Trevino v. Fernandez

13 Tex. 630

• Court: Texas Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Hemphill, C. J.

There were several errors assigned by appellant, which were condensed in the argument as specifying two grounds, viz:

1st. That the Court erred in not sustaining the title of the plaintiff to¿the entire tract; and

2d. In not giving judgment for such portion of the land as they were fairly entitled to recover.

The leading questions in this case are,

1st. Whether the original title under which both parties claim, is valid and such as should be recognized by Courts of law and Equity; and

2d. Whether the plaintiffs are entitled to the whole or only to one-half of the land, the defendants being entitled to the other moiety.

The grounds upon which the Court below decided against the plaintiffs do not distinctly appear from the record. But it is stated in the assignment of errors, that the Court on pronouncing judgment delivered a written opinion to the effect that neither party was entitled to the land, and from the argument of the appellants, it appears that this conclusion assumed for its basis that the grant, being by composition, was inchoate and imperfect, and vested no such right as could be judicially enforced. And it was further said that the Judge below was of opinion that the title was valid, but supposed himself bound, under the language of this Court relative to composition titles, in the case of McMullen v. Hodge, 5 Tex. R. 34, to reject the grant.

On examination and comparison of the titles, it will be found that there is a striking dissimilarity between the grant in McMullen v. Hodge and the one presented in this cause. In both the grant was by composition, but in the former it was to Indians of a Mission, with a prohibition against alienation without license, under the penalty of forfeiture of the grant. The title was held not to vest in the Indians belonging to the Mission at the time of the grant or their heirs, but to give a usufructuary right to such as should from time to time belong to the Mission ; and should that become extinct, no right would survive to the Indians, who were but pupils of the Mission, or their descendants; that the Mission had been extinguished and their lands restored to the public domain before the rights of the plaintiff had accrued, under his purchase from the supposed descendants of the Mission. But in this case, the Primative Judge, waiving all defects and irregularities in the previous proceedings, &c., grants an ample title of property in the lands, without any exception or reservation whatever; and with the usual conditions of cultivation, and the liability of the lands to be used for public purposes, compensation being made, the lands are declared to be vested in the grantees, and their heirs and successors, as obtained by a just and legitimate title of property. The transfer of full dominion over the lands could scarcely have been expressed in more ample terms; and the title was to grantees who had the capacity tojireceive; and its duration was not dependent upon such contingencies as affected the grant in the case of McMullen v. Hodge.

The only point in which there is any similarity, is, that in both the grant was expressed to be by composition. But this point of similarity does not necessarily impress them both with the same qualities in every particular. We have seen that one was of a limited character, subject to defeat and extinguishment on contingencies, which were not imposed on the other, the latter being a grant of absolute dominion. And whether the title be by gift, sale or composition, is not material, unless there be an inherent weakness in a composition title, which defeats the force of the grant expressed in its terms, and reduces it from one of full property to but a contingent or imperfect right.

And this leads us to inquire into the character of a composition title. In the case of McMullen v. Hodge, the counsel on both sides conceded that such grants gave but a tenancy at will; (5 Tex. R. 37, 59;) and the Court, acting doubtless on the presumption of the correctness of these admissions, treated the title as conveying only such limited estate. The admissions of counsel and the opinion of the Court 'were founded doubtless upon L. 15, Tit. 12, Lib. IV, Recop. de las Indias, as translated, in 2 White, p. 53, in which it is declared that all lands admitted to composition shall be sold at auction and without reserve to the highest bidder, as tenant at will, {censo al quitar,) agreeably to the law of the Kingdom of Castile. The original is in the following terms, viz: “y tocias las que “ estuvieren por componer, absolutamente liaran que se ven- “ dan a vela y pregón, y rematen cd mayor postor, dan- “ doselas a razón de censo al quitar, conforme a las leyes y “pragm aticas de estos reinos de Castilla

The question arises whether the translation as found in White be correct or not, and whether the grant of lands with a “ censo al quitar” gives but a tenancy at will; and the counsel of appellants* in a masterly exposition, contends that in no sense or connection whatever can these words imply but a tenancy at will, but on the contrary the “censo al guitar” is of that description of “ censo” which implies a conveyance of the full dominion with absolute power of sale, release, conveyance or other disposition of the land, subject however to the encumbrance.

In attempting to ascertain the intention of the law, we must first fix upon the signification of the word “ censo” and then the phrase “ cegiso al guitar.”

