the Constitution if not reported by the travelling board as genuine or not established as valid by suit—absolutely null and void. For, certainly, it cannot be insisted that the mere possession of an intruder, or one having no title or claim to the land, will warrant a presumption of a grant to some one else. On the contrary, such possession no doubt strongly tends to negative and repel any such presumption.

And certainly if the facts do not warrant the presumption of a grant to Devine, if appellant does not claim under him he cannot ask the court to presume a grant to him or his vendor, neither of whom is shown to have had the land located or surveyed, or to have had any character of claim under which this could have been legally done. Certainly it is not necessary for this court to say that it can find no warrant, to presume a grant from the simple fact of the uninterrupted possession of the public domain by a mere squatter upon it. If grants are to be thus presumed, a patent, instead of being the best evidence of title to land, might be set aside as worthless by parol evidence of occupancy by a party without even color of title for such indefinite time as in the opinion of the jury should entitle him to the land.

If appellant did not claim the land under Devine, he shows no foundation for his plea of possession in good faith; for, unquestionably, something more is required to support this plea than a deed from a party having neither title nor possession of the land; and if appellant was not a possessor in good faith at the date of his entry under his deed, how and when did he subsequently become so ? By the record of the surveyor’s office he was charged with notice that no attempted appropriation of the land had been made except under the Devine certificate, under which he insists he does not hold. He must, then, have known that his improvements were being made upon land to which he had no valid claim. If, on the other hand, his title is connected with the Devine certifi cate, as he is presumed to know the law, he is charged with notice that he was claiming through a tax title,land surveyed by virtue of a certificate denounced in the Constitution as null and void. Certainly a possession in good faith cannot rest on such a foundation. If a purchaser will not look to the character of title by virtue of which he enters and improves land, but will close his eyds and recklessly act on the presumption that any one who will sign a deed has a valid title, he has no one to blame but himself. (Robson v. Osborn, 13 Tex., 298; Hatchett v. Conner, 30 Tex., 104.)

These considerations render it unnecessary for us to determine whether the copy of the deed from the assessor and collector of taxes to appellant’s vendor was admissible in evidence, or should on his objection to it have been excluded ; or whether the statute gives pay for improvements by parties holding possession under a claim to land which they believe to be valid, though the land may have been a part of the public domain until within less than one year before the filing of the suit for its recovery. Hor are we called upon in this case, as it is here presented, to inquire whether, although our statute may not give to the possessor in good faith of a part of the public domain, pay for lasting and permanent improvements, he may not be entitled to relief upon principles of equity.

To preclude appellee from a recovery for the use and occupation of the land, it was incumbent upon appellant to prove that appellee had failed to pay the State taxes which had accrued upon the land. (Paschal’s Dig., art. 3234.) There is nothing in the record from which we can infer that any such proof was adduced by him. Certainly the mere fact that appellant paid taxes upon the land does not tend to prove that taxes were not also paid by appellee; nor can we see from anything in the record that there were any taxes properly assessed against the laud which were payable when the case was tried in the District Court. Unless the land was located on or before the 1st day of January, 1877, of which there was no evidence, it was not subject to assessment for taxes for that year; and the taxes for the year 1878 were not payable prior to the trial of the case.

There being no error shown in the transcript of which appellant has any just cause to complain, the judgment is affirmed.

Aeeirmed.