Wheeler, J.
The errors assigned, which it is material to notice, relate to the ruling of the Court in excluding evidence offered by t^e plaintiff. This was, 1st. The petition of Cochrane, addressed to the Commissioner, Peebles, on the 10th of February, 1836, denouncing the land in question as vacant, b.y reason of the abandonment of the country by the former owner, Stafford, under whom the defendants claim ; and the action of the Commissioner, adjudging the land vacant, and, afterwards, on the 21st .of the same month, regranting it to the petitioner, .Cochrane.
2pd. The depositions .of witnesses, offered to prove the fact of the abandonment of the country by Stafford.
It is admitted by counsel for the appellant, that the title issued ,by Peebles, the Commissioner, to Cochrane, is void, under the provision of Section 10, of the general provisions of the Constitution of the Republic, because made after the closing [669] of the land offices by -the Act of the Consultation, in 1835. But it is insisted that, though void for some purposes, it may be valid for others: and that it is so as an adjudication that the land was .vacant.
The language of the constitutional provision operating upon •this title, is, “ That all the surveys and locations of land made “ since the Act of thelate Consultation, closing the land offices, -“ and all titles to land made since that time, are, and shall be “ null and void.” (Hart. Dig. p. 39.)
Here is an express -recognition of the validity of the Act of .the Consultation “ closing the land offices:” and the Act thus .referred to and recogpized, provides that “ all land Commis-“.sioners, Empresarios, .Surveyors, and persons in anywise concerned -in the location of land, 'be ordered forthwith to -“ cease their operations,” &c. The Act, taken in connexion .with the Constitution, leaves no room to question, that the powers of the Commissioner, respecting the grant of lands, .were suspended. And it cannot .require argument to prove, .that, as the Commissioner could not act officially touching the .granting of lands, his acts, in his private capacity, can occupy no higher or other ground than the mere declarations of third persons, which are denominated by the law hearsay, and, of course are not admissible in evidence.
The denunciation of land, by a party asking a grant of it to hinaself, under the former laws, did not differ essentially from .the location of land as practiced under our present land laws. It was, in effect, but a location of the particular land designated. It was the incipient step in obtaining the grant. Both the denunciation and inquiry respecting the alleged abandonment, looked to the regrant of the land as their ultimate object, and were preliminary thereto. And, I apprehend, the denunciation by the Constitution of the nullity of all “ locations of land,” and titles thereto, made or issued after the closing of the land offices, by the Act of the Consultation, is sufficiently comprehensive to include all the proceedings preliminary to the making of the title.
[670] But if it be conceded that this was competent evidence of the denunciation of the land in 1836, and an adjudication by competent authority, that it was then vacant; yet it was not, we think, admissible under the state of the pleadings. The plaintiff had not laid the foundation for its admission by averment, though apprised by the answer that the defendants would rely on the title which it was proposed by this evidence to impeach: and for that reason it was inadmissible. This point was fully determined by this Court in the case of Paul v. Perez. (7 Tex. R. 338.) In that case the Court said: “ The answer of the defendant denies the right of the plain- “ tiff; and then sets up his own superior title.” “ If the “ plaintiff relied on the supposed forfeiture, and believed that “ he had a right to avail himself of it, in this action, he should “ have set up tkefact, or facts, constituting the forfeiture, in “ his answer to this cross bill or petition of the defendant; or “ he could, on motion to the Court, have amended his petition “ by inserting the allegation of the forfeiture. The principle, “ that the allegation must be broad enough to admit all the “ necessary proof, and that every material fact must be alleged, “ has been often decided by this Court; first solemnly adjudged in Mims v. Mitchell (1 Tex. R. 443) and sustained “ by an unbroken train of decisions, from that time, down to “ the present.” (See Coles v. Kelsy, 2 Tex. R. 541; Caldwell v. Haley, 3 Id. 317.)