Mr. Schmidt, in his Civil Law of Spain and Mexico, p. 321, translates the word “censo” as “ground rent.” Mr. Johnson, in his translation of the Institutes of Asso and Manuel, gives annuities as the equivalent of the same term; and such annuity is defined by the said Asso and Manuel as a contract by which one person sells and another purchases a right to receive an annual pension or sum. (1 White, p. 145.) Febrero defines a “censo” to be an incumbrance which one imposes on his property in favor of another who advances him a certain capital, and that in that sense it was the right of receiving an annual pension, to secure the payment of which some other property is pledged. (Febrero Mejicano, Vol. 3. p. 101.) Sala defines it to be the right of exacting from another to whom we have granted something, an annual rent or pension. (Lib. II, Tit. 19, Sec. 2.)

It appearing that a “ censo” is an annuity, we will inquire what species of “ censo ” is that -which is denominated, “ al guitar.” And we find that in the Dictionaries of Escriche, of Salva and the late Dictionary de la Lengua Castellan, and in the works of Sala, Febrero and in the laws themselves, the words “ censo al guitar” and censo redimible” are used as equivalent to and identical with each other, and that they both mean a redeemable annuity.

There are three principal species of 61 censo” as known to the laws of Spain, viz: the emphyteutic, the consignativo, and the reservativo. The emphyteutic is the right which one has to exact from another a certain annual pension or sum, by virtue of a transfer to him of the usufructuary right of real property, the legal title remaining in the grantor. This estate is subject to several burthens and liable to forfeiture 'on several contingencies which we need not now specify. The censo consignativo is the right to exact from another an annuity in virtue of having advanced money, and which money is made a charge upon lands of the person who promises to pay the annuity, the full title to such lands, however, remaining in the grantor of the annuity.

The “ censo reservativo ” is the right to receive from another an annual pension by virtue of having transferred land to him by full and perfect title. (Sala and Escriche verbo censo.) The incidents of a censo consignativo need not be discussed, as in no sense can they apply under the facts of this case. The grant is emphyteutic or reservative. In both, lands are given subject to annuity ; but in the first the transfer is only of the equitable right, the legal title remaining in the grantor; whereas by the latter, both the legal and the equitable estates are conveyed to the grantee. That this is a reservative grant, viz: one/conveying full dominion, is manifest from the character of the annuity which by law is declared to attach to composition titles, viz: its redeemable quality. An emphyteutic annuity is not as a general rule redeemable; and when a perpetual annuity in an emphyteutic contract is reduced to one which is redeemable', the grant loses its emphyteutic quality, and'both the usufructuary and the direct dominion are passed to the grantee of the land. (Febrero Mejicano, 3 vol. p. 106, 115.)

It may be observed that for public purposes, by the laws' of 1799, 1801 and 1805, every possessor of property, charged with an annuity, whether redeemable or irredeemable, and whether emphyteutic contracts or otherwise, was allowed to redeem it in Government paper. The law of 1805 was, however, repealed in 1818, and persons allowed in their annuity contracts to make such conditions as they pleased, and enforce their fulfilment. (Escriche.)

It seems then that a redeemable annuity, charged on land, is evidence of full dominion in the grantee; that he has more ample right than that derived from emphyteusis ; and that his estate, instead of being a tenancy at will, as known to the English law, is the very opposite ; that the only will about such title, is that of the tenant himself, who can, at his pleasure, redeem the annuity charged upon his land.

That a grant, which by its terms conveys full property, cannot be an emphyteusis, will be manifest from a glance at some of the incidents of an emphyteutic title. Among other rights, the grantor in such contract is entitled to preference as a purchaser, when a sale is to be made by the tenant and to notice of such sale under penalty of forfeiting the land ; and when he does not purchase, he has a right to the one-tenth, the one-twentieth or the one-fiftieth, as may have been agreed upon in the original deed. (Febrero, vol. 3. p. 104; Escriche.) No such conditions are expressed in this grant, nor are they attached to it by law. No doubt conditions might be imposed on composition as on other titles. As, for instance, in the grant under which McMullen claimed, there was a restraint on the power of alienation. But such restrictions are not imposed merely because titles are by composition. The laws nowhere give countenance to the idea that a title by composition is not as perfect and as ample as that by sale. In the ordinance of 1754, (2 White, 64,) titles by composition and by sale were classed together, and possessors of lands sold or compromised before the year 1700, on the exhibition of their titles, though not confirmed, were to be suffered to retain the free and quiet possession ; and those holding under sales or compromises after 1700 were not to be molested or disturbed. No distinction was made between sales and compromises. In the regulations of Morales, Art. 20, possessors were to be admitted to compromise, and after paying a just and moderate retribution, titles of property were to be delivered.

