
    No. XXVI.
    Warren D. C. Hall v. James A. E. Phelps.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—Hall v. Phelps, p. 435.
      On dissolution of injunction, plaintiff is entitled to have petition continued over for final trial on merits. Horton v. Jones, Dal., 466; Hanchett v. Gray, 7 T., 549; Fulgham v. Chevallier, 10 T., 518; Lander v. State, 12 T., 462; Burnley v. Cook, 13 T., 586; Eccles v. Daniels, 16 T., 136; Sims v. Redding, 20 T., 386; Dangerfield v. Paschal, 20 T., 536; Edrington v. Allsbrooks, 21 T., 186; Dearborn v. Phillips, 21 T., 449; Floyd v. Turner, 23 T., 292; Baldridge v. Cook, 27 T., 565; Grant v. Chambers, 34 T., 573; Aiken v. Carroll, 37 T., 73; Hewett v. Thomas, 37 T., 520; Pullen v. Baker, 41 T., 419; Kelley v. Whitmore, 41 T., 647; McKay v. State, 44 T., 43; Gaskins v. Peebles, 44 T., 390; Bridges v. Cundiff, 45 T., 437; Watt v. White, 46 T., 338; Snow v. Nash, 50 T., 216; Texas Land Co. v. Turman, 53 T., 619; Hale v. McComas, 59 T., 484; Washington County v. Schulz, 63 T., 32; Love v. Powell, 67 T., 15; Daugherty v. Gibbs, 2 U. C., 255; Wagner v. Edmiston, 1 App. C., sec. 678.
    
   HUTCHINSON, Justice.

On the 23d July, 1838, Phelps instituted suit against Hall. In his petition, it as alleged that on the 16th August, 1824, a grant issued to him from the Mexican government for a league of land called the Orozimbo league, on the west bank of the Brazos, being number 3 above the league of Martin Varner; that thereon he erected a dwelling, tenements and improvements, occupying it with his family, composed of himself, a wife, children and slaves, and cultivating the same until August, 1831—having in all things performed the conditions of the grant to him as a colonist; that on the 13th of that month, being himself absent with his wife on a visit to a child in the United States, having left his slaves and his overseer in full possession, Hall, with violence and without any right or authority, expelled the overseer and the slaves from the dwelling and tenements they occupied, driving them to some distant huts on the land; and about the 6th of the November following he in like manner drove them wholly from the land, putting out of the inclosures the household furniture, etc., leaving the same to be wasted and destroyed, and took entire possession of the dwelling, tenements and premises, and continued with force to occupy until March following; that meantime Phelps returned, sought restoration of his estate, but it was withheld until after an agreement was extorted from him to convey 1000 acres on the lower part of the league, in consideration of being restored to possession of the residue—and also a conveyance of the 1000 acres accordingly. Such is an outline of the prolonged injury, which is circumstantially stated in the petition. It is averred that owing to the distracted condition of the country in regard to the administration of justice, and the revolution that intervened, the suit had been delayed. General damages for the tortious consumption, injury and destruction of personal property and the provender of the crop of 1832, are demanded; and it is prayed that the deed for the 1000 acres may be brought in and canceled and plaintiff quieted, etc.

On the 18th of March, 1840, Hall answered, demurring to the petition for multiplicity of demands, etc., denying generally the injuries charged, and stating in regard to the conveyance: “He denies having used force or violence to compel or induce the plaintiff to execute the deed which is prayed to be canceled; on the contrary he alleges that the said deed was made and executed for a good and valid consideration.” And it concludes with the plea of prescription. The answer was not verified.

The cause was tried and heard on the-day of October, 1840. A jury found that the defendant entered on the premises of the plaintiff without any title in law or warrant of authority from the plaintiff; that the plaintiff, with a view to be restored to possession, gave up one portion of his land to get possession of the other portion, and that the title of the plaintiff was genuine. On the trial, the defendant’s counsel moved that the jury should be instructed: 1. If they believed the parties compromised their difficulties and settled the same, they should find for the defendant. 2. If they believed the deed to defendant was made without force or threats, they should find for the defendant as to the deed. 3. If they believed that after the alleged force, etc., the parties settled their matters and lived together amicably, they should find for the defendant. 4. Even if force were used at first, still if the plaintiff, when not under its influence, complied with his contract, he could not recover back the thing sold or given. These the court refused to give, but charged the jury, if they believed the defendant entered on the premises without any title in law or warrant of authority from the plaintiff, and that he, with a view to be restored to possession, gave up one portion of his land to get back the other, they might declare the title so made as void; that they should determine from the evidence, if this had been such a case; that if they believed the defendant had a doubtful claim to the league granted to plaintiff, they might find for the defendant; but to come to that conclusion they should be satisfied the defendant had more than a shadow of title; and that if they believed the defendant’s entry on the land was without any right to enter, they might find such damages as the evidence warranted. The court after the verdict proceeded to make a decree. After giving in that decree a summary of the proofs and evidence, it was adjudged that the deed for 1000 acres be null and void, and be delivered by the defendant to the sheriff of Brazoria County, to be brought into court and canceled; that the defendant should be enjoined from ever disturbing the plaintiff in his possession of the league of land, and that the plaintiff recover his costs.

