
    REESE et al. v. COBB.
    (Supreme Court of Texas.
    Nov. 20, 1912.)
    1. Trespass to Try Title (§ 6) — Title to Sustain.
    A plaintiff in trespass to try title must prove title in himself.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. § 6.]
    2. Towns (§ 35) — Property— Sale — Title.
    Under Rev. St. 1895, art. 587, giving towns power to buy and sell real property in the town limits, a town cannot give title to property not within its limits, even though the town as originally established included such property, and had power to sell it, where the town as a corporation had been dissolved by vote of its inhabitants, and was later established under general law with its present boundaries.
    [Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 63-68; Dec. Dig. § 35.]
    3. Statutes- (§ 167,) — Omitted Statutes— Force and Eeeect.
    A provision in act of 1858 (Laws 1857-58, c. 61), providing for incorporating towns, which has been omitted from each compilation for 1879 and 1895, cannot be given, force by the Supreme Court.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 242, 243; Dec. Dig. §, 167.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by .Zach Lamar Cobb against August Reese and others. From a judgment of the Civil Court of Appeals (135 S. W. 220) affirming a .judgment for plaintiff, defendants bring error.
    Reversed.
    Patterson, Buckler & Woodson, W. B. Brack, and J. A. Buckler, all of El Paso, for plaintiffs in error. Seymour Thurmond, of El Paso, for defendant in error.
    
      
       For other cases see same topic and section.NUMBER-in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

The facts as shown by the record are that on the 5th day of February, 1853 (Sp. Laws 1853, c. 6), the Legislature of the state of Texas enacted this law:

“Section 1. Be it enacted by the Legislature of the state of Texas, that the grant made to the people of Presidio de San Eli-zario in the year seventeen hundred and ninety, to the following described tract of land, to wit: Commencing on the Rio Grande at a point where the established line of division between the' towns of So-carro and San Elizario strikes said river for the northern boundary, and following said line to the hills bordering on the eastern bank of the river Viejo; thence running southeast along with said hills down the river Viejo, to a point at which said Rio Viejo empties into the Rio Grande; thence up said Rio Grande from the mouth of the Rio Viejo to the place of beginning, containing four leagues more or less, is here-, by fully recognized and confirmed.
“Sec. 2. That the Commissioner of the General Land Office be, and he is hereby authorized to issue a patent to the inhabitants of said town of Presidio de San Eli-zario,. to the above described tract of land; provided, that there are no evidences of conflicting claims for said tract of land on record in the General Land Office.”

A patent, was issued by the Commissioner of the General Land Office granting and releasing the .right and title of the land described in the act above copied to the inhabitants of the town of Presidio de San Elizario. The town of Eleceario (Elizario) wasi incorporated by act of the Legislature (Special Laws 1871, pp. . 83-99) with its boundaries described as set out above in the, act of 1853. Section 24 of the. act reads: “That the town council shall have the power, in the manner hereinafter specified, to grant or sell portions of'real .estate; the property of the said town of San Eleceario, to any of the following person or persons, and to no others: First, to actual settlers on said lands, wlio are citizens of the town of San Eleceario. Second, to any person or company for the erection of buildings to he used for mechanical or manufacturing purposes, or for the building of railroad depots or workshops; provided, that the land granted or sold shall not exceed the quantity to be actually covered by the erection of such buildings. Third, to any person or persons who may desire to become citizens of said town, and who shall become actual settlers on the lands sold or granted.”