Where lands were admitted to compromise one would naturally suppose that the price would be adjusted by appraisement or in some such mode. And this mode of fixing the price is contemplated by the Regulations of Morales, Art. 20 and 23; but, according to the terms of the law itself, and as it was executed in the titles on the Rio Grande, it is believed there was but little if any difference between the mode of granting, whether the adjudication was by composition or by way of sale. In either case the lands were exposed at auction and sold to the highest bidder. And in fact, though the Law 15, Tit. 12, Book 4, authorized lands sold on compromise to pass on a redeemable annuity, yet this grant does not seem chargeable with any such encumbrance. Where the purchase money is not paid at the sale, an annual interest might be taxed until the purchase money is discharged. And in the 24th Article of the Regulations of Morales, it was made lawful for purchasers who had not ready money to buy the lands at redeemable quit rent, during which they were required to pay five per cent, yearly. But where the whole of the purchase money is discharged, how an annuity or yearly interest on that purchase money can be chargeable on the land is unintelligible. In fact, in the nature of things no such annuity can exist. There might be some charge by way of quit rent, and which might be exacted and paid merely in acknowledgement of subjection. But a redeemable annuity, or a íícenso al guitar,” can have no place when the sum, of which that annuity was merely the yearly interest, is paid. It is probable that the original Law of May 1631, by which composition lands were ordered to be given as a “censo al guitar,” contemplated no present payment of the purchase money, and imposed a yearly interest until the principal was redeemed ; but that in process of time the practice was changed, and the price required to be paid when title was extended.

At all events there is no doubt that a grant by composition passed the title as completely as by sale, and that the grantee had as ample right as could have been conferred by any other species of title ; and that if in fact there was any censo or annuity attached to composition titles at the date of this grant, it was of a character which in itself imported full dominion in the grantees. There is nothing in the nature and object of a composition title, from which it could be interred that it transferred but an imperfect right. Its purpose was to quiet a possession which had been already taken. This could not be done by granting but a tenancy at will. The idea of quieting a possessor by putting up his land at public auction and exacting from him the full price of a sale, and then giving him but a tenancy at will, is preposterous. The only difference between a title by composition, and that by pure sale, is one which is in favor of the former, viz: that it gives the possessor the lands which he has been occupying and improving. The translation of the phrase “censo al guitar” as found in White, is believed to be utterly erroneous, and the very opposite of what was intended by the law.

The title in the case of McMullen v. Hodge was extended without requiring payment of the media annata. This was translated in the record without the payment of interest. The counsel for the appellee treated the media annata as a rent to be paid half yearly, and incident only to grants by composition. (5 Tex. R. p. 60.) The Oourt adopted the construction" of counsel, that the media annata was rent payable half yearly. But this seems to be a misconception. The media annata were not the rents payable half yearly, but the half of the estimated income or rent for the first year; and they were chargeable not only on composition, but on all grants, titles and offices whatever. In Law 4, Book 8, Tit. 19, of the Eecop. de las Indias, the King speaks of the imposition of the media annata for the benefit, of the public treasury, and that by order of 22d May, 1631, it was to be paid on all offices and charges not ecclesiastic, paying for each office and grant the half of the income of the first year, and that this duty or tax was general and absolute, embracing even his own sons. And in the same Law, Rule 2, provision is made for the payment of the media annata in two instalments, viz: one-half on the delivery of the grant or office, and the other half within the year, extended in the Indias to one year and one-half.

That this is the correct definition of media annata, see the Dictionaries of Salva and Escriche.

In the Institutes of Asso and Manuel, as translated by Johnson, (1 White, p. 86,) it is said that homage and military service were annexed to feuds, until the duty paid in view of military service (lanza) and the annats of the half year, “ media annata,” were introduced as equivalent to them. In a note is the definition of Palacios that lanzas consist of a certain service in money which the nobles and grandees pay each year, and the media annata the sum paid for the title and honor.

