
    No. III.
    Board of Land Commissioners of Nacogdoches County v. James Reily, Assignee.
    (See .)
    
      Appeal from Nacogdoches County.
    
    
      
      .—Board of Land Commissioners v. Reily, Assignee, p. 381.
      Laws to detect fraudulent land certificates are constitutional. Johns v. Republic, Dal., 621; Hosner v. De Young, 1 T., 764; Peck v. Moody, 23 T., 93; Sherwood v. Fleming, 25 T. Supp., 408; Durrett v. Crosby, 28 T., 687; League v. De Young, 11 How., 185. Act of November 29, 1871 (Gammel’s Laws of Texas, vol. 7, p. 47), providing for survey and return of general land certificates, is constitutional. Snider v. I. & G. N. Ry. Co., 52 T., 306. A colonist was not entitled to a grant as head of a family, unless his family was resident in Texas. Land Commrs. v. Bell, Dal., 366; Land Commrs. v. Walling, Dal., 524; Republic v. Skidmore, Dal., 581; Langford v. Republic, Dal., 588; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichnor v. State, 2 T., 269; Lewis v. Ames, 44 T., 319, 345; Lott v. King, 79 T., 292; Hill v. Moore, 85 T., 335; Byrn v. Kleas, 15 T. C. A., 205; Union Beef Co. v. Thurman, 70 Fed. Rep., 965. An unmarried colonist, under twenty-one years of age, was not entitled to a headright grant. Lockhart v. Republic, 2 T., 127. But it will be presumed from the fact that a headright certificate was granted by the proper authority, that the grantee was the head of a family, and evidence is not admissible in a collateral proceeding to show that he was not married and that his family was not in Texas. Johnston v. Smith, 21 T., 722; Bowmer v. Hicks, 22 T., 155; Howard v. Colquhoun, 28 T., 134; Burkett v. Scarborough 59 T., 495; Capp v. Terry, 75 T., 391; Boone v. Hulsey, 71 T., 176; Hill v. Moore, 85 T., 335; Byers v. Wallace, 87 T., 503. Grant is valid, if the grantee in good faith, intended to move his family to Texas. Republic v. Young, Dal., 464; State v. Skidmore, 5 T., 469; Russell v. Randolph, 11 T., 460. Under Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), it was necessary to prove in court, the same facts which the statute required for the satisfaction of the Board of Land Commissioners. Republic v. Skidmore, Dal., 581; Johns v. Republic, Da)., 621; Land Commissioners v. Raguet, 2 T., 98. Claimants were required, prior to Act of February 2, 1848 (Gammel’s Laws of Texas, vol. 3, p. 18), to prove same facts under section 11 of Act of February 4, 1841 (Gammel’s Laws of Texas, vol. 2, p. 635). Tichner v. State, 2 T., 269; State v. Mason, 2 T., 315; Linn v. State, 2 T., 317. Titles issued by alcaldes and commissioners after closing of Land Office by Act of Consultation on November 13, 1835 (Gammel’s Laws of Texas, vol. 1, p. 541), which took effect immediately on adoption, are null and void. Donaldson v. Dodd, 12 T., 381; Spier v. Daman, 27 T., 205; Parker v. Bains, 59 T., 15. If the title was actually issued before November 13, 1835, making out and delivering the testimonio shortly afterwards did not invalidate the title. Houston v. Blythe, 60 T., 506. Holders of orders for surveys and headright certificates, issued prior to November 13, 1835, could only establish their claims in the mode prescribed by Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), upon proof of facts enumerated in section 12. Land Commissioners v. Walling, Dal., 524; Republic v. Skidmore, Dal., 581; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T., 98; Land Commissioners v. Riley, 3 T., 237; Capp v. Terry, 75 T., 391. All certificates returned by commissioners as genuine, but not recommended on account of want of oath required by section 12 of Act of December 14, 1837, were validated and directed to be patented by Act of January 19, 1841 (Gammers Laws of Texas, vol. 2, p. 528). Whitehead v. Foley, 28 T., 1; Spofford v. Bennett, 55 T., 293. Under Act of February 5, 1840 (Gammel’s Laws of Texas, vol. 2, p. 335), patents could only issue on certificate of recommendation from Board of Land Commissioners, and holders of unrecommended land certificates had no standing in court without it. Norton v. Land Commissioners, 2 T., 357; Bracken v. Wells, 3 T., 88, 90; Kemper v. Victoria, 3 T., 135; Miller v. Brownson, 50 T., 583. All surveys supported by recommended certificates valid; without them, invalid. Warren v. Shuman, 5 T., 441; Scott v. Mather, 14 T., 235; Whitehead v. Foley, 28 T., 268. Headright certificate is not color of title, unless recommended. Horton v. Crawford, 