The evidence, whether documentary or ore tenus, is moreover spread on the transcript, and because it so fully sustains the petition, verdict and decree, it would be useless to quote it, but we will proceed at once to notice the grounds for reversal urged by the appellant’s counsel.

1. It is contended that the deed of January 12, 1832, prayed to be canceled, should have been produced, or its absence accounted for, as a basis for proof of its contents; there being no proof to show the consideration of the deed. This position is untenable. The chief object of the suit was to nullify the deed as an instrument illegally extorted from the plaintiff and as being in the hands of the def endant, liable to be used by him injuriously to the plaintiff, who so far from needing it as a memorial of any right he claimed, reprobated it as inherently vicious and cast himself upon the court to protect him against it. Had it been useful to him as evidence, be would have been required to have notified the adverse party to produce it. The title sought to be protected by it was assailed by the petition; and if the paper contained anything favorable to the defendant, he could have used it as defensive proof. Its existence, and the land on which it was expected to operate, were alike admitted in the answer; and by that answer the question was raised, if it was for a good or valid consideration. Now what was the consideration of that deed ? The answer is that it was a good and valid one; but what sort of consideration is not intimated. Let it be repeated that the defendant did not afford to the answer the verification of an oath. He had not such temerity. We are to look into the volume of proof sent up to find why, on what cause, that deed was made. We are not left to presume that the verdict was correct. Hall, availing of the temporary absence of Phelps and his wife on a visit to their child, in the spirit and with the hand of rapacity, took possession of the domicile and soil which the unsuspecting and confiding Phelps had acquired by the enterprise and privations of years and trusted would be kept inviolate to receive him on his return.’ Let it not be imagined that we will descend into the detail of the continued outrage inflicted. It will be enough to remark that he, in his own audacious words, reigned sole possessor of the usurped manor and premises, affecting all the power and vaunted hospitality of a successful marauder of the dark ages, until the deed was signed and delivered, and thereafter, until it pleased him to depart! He invited Phelps to the board and the hearth he had taken from him in his absence and with strong hand—a possession he declared he would retain at the cost of life and upon his own principles. He did retain it, until what is called a compromise of a doubtful right was extorted. The deed was given by the oppressed Phelps solely as an expedient, and the only available one, apart from superior force, in the then condition of the country, whereby to find on his own dominion a shelter for himself and family. We are not to decide according to the nerves or tears of a party; but we may be allowed to say that chivalry and outrage have never been regarded as affiliated. The agreement and bond of December 27, 1831, and the pretended deed of January 12, 1832, were alike extorted. The usurpation continued until in March following. We are reluctant to assert any principle containing the boundaries within which a transaction, in its incipiency tortious or void, may be validated by a subsequent deliberate act of the victim; for whenever the law sets up its definitions, the craft and cupidity of man too soon become prepared to fill up the picture, so as to escape its penalties It is sufficient in this case, after rendering due acknowledgment of the zeal and talent exhibited in the argument, to declare that what is primarily flagitious can only be cured by voluntary or adjudicated recompense. In manifold instances, what is begun properly but afterwards turned into enormity, or covin, becomes vicious from the beginning. The oppression here was one consisting of a series of trespasses and extending beyond the procurement of the conveyance. It was not so urged, but yet we consider Phelps as being harassed, pressed and overcome; not indeed by manual force, but still by a force equally lawless and more to be reprehended because of its effrontery and long continuance. It was whilst he was under this duress that the conveyance originated. Between the mockery of the agreement in which Hall pretended to relinquish his right—as if he had any to relinquish!—and the deed, where was the time or place to Phelps to repent or retract ? At no moment was he free to do so, for the incubus remained. We feel bound by a solemn sense of duty to admonish the communities of this Republic to discountenance by every peaceable and lawful means the repetition of such conduct, and to be at least assured that if it be re-enacted and brought into the judicial tribunals, it will be visited with the utmost measure of retributive and corrective justice.