The title in this case shows that full property was conveyed. Possession has been held under it for seventy years, almost double the time which, under the Spanish law, would be required to presume a grant. (2 White, 563.) And we are of opinion that the title was such as had judicial standing, and would authorize an action to try title, or any other proceeding necessary to enforce rights claimed under it.

The grant having been shown to be such as would pass the legal title, the next question is, whether the plaintiffs were entitled to recover the whole of the land ; and for this they contend on the grounds,

1st. That the title of the possession was extended to Bartolomé alone, and

2d. That Bartolomé and those claiming under him have been in adverse possession for more than the period required by the laws of prescription.

We are of opinion that the first ground cannot be maintained. Some of the documents appear to have not been inserted in the title; but from the report of the Abagado Fiscal, the secohd paper in the proceedings, it appears that there had been before the grant an ocular inspection and survey of the lands ; and these lands having been denounced by both Bartolomé and Eugenio Fernandes, and paid for by both, as appears from the deed itself, were granted by the Privative Judge in full and absolute property. True the Justice of the province is directed to place the parties in possession. This, however, with reference to a title so complete as this, was but a ministerial act. He had no authority to depart from the ¿rant, or to deprive one of the grantees of his right; and his act, placing one only in possession of the whole of the lands, must be regarded as enuring to the joint benefit of both.

But, although the act of possession to Bartolomé may be regarded as for the benefit of both; yet it is very clear from the evidence, that Eugenio and his heirs were long before the commencement of this action barred of all title by prescription. The adverse possession of Bartolomé commenced at the latest, in 1791, when by his last will he declared that he was the owner of the whole tract, expressly excluding Eugenio on the ground that he had paid no part of the purchase money or dues, the whole having been paid by the testator himself. The right of his wife, Dona Bita, to one-half by way of community, was recognized,, and the other half was devised to her and two children of the testator in equal portions ; and Dona Bita, the widow, subsequently bequeathed her portion of the land to her nephew, Don Jose Maria de la Garza, the father of the present plaintiffs.

The great weight of the evidence is, that not only was the land occupied by Bartolomé and those who claim through him exclusively, and adversely to the right of Eugenio and those who claim under him, from 1791 to 1842 ; but that Eugenio himself, although he lived quite a number of years after the death of Bartolomé, did not make any claim to the land. True he was living on it after the death of Bartolomé, and for some four or five years afterwards, but the evidence, though somewhat conflicting, is that he did not hold himself out as owner, or as having title; whereas Dona Bita, the widow of Bartolomé, was during this period in the performance of all those acts which indicate a full right of ownership. Some years before his death, Eugenio removed from the land and never returned; and a conclusive circumstance to show that the land had never been claimed by Eugenio, and that he acquiesced in the right set up by Bartolomé, is the fact that his sons, who must have been of some age before his death, had not, for more than thirty years afterwards, ever heard that their father had any interest or claim in the grant; and they were informed of it for the first time, by one of the witnesses, in 1842.

There is no doubt that prescription commenced to run before the death of Eugenio, and it continued notwithstanding the disability of minority of the children of Eugenio; and the fact that the sons were for some time soldiers, cannot avail them in this case, for the reason that it was not set up in the answer,, nor is it supported by the evidence to any sufficient extent to be available ; nor is there any probability that their service was so prolonged as not to leave sufficient time for the bar of twenty years to operate before eighteen hundred and forty-two.

It is however contended by defendants, that their title to ownership of the land, and the rights of the parties were determined by a decree of the Court of the First Instance in Matamoros, some time in the year 1842, in which half of the tract was adjudged to the present defendants, and that this was duly carried into effect by a survey and division of the tract, and by placing the defendants in possession of the portion assigned to them.

One of the objections urged to this decree is, that it was made by a foreign Court, having no jurisdiction over the person or subject matter, and that this Court is bound by the political action of the authorities of the Republic, which on the 19th December, 1836, defined its boundaries, extending them to the Rio Grande, and that this excluded the jurisdiction or authority of the Courts of Tamaulipas over any lands lying within those limits. On the other hand it is insisted by defendants, that the country lying between the Rueces and the Rio Grande, though claimed by Texas, was not actually conquered until 1846, and that until that time this territory, and especially the portion bordering on and adjacent to the Rio Grande, remained in the possession of, and under the laws, control and government of, the Republic of Mexico, and that consequently all the acts of that Government or its authorities in the administration of its laws, and in the regulations of its municipal affairs, so far as the same affected the rights of individuals with each other, are as valid and binding as if done in the exercise of competent authority.