10 T., 382; Whitehead v. Foley, 28 T., 268. Prohibition in Act of February 5, 1840, against surveys on unrecommended certificates after May 1, 1840, did not legalize surveys made either prior or subsequently on unrecommended certificates. Warren v. Shuman, 5 T., 441. It seems that surveys on genuine headright certificates are valid, though not recommended by commissioners. Howard v. Perry, 7 T., 259; Hart v. Gibbons, 14 T., 213. But under Act of January 29, 1840 (Gammel’s Laws of Texas, vol. 2, p. 313), authority to issue patents on first class headright certificates was based on recommendation. Miller v. Brownson, 50 T., 583. Under extension of time allowed by Constitution of 1845, a survey made on an unrecommended certificate prior to> January 1, 1844, suit to establish claim could be maintained in 1847. Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Scott v. Mather, 14 T., 235. Under Act of February 7, 1860 (Gammel’s Laws of Texas vol. 4, p. 1410), providing for re-examination of rejected warrants and certificates, a rejection made before limit of time fixed in section 11 is not void, the object of the statute being to give claimants ample time to prove their claims. Durrett v. Land Commissioner, 28 T., 687; Under Act of April 25, 1871 (Gammel's Laws of Texas, vol. 6, p. 962), holders of unlocated certificg.tes were not required to locate them at any particular period between passage of law and January 1, 1875. Laws in force prior to Act of November 29, 1871 (Gammel’s Laws of Texas, vol. 7, p. 47), did not require certificate and field notes to be returned within twelve months after survey. Snider v. I. & G. N. Ry. Co., 52 T., 306; Snider v. Methvin, 60 T., 487. Under Revised Statutes 1895, arts. 4138 and 4145, survey must be made within twelve months after entry, and field notes returned within twelve months after survey. Von Rosenberg v. Cuellar, 80 T., 249. So long- as the title is imperfect or inchoate, the State may establish such regulations as it may deem necessary to perfect the title, and attach such terms as it may deem proper. It may even disavow. Land Commissioners v. Walling, Dal., 524; Johns v. Republic, Dal., 621; Hosner v. De Young, 1 T., 764; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T., 98; Norton v. Land Commissioner, 2 T., 357; League v. De Young, 2 T., 497; Kemper v. Victoria, 3 T., 135; Land Commissioners v. Riley, 3 T., 237; Smith v. State, 5 T., 397; Jones v. Borden, 5 T., 410; Warren v. Shuman, 5 T., 441; Land Commissioner v. Smith, 5 T., 471; Paschal v. Perez, 7 T., 348; Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Hamilton v. Avery, 20 T., 612; Peck v. Moody, 23 T., 93; Sherwood v. Fleming, 25 T. Supp., 408; Smith v. Taylor, 34 T., 589; Snider v. Methvin, 60 T., 487; Capp v. Terry, 75 T., 391; Jones v. Lee, 86 T., 25; Thompson v. Baker, 90 T., 163; League v. De Young, 11 How., 185. Under section 23 of Act of February 5, 1841 (Gammel’s Laws of Texas, vol. 2, p. 627; Rev. Stats. 1895, art. 5259), location claims and surveys, headright certificates, pre-emption claims, etc., are sufficient title to maintain action of trespass to try title, or defense to. Lambert v. Weir, 27 T., 359; Buford v. Gray, 51 T., 331; Buford v. Bostick, 58 T., 63; Horne v. Gambrell, 1 App. C., sec. 999. Prior to Rev. Stats., 1879, action could be maintained on right acquired by mere location. Since then, it requires location and survey. Thomson v. Locke, 66 T., 383; Duren v. H. & T. C. Ry. Co., 86 T., 287. Survey must he legal, 80 T., 249. Von Rosenberg v. Cuellar, 80 T., 249. Order of survey under colonization laws, prior to closing Land Office in 1835, is not sufficient title, unless presented to Board of Land Commissioners and established in the manner required by Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404). Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Hughes v. Lane, 6 T., 289. Nor is a certificate not recommended by Board of Land Commissioners under Act of January 29, 1840 (Gammel’s Laws of Texas, vol. 2, p. 313). Kemper v. Victoria, 3 T., 135. Land certificates required by Act of August 1, 1856 (Gammel’s Laws of Texas, vol. 4, p. 432), to be presented to Commissioner of Claims for registry within two years from September 1, 1856, are not evidence of title, without proof of registration. Peck v. Moody, 23 T., 93. Rules stated above are not applicable where patents have issued. Merrill v. Roberts, 64 T., 441.
    
   HEMPHILL, Chief Justice.