2. It has been urged that the court below erred in charging the jury in this, that there might have been, according to the evidence, a compromise of a doubtful right, and the instructions were calculated to prevent a proper verdict on that ground. We have examined the evidence in vain to collect any such state of fact, as would have justified any reference by the court in its instructions in regard to the rule as to such a compromise. The charges refused, when connected with those given to the jury, were well calculated to fix the minds of the jury upon any and every possible ground of defense to the defendant. The court did, in effect, instruct them to find for him if they believed the deed grew out of such a compromise, provided it was on something more than a mere shadow of right on the part of Hall; and this we esteem as having been more in his favor than the court, from the evidence, was bound to give. It is true, as established by the books, that a compromise of a doubtful right will be sustained if the parties act on a full knowledge of the facts, for it is upon the doubt as to the right that they act, and the law favors what prevents litigation. This principle is in perfect harmony with the interesting doctrine that an injured party, whose loss or injury arises out of his act or agreement made when he was ignorant of his rights or mistook the law, may allege that ignorance or mistake as a ground of relief—if the adverse party can not in conscience retain the advantage he has gained—and if, too, the error or ignorance can be shown clearly by proof aliunde. The late Chancellor Kent and a few others have contravened this doctrine; but it stands supported by the current of the most celebrated jurists and judges. It does not, however, appear that there was in the transaction before us, any misapprehension of rights or of the laws; but on the contrary, its remarkable feature is a most willful and deliberate violation of the laws on the part of the defendant, and a full appreciation of the wrong by the plaintiff.

The ground on which the appellee’s counsel has treated the conveyance as invalid may be applied. If one receive from another a price for abstaining from the commission of an act which he was bound by law not to commit, he will be compelled to restore the price; or if he had only received a promise, then to release the obligor from it; it being esteemed very base to receive a price for doing what the law compelled him to do. 2 Partidas, 941; 2 Pothier, 28. This is sound morals; and the common law, though not to.be the.rule of decision in this case, holds the same principle for the conveyance has no shadow of a valid consideration to support it. If here Phelps had acted in ignorance of the law that bound Hall to restore the premises, and had acted under the name and solemnity even of a compromise, equity, which is derived from the civil law and the fountains of universal justice, would have relieved him. 2 Story’s Equity, 134.

3. Prescription is invoked to shield the defendant. The deed was procured on the 12th January, 1832, and the suit instituted on the 23d July, 1838, a period of more than six years. The conveyance was only an evidence or muniment of title to a part of the immovable Orozimbo league, and the suit is as well to cancel that as to be quieted in the possession of the whole league. It is therefore more analogous to the action to try titles than any other; and indeed the defendant’s title is directly put into controversy, so that the limitation of ten, instead of four or three years, seems most applicable. But under what system of jurisprudence will a court, when proceeding upon the principles of equity, apply to an equitable demand.the limitations of legal remedies, stricti juris? Statutes, or laws of prescription or limitation, are adopted in chancery by way of analogy, but yet under such rules and restrictions as that court deems compatible with equity, and hence in transaction of express trust, in such as originated in fraud and much more in those growing out of oppression, the bar is not allowed to intervene. It would be interesting to notice more in detail the civil and English chancery law upon these subjects. and the accordance of both system upon them; but it is not called for. The court considers it indispensable to notice the districted state of Texas from 1832 to 1835, and the revolution that occurred, as raising a sufficient ground to prevent the bar here invoked.

4. The last position is that conveyance was promised, and even if that promise had been made through force or fear, it was afterward performed, and so the conveyance will be supported. This would have been correct, if at the conveyance Phelps had acted not only in full knowledge of the facts and of his rights, and had been perfectly free to do or not to do what he did; but the record does not present him in that disenthralled position.

This cause coming to be heard on the transcript of the record herein in the District Court of Brazoria, and it being inspected and the arguments of counsel heard, because it seems to the court that there is no error, it is therefore ordered and decreed by the court here, that the decree of the court below be in all things affirmed; that the appellee recover of the appellant the costs by him in this behalf in this court expended, and that this affirmance be certified below for execution.

Affirmed.  