This is a subject of some difficulty, and of considerable interest doubtless to the country adjacent to the Rio Grande. For it is only in relation to this region, that the operation of these principles will be considered, the actual possession and control of the Mexican authorities being restricted in fact to limits at no great distance from that river.

And it appears from such examination as can now be given to the subject, that the assumption of the defentants as to the force of the acts of the Mexican authorities is well founded. Without entering into the considerations of policy, justice and humanity, which require of the Government defacto the preservation of order, and the adjustment of private rights and claims between individuals, I will refer at once to some authorities in which the effect of the acts of a Government d,e facto have been considered. The first case to which I shall refer is that of the United States v. Rice, 4 Wheat. 246. The town of Gastine had been captured by the enemy on the first day of September, 1814, and remained in his exclusive possession until after the ratification of the treaty of peace in February, 1815. Goods were imported into Gastine during that period, and paid duties prescribed by the Government in possession. After peace, duties were claimed on the same goods by the Government of the Unitad States, and the Court said such claim could not be sustained ; that by the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws and such only as it chose to recognize and enforce. No other laws could be obligatory, for where there is no protection or sovereignty, there can be no claim to obedience ; that Gastine was in the same predicament that it would have been had it been a foreign territory, and ceded by treaty to the United States. In Keene v. McDonough, 8 Peters, 310, some proceedings were had in 1803 and 1804, before the' Governor of the port of Baton Rouge, relative to the purchase of lands at the sale of an estate. The adjudication to one purchaser was annulled, and the property finally adjudicated by decree to another. It was held by the Court, that the adjudication having been made by a Spanish tribunal after the cession of the country to the United States, did not make it void ; that the actual surrender of the territory did not take place until some time after these proceedings. It was the judgment therefore of a competent Spanish tribunal, having jurisdiction of the case, and rendered while the country, although ceded, was de facto in the possession of Spain and subject to Spanish laws. Such judgments, so far as they affect the private rights of the parties thereto, must be deemed valid.

In Davis v. the Police Jury of Concordia, 9 Howard, it was held that in a cession of territory the national character continues for commercial purposes until actual delivery; but between the time of signing the treaty and the actual delivery of the territory, the sovereignty of the ceding power ceases except for strictly municipal purposes, or such an exercise of it as is necessary to preserve and enforce the sanction of its social condition. But the power to grant lands, ferries, franchises, &c., is an attribute of sovereignty which ceases; otherwise there might be a serious encroachment on the prerogatives of the succeeding sovereignty. In the Fama, 5 Robinson’s Admiralty Reports, p. 107, Sir Wm. Scott was clearly of opinion that on the several grounds of reason or practice and judicial recognition, until possession was actually taken, the inhabitants of Louisiana continued under the former sovereignty of Spain.

In addition to these authorities, may be cited that of Pena y Pena, the illustrious Chief Justice of the Supreme Court of Mexico, who in his “Practica Forense,” in treating of the validity of judgments or acts of judicial officers who are reputed to have competent authority, though in fact they had none, applies the doctrines recognized in such cases to the acts of judicial officers during the period of revolutionary disturbances, when such officers are changed at every change of fortune, and as the one or the other party may have the predominance, says that all judicial acts done or authorized by an illegitimate authority (meaning a government do facto) might be regarded as null, and of no validity or effect, if the strict principle of law were alone considered ; but the essential good of the nation, and the peace and tranquility of its citizens, in relation to a branch so important as the judicial, demand that these should.be legalized, and be held as valid and subsisting, since if it were not so, a door would be opened to an innumerable multitude of complaints, reclamations and attempts to undo all that had been done, so that nothing would be solid and stable; the fortune and the property of the citizens would be consumed in the renewed expenses and damages which the multitude of suits would inflict; and the people would be buried in a terrible chaos of judicial anarchy, more transcendental and pernicious than the illegitimate domination which it was designed to repudiate. (Vol. 2, p. 81.) It appears that a number of treatises were written on this subject, with reference to the effect of the acts of the French autorities in Spain during the period of the French conquests ; and from the author of a work entitled an “ Examination into the Crimes of Infidelity to the Country, imputed to Spaniards who submitted to the authority of the French Government,” a long extract is taken by Pena y Pena, from which we cite the following, viz: “ It is madness to suppose that a nation could exist (which “ would not conflict with and destroy itself,) without a public “ administration, and without laws; and it is a dream to pre- “ tend that it could be governed by laws distinct from those “ given by the Government that has the power. There is but “ one of two alternatives, either that there should be no judi- “ cial proceedings among a conquered people, and all actions, “ beneficial or mischievous, be alike permitted, and all trans- “ gressions and crimes pass with impunity; or judicial pro- “ ceedings must be tried and determined by the laws of the “ conqueror. The first proposition is inadmissible, as by it “ society would be ruined, and the second must not only be “ tolerated but sanctioned, as the welfare of society cannot be “otherwise secured.” In a note, Pena y Pena says, that so forcible and convincing, both in justice and policy, were the reasons in favor of conformity to the laws of the Government de facto, that they were adopted to some extent by the Spanish authorities in the civil wars between Spain and Mexico ; and notwithstanding their determined opposition to the independence of the Country, yet where the insurgents or republicans were predominant they admitted that payment of contributions to the rebels, as they were called, was not a crime against the country. See the Report of D. Miguel Bataller, the Auditor of War, to this effect. (Practica Forense, Vol. 2, p. 88.)