The only exception to this rule, is that.made by the statute, in favor of a defendant who relies on the plea of “ not guilty,” to an action of trespass to try title. By the statute (Dig. Art. 3235) it is provided that the defendant in this action, shall not “ hereafter ” “ be required to put in any other plea than the one of ‘ not guilty.’ ” Where, therefore, the defendant does not plead specially, but relies on his right under the statute, he must, of necessity, be permitted to give in evidence special matter in his defence under this plea. For it evidently was the intention of the statute to give that right. But if he does not choose to rely on his statutory privilege, but also pleads [671] specially, it may well be a question whether he should not be confined in his evidence to the matters pleaded. There would seem to be much reason for considering this the correct rule of practice. For by pleading specially, the defendant gives notice of his defences, and the plaintiff has a right to suppose he will rely on none other; and ought not to be required to come prepared with evidence to meet other defences, than those which the defendant, by his pleadings, has asserted as 'the matters of defence on which he will rely.
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Wheeler, J.
The errors assigned, which it is material to notice, relate to the ruling of the Court in excluding evidence offered by t^e plaintiff. This was, 1st. The petition of Cochrane, addressed to the Commissioner, Peebles, on the 10th of February, 1836, denouncing the land in question as vacant, b.y reason of the abandonment of the country by the former owner, Stafford, under whom the defendants claim ; and the action of the Commissioner, adjudging the land vacant, and, afterwards, on the 21st .of the same month, regranting it to the petitioner, .Cochrane.
2pd. The depositions .of witnesses, offered to prove the fact of the abandonment of the country by Stafford.
It is admitted by counsel for the appellant, that the title issued ,by Peebles, the Commissioner, to Cochrane, is void, under the provision of Section 10, of the general provisions of the Constitution of the Republic, because made after the closing [669] of the land offices by -the Act of the Consultation, in 1835. But it is insisted that, though void for some purposes, it may be valid for others: and that it is so as an adjudication that the land was .vacant.
The language of the constitutional provision operating upon •this title, is, “ That all the surveys and locations of land made “ since the Act of thelate Consultation, closing the land offices, -“ and all titles to land made since that time, are, and shall be “ null and void.” (Hart. Dig. p. 39.)
Here is an express -recognition of the validity of the Act of .the Consultation “ closing the land offices:” and the Act thus .referred to and recogpized, provides that “ all land Commis-“.sioners, Empresarios, .Surveyors, and persons in anywise concerned -in the location of land, 'be ordered forthwith to -“ cease their operations,” &c. The Act, taken in connexion .with the Constitution, leaves no room to question, that the powers of the Commissioner, respecting the grant of lands, .were suspended. And it cannot .require argument to prove, .that, as the Commissioner could not act officially touching the .granting of lands, his acts, in his private capacity, can occupy no higher or other ground than the mere declarations of third persons, which are denominated by the law hearsay, and, of course are not admissible in evidence.
The denunciation of land, by a party asking a grant of it to hinaself, under the former laws, did not differ essentially from .the location of land as practiced under our present land laws. It was, in effect, but a location of the particular land designated. It was the incipient step in obtaining the grant. Both the denunciation and inquiry respecting the alleged abandonment, looked to the regrant of the land as their ultimate object, and were preliminary thereto. And, I apprehend, the denunciation by the Constitution of the nullity of all “ locations of land,” and titles thereto, made or issued after the closing of the land offices, by the Act of the Consultation, is sufficiently comprehensive to include all the proceedings preliminary to the making of the title.
[670] But if it be conceded that this was competent evidence of the denunciation of the land in 1836, and an adjudication by competent authority, that it was then vacant; yet it was not, we think, admissible under the state of the pleadings. The plaintiff had not laid the foundation for its admission by averment, though apprised by the answer that the defendants would rely on the title which it was proposed by this evidence to impeach: and for that reason it was inadmissible. This point was fully determined by this Court in the case of Paul v. Perez. (7 Tex. R. 338.) In that case the Court said: “ The answer of the defendant denies the right of the plain- “ tiff; and then sets up his own superior title.” “ If the “ plaintiff relied on the supposed forfeiture, and believed that “ he had a right to avail himself of it, in this action, he should “ have set up tkefact, or facts, constituting the forfeiture, in “ his answer to this cross bill or petition of the defendant; or “ he could, on motion to the Court, have amended his petition “ by inserting the allegation of the forfeiture. The principle, “ that the allegation must be broad enough to admit all the “ necessary proof, and that every material fact must be alleged, “ has been often decided by this Court; first solemnly adjudged in Mims v. Mitchell (1 Tex. R. 443) and sustained “ by an unbroken train of decisions, from that time, down to “ the present.” (See Coles v. Kelsy, 2 Tex. R. 541; Caldwell v. Haley, 3 Id. 317.)