The appellee in this case, as the as-signee of various individuals, applied to the board of land commissioners for the county of Nacogdoches for certificates for the claims to land to which he alleged his assignors were respectively entitled as the grantees of orders of survey, obtained according to the laws of the country. The application being rejected, an appeal was taken to the district court, and during the pendency of the case before that tribunal, the following agreement was entered into between James Reily, the appellee in this court, and Charles S. Taylor, the district attorney of the Fifth Judicial District, viz: “It is agreed that in all the land cases now on docket of the District Court of Nacogdoches, wherein James Reily has sued the board of land commissioners, either as assignee or attorney, upon orders of survey with field notes annexed, the following points shall be considered as established: 1. That the order of survey was obtained from a legally authorized commissioner, and the survey made by a legally authorized surveyor, and that the section of the general provisions of the Constitution which recites That all orders of survey legally obtained by any citizen of the Republic from any legally authorized commissioner, prior to the act of the late Consultation closing the land offices shall be valid/ has been complied with. 2. That he is the regular purchaser or attorney of the original grantee, and entitled as assignee or attorney to sue the board of land commissioners for a certificate; provided such admission of right in said Reily to sue does not go in avoidance of any duty or obligation that may by operation of law have devolved upon or become obligatory upon the grantee. 3. That these are the questions to be submitted to the court and jury: (1) That inasmuch as the original grantee has not complied with the requirements of the twelfth section of the land law of 1837, can the said Reily recover before the court a verdict against said board? (2) That an order of survey with field notes annexed do not constitute a legal title, and is not therefore the subject of transfer or assignment.”—Dated October 3, 1839.

On the 15th of the same month two of the appeals were tried and verdicts found for the said Reily. On the 17th a third was tried with a similar result; and on the same day an additional agreement was entered into, by which it was provided, “that all the foregoing cases mentioned or referred to, being of the same nature and dependent on the same principles, the cause to be tried that day should decide all the others,” the parties reserving to themselves the right of appeal, if desirous to take the same. Accordingly the record enumerates more than seventy cases, which it states came on to be heard, and upon which a general judgment was entered in favor of the said Reily. It states substantially “that the plaintiff and district attorney having submitted said causes without further argument to the court, the record and evidence being the same in all respects as in the three several causes tried at this term of the court between the same parties, which were submitted to the court and jury, and full argument had thereon, as will more fully appear by the agreement of the district attorney and the said plaintiff on file, all of which being fully considered by the court, it was adjudged and decreed that the said James Reily, assignee as aforesaid, do recover from the board of said commissioners certificates for the quantity of land respectively annexed to the names of each of the assignors mentioned in the foregoing cases; provided, the decision of this court, in the case of the said James Reily, assignee as aforesaid, be confirmed by the Supreme Court, upon the facts as by agreement between the said James Reily, assignee as aforesaid, and Charles Taylor, district attorney.” The board of land commissioners appealed to this court from the verdicts and judgment in the court below.

It is urged by one of the counsel for the appellee that the agreement must govern the court, and we can not go beyond it. The question of the propriety or binding efficacy of this transaction will not be considered by this tribunal. It has not been resisted by the counsel employed for the Republic, and will therefore pass undisturbed. The appeal will be considered on the facts, or points admitted, as established in the court below; and the only question is, whether the facts, as established, authorized the jury in finding a verdict in favor of the appellee. What, then, were the points conceded by the admissions of the district attorney ?

1. That the order of survey was obtained from a legally authorized commissioner, and the survey made by a legally authorized surveyor, and that the provision of the Constitution in relation to the validity of orders of survey had been fully complied with.

2. That the appellee is the regular purchaser or attorney of the original grantee, and entitled as assignee, or attorney, to sue the board of land commissioners for a certificate, provided such admission of right in said Reily to sue does not go in avoidance of any duty or obligation that may by operation of law have devolved upon or become obligatory upon the grantee. If any fact can be found in the third point it shows that the original grantee has not complied with the requirements of the land law of 1837.

But it is urged that the record does not reject the presumption that Reily made all the proof required by the twelfth section of the land law of 1837. We can not discover any solid foundation for such a presumption. The admissions were unquestionably liberal, but they can not be extended beyond the plain and obvious meaning of the terms in which they are expressed, to embrace other facts than those intended to be included therein. They must be confined to the points which in clear and unambiguous terms are conceded to be established.