From these authorities it is manifest, that the acts of the Government in actual possession, in the ordinary administration of its laws, so far as they affect private rights, are valid, and can be set up to support an action or defend a fight. Those affecting public rights are void and cannot be enforced.

The objection to the judicial proceedings, then, under which it is claimed that the rights of these parties to this land have been adjudicated, on the supposed ground of the want of authority in the Court over the subject matter, is not tenable.

But an objection, and one which is believed to be fatal to the conclusiveness of the Decree is, that it was not final when the Mexican authorities ceased to have jurisdiction. An appeal was then pending, which had not been determined; and if there be fault with any of the parties, in protracting the appeal, it must be with the defendants, by whose attorney (if the record is properly understood) the papers were taken from the Court. It is very true, that the executive officer below regarded the appeal as only devolutive and not suspensive, and therefore carried it into execution by placing the defendants in possession. But, if the sentence had been reversed on appeal, these proceedings would have gone for nothing, and the plaintiffs would have been restored to their original possession. In this condition of the proceedings the plaintiffs have a right to insist that there was no final decision against them, and that they are not restrained by the adjudication and proceedings under it, from asserting their rights in a new and distinct action.

This view of the effect of the want of finality in the proceedings will dispense with the necessity of discussing the question raised as to the insufficiency of the proof of the title under the documents offered in evidence by defendants, as the decree itself was not produced, but only the executive proceedings by which the decree was enforced. This is an objection of serious import. The well established rules of law is, that where title is claimed under judicial proceedings, as for instance under a Sheriff’s sale, the execution must not only be produced but also the judgment, for they are all parts of the title. (Cowen and Hills notes, 2 part, 790.) And where a sale was under a decree of a Court of Chancery, and the purchaser, in deraigning title, produced a decretal order directing execution to issue on a prior decree recited in the decretal order, it was held that the original decree which was the basis of the execution, should be produced. (Wilson v. Conine, 2 John. 280.) It is admitted that proceedings to carry the judgment of a Spanish Court into execution assume something of a judicial form, and it may be said that in this case there was a species of sublitigation arising out of contests about enforcing the decree, and the parties might probably from their acts and admissions, be precluded from denying its existence, but still as this was the foundation of the authority on which the executive officer assumed to act, and without which his acts would have been wholly void, it would not be unreasonable to insist that this act, which is the basis of defendants’ rights, should be produced. The production of the decree would save the necessity of inquiring whether, in the executory proceeding, there is sufficient evidence of such decree, and the consequences which might ensue, were such evidence held insufficient. "Where the decree was lost or not easily to be produced, a very different question would be presented.

It is objected in the argument by defendants, that the plaintiffs have been guilty of laches, and that more than three years elapsed after the organization of the Courts under this State, before the suit was commenced by the plaintiffs. This position need not be discussed. IsTo such point was saved by the answer. There is a general allegation thát the defendants are now and have been legally holding and occupying a portion of the lands from the date of the grant, but this is too vague to set up limitation under the special provision in regard to the three years limitation. It would not apprize the opposite party that any such right wopld be claimed.

This cause was submitted to the Judge below on a statement of facts, and this Court, having competent authority for that purpose, it is ordered that the judgment of the District Court be reversed, and that such judgment be here rendered as should have been pronounced below.

Eeversed and re-formed.