The only exception to this rule, is that.made by the statute, in favor of a defendant who relies on the plea of “ not guilty,” to an action of trespass to try title. By the statute (Dig. Art. 3235) it is provided that the defendant in this action, shall not “ hereafter ” “ be required to put in any other plea than the one of ‘ not guilty.’ ” Where, therefore, the defendant does not plead specially, but relies on his right under the statute, he must, of necessity, be permitted to give in evidence special matter in his defence under this plea. For it evidently was the intention of the statute to give that right. But if he does not choose to rely on his statutory privilege, but also pleads [671] specially, it may well be a question whether he should not be confined in his evidence to the matters pleaded. There would seem to be much reason for considering this the correct rule of practice. For by pleading specially, the defendant gives notice of his defences, and the plaintiff has a right to suppose he will rely on none other; and ought not to be required to come prepared with evidence to meet other defences, than those which the defendant, by his pleadings, has asserted as 'the matters of defence on which he will rely.
The effect given by the statute to the plea of “ not guilty,” is an anomaly in our system. And it would seem a necessary consequence of the right to give in evidence special matters under that plea, that if the defendant relies on it, and does not plead specially, so as to apprise the plaintiff of his grounds of defence and the title on which he intends to rely, the latter must be permitted to meet and repel his evidence of title, when introduced, by any evidence which he may have it in his power to produce. For the plaintiff cannot be required to plead matters in avoidance of a title, which the defendant has not, by his pleading, given notice of his intention to rely on in his defence. If, therefore, the defendant had not pleaded his title, but had introduced it at the trial under his plea of not guilty, without having given the plaintiff notice of the particular title on which he intended to rely, any competent evidence would have been admissible on the part of the plaintiff, to impeach its validity, or avoid its legal effect, without the necessity of pleading the special matter relied on in avoidance of the title. But the .defendant, as in the case just cited, had specially pleaded his title, and set it out as a part of his answer; and, in respect to the admissibility of the evidence offered to impeach it, the present cannot be distinguished from the case of Paul v. Perez. In both cases it was proposed to prove that the title pleaded by the defendant had been forfeited. The character and effect of the supposed forfeiture was different but the principle, as to the necessity of appropriate averments to admit the evidence by which it was proposed to prove it, [672] was the same. There was no question that the title had vested in the party under whom the defendants claimed in this case : and that it remained in him until his supposed abandonment of the country, whereby it was forfeited and reverted to the government. And the difference in the character of the forfeitures sought to be established was, that in the case of abandonment of the country under the 30th Article of the Colonization Law of the 24th of March, 1825, the act of abandonment operated a present forfeiture and divestiture of titile, jyer se. The land instantly reverted to the government, and became a part of the public domain, “ entirely vacant,” in the language of the law and of this Court in the case of Holliman v. Peebles, and, consequently subject to location and regrant. (Holliman v. Peebles, 1 Tex. R. 672.) Whereas-in other cases of forfeiture, the land remained separated from the public domain until the forfeiture was declared; and, com sequently, was not subject to location and regrant, as in the former case. But this difference in the character and effect of the forfeiture in the present case, as we have said, can make no difference as to the necessity of pleading the facts, in which it consisted ; or in respect to the admissibility of evidence to establish the forfeiture, when it was proposed to invalidate a title specially pleaded and relied on by the defendant. And the case we have referred to, is decisive of the present question, and we think rightly so on principle, against the admissibility of the evidence proposed by the plaintiff: as well the depositions offered to prove the same fact, as the other evidence we have considered. The Court, therefore, did not err in excluding the evidence offered by the plaintiff; and the judgment is affirmed.
Judgment affirmed.