Did, then, the facts admitted authorize the finding of the jury in the court below ? We are clearly of opinion that they are insufficient to sustain the verdict. There are several material facts required to be proven by the twelfth section of the land law of 1837, which are not admitted and can by no fair inference be considered as proven. By that section of the law, persons claiming lands are required to swear that they were resident citizens of Texas at the date of the declaration of independence; that they did- not leave the country during the campaign of the spring of 1836, to avoid a participation in the struggle, etc. .They must also prove that they were actually citizens of Texas at the date of the declaration of independence, and have continued so to the time of making the application, etc. Persons claiming a grant to land by purchase must prove in the manner required by the act, that their vendors are actually entitled to said grants of land from the government, etc. “And all orders of survey of headrights, procured under the colonization laws previous to the declaration of independence, shall be submitted to the examination of the land commissioners, and the holders of the same, whether they be original claimants, their heirs or assignees, shall be subjected to the same formalities and requisitions in procuring said headrights, as pointed out for other individuals in the law.” It is apparent from this section that where the grantee does not appear in person, his assignee must prove that the assignor has complied with the requirements of the law.

The record furnishes no evidence that the assignee in this case offered or attempted to make any such proof. Nothing is admitted but the legality of the orders of survey and the regularity of their assignments to applicant; and on these admissions it is clear that he was not entitled to the judgment of the court below.

Nor can it be maintained, as was urged, that it is unnecessary in the district court to prove the facts which the statute requires to be established to the satisfaction of the board of land commissioners before a certificate can be obtained. The statute prescribes the conditions on which certificates shall issue, and these must be complied with, before any tribunal which has cognizance of the cause is authorized to decide in favor of the applicant.

But it was alleged, though not urged, that the twelfth section of the land law of 1837 was unconstitutional. Had there been a serious attempt to impugn the provisions of that section, as in contravention of any rights which may have been guaranteed to the appellee by the Constitution, it would have been the duty of this tribunal to have deliberated on and decided the question. But under the circumstances we have not thought it incumbent on us to take the matter into consideration. The appellee has not attempted to comply with any of the requirements of that section. Now it is obvious that many of the conditions there imposed are in entire accordance with the Constitution, and it is believed that none of the provisions of the two instruments are in conflict. But the point is left open for future discussion when it can be decided on solemn argument and mature deliberation.

It was also urged that under the twentieth section of the land law of 1837, the appellee was entitled to a certificate and patent. This position is untenable. The twentieth section requires the holder of an order of survey, before obtaining a patent, to produce a certificate from some board of land commissioners. This can not be obtained without making the proof required by law. The provisions of the two sections are in entire harmony and the obligations imposed by the one are neither removed nor diminished by the other.

It was contended that the eighth section of the act passed at the last session of Congress, “To detect fraudulent certificates,” conferred a right upon the appellee, which was not taken away by the subsequent Act of the 5th of February, as the latter act did not go into effect until three days after the former.

That the latter act was not in force until three days after the former was in operation in all of its provisions, is a position which is questionable; but the whole question in relation to the conflict between these two acts is waived as unnecessary to the decision of this case. The right of appeal is guaranteed by the Constitution. The Legislature can not take it away from individuals; and it will not be considered as relinquished by the government unless express terms are used to that effect, or that is the legitimate inference to be deduced from the provisions of the subject. It was decided by this tribunal at its last session, that under the laws of the land the right of appeal was not taken away from the government when the verdict of the jury was in favor of the applicant in the trial, authorized by the sixteenth section of the land law of 1837. The opinion of this court has not been changed in relation to the correctness of that decision.

The appeal in this case was from a verdict a jury gave, under the sixteenth section of the land law of 1837. It had been taken long before the passage of the act “To detect fraudulent land certificates.” By it, the verdict of the jury and the judgment of the court were suspended in their operation. It was before this court and fairly within its cognizance and could not be withdrawn by legislation, unless such was the plain and necessary import of the law in relation thereto.

It is unnecessary to express any opinion on the assignability of orders of survey. The suit was commenced under the land law of 1837, and that recognizes the power of the assignee to make the proof required by the statute.

The rendering of one general judgment on a number of separate causes, as was done in this instance, is an anomaly in the history of judicial proceedings; and we hope no similar entry will again be found in the records of our courts. The law provides that such appeals shall be tried before a jury, and the entering of judgment unless on their verdict is not justifiable.

As the appellee may have it in his power to establish the proofs required by the land law of 1837, we will not, in reversing the decision of the court below, proceed to enter the judgment here which should have been rendered by that court.

And as perhaps in the prosecution of these claims the parties may again appear before this tribunal, it must be understood that the whole of the facts, all of the evidence, whether documentary or oral, should be laid before this court. It is our duty to review causes already decided and on the facts on which the decisions were founded; not on partial or garbled statements, or on issues which might perhaps be made up to obtain the opinion of the court.

It is ordered, adjudged and decreed that the judgments of the court below, in all the cases enumerated in the record in this appeal, be reversed and set aside, and that a new trial be granted to the said appellee in all the said cases.

Reversed and remanded.  