The inhabitants of that town ignored the special charter of 1871, and attempted to organize under the general law for the incorporations of towns, etc., and while acting under that organization sold some of the lands. In 1891 the Legislature enacted a law (Acts 22d Leg. c. 4) with this preamble: “Whereas, the state of Texas granted by patent to inhabitants of the town of San Elizario in El Paso, a body of land, and the inhabitants of said town, for many years, ignored the special charter and organized in pursuance of the general incorporation laws, a municipal corporation, and subdivided the lands aforesaid into small parcels, and the corporation conveyed the same by deed, and said lands are now, in good faith held and owned by hundreds of persons most of whom have cultivated or improved the same; now therefore.” We also copy the first section: “Section 1. Re it enacted by the Legislature of the state of Texas: That all deeds to any part of the lands patented to inhabitants of the town of San Elizario, executed under the authority of said town while acting under the general incorporation laws of the state, are hereby declared valid to all intents and purposes as if the same had been executed under and in conformity with the special charter of said town.” In section 2 of said act is this proviso: “Provided that nothing in this act shall be construed as in any way acknowledging, acquiring or validating the claims of any person as against the claim of the University of Texas, or the claim of the state of Texas to any portion of the land covered or claimed to be covered by the San Elizario grant; provided further that no suit now pending or hereafter brought by or in behalf of the University of Texas shall be affected by anything in this act contained.” On March 23, 1891, the Legislature enacted the following: “Section 1. Be it enacted by the Legislature of the state of Texas: That an act entitled ‘An act to incorporate the town of San Elecerio in El Paso county,’ passed by the twelfth Legislature, approved 5th day of April, 1871, be and the same is hereby repealed.” Acts 22d Leg. c. 11.

In May, 1893, the town of San Elizario was again incorporated under the general law for the incorporation of towns, etc. The corporate limits were 4,000 varas by 4,800 varas, which included what had been known as San Elizario. By an election in 1897 that corporation was abolished. In November, 1906, the present town of San Elizario was incorporated under the general law for forming such corporations, but did not include the land in controversy. The boundaries of the town were given thus: One mile north from the plaza and one mile south from the plaza, one-half mile east from the plaza, and one-half mile west from the plaza. We copy from the opinion of the Court of Civil Appeals as follows: “It was admitted that there was no outstanding title to the land involved in this suit in the state of Texas. The present corporation conveyed this land to appellee Cobb on September 21, 1908. He also had procured a judgment of the district court of El Paso county for the land against said corporation. This last named item of evidence we think would not operate to pass title, if the incorporated town did not in fact have power to hold or dispose of the land, which is one of appellants’ contentions.” The case was submitted to the judge without a jury, and judgment was entered for Cobb.

It devolved upon Cobb, as plaintiff in the trial court, to produce evidence showing title in himself, and, if the evidence fails to establish such title, the judgment must be reversed.

We need go no further back in the history of the title than the act of the Fourth Legislature of this state, enacted in 1853 and copied in our statement. Whether the grant from Spain was valid or invalid that act passed the title of this state to “the inhabitants of Presidio San de Elizario.” The patent being issued, the title vested. Presidio San de Elizario was not a corporate body capable of holding real estate; therefore, the title vested in “the inhabitants.” But Cobb did not derive title from any one who received a patent from the state under that act. The municipal corporation created by the act of 1871 was by the twenty-fourth section empowered to sell land to actual settlers and others, but Cobb does not claim title under any purchaser from that corporation. Having repudiated the charter of 1871, the inhabitants attempted to create a corporation under the general law, and such pretended corporation sold some of the land, which sales were confirmed by the Legislature by an act which we have quoted. However, Cobb does not claim under any purchaser from that illegal body. The act of 1871, incorporating Elizario, having been repealed, thereby dissolving and abolishing that corporation, Cobb cannot and does not claim under any act of that body which was formed by the inhabitants in 1893 under the general law for incorporation of towns and cities and included the land in controversy, but it was dissolved in 1897 without having sold the land. Up to this time Cobb has acquired no right. In 1906, nine years after the abolition of the former corporations, some of the inhabitants of a portion of the territory of the grant organized a municipal corporation under the general law with limits of a mile by two miles, two square miles, which does not include the land in controversy. Cobb holds the title of that corporation, if it had any. How did it acquire the title is a pertinent question. The present corporation must have been organized under chapter 11 of the Revised Civil Statutes. 1 Batts, p. 266. The incorporators must all have lived within the limits of the new town, because no one could vote who did not reside therein. Article 582, R. S. Therefore, the inhabitants of San de Elizario, to whom the patent for the land was issued, who resided outside of the new corporation, had no voice in the formation of this corporation. Does it need to be asserted that the few could not appropriate the entire grant in this way? If the new corporation could appropriate this land, it could by the same act likewise have appropriated all land within the original grant which had not been sold. But the law under which the 1906 corporation was formed contains this provision: “Art. 587. When the entry mentioned in the preceding article has been made the town shall be vested with all the rights incident to such corporations under this chapter, and shall have power to sue and be sued, plead and be impleaded, and to hold and dispose of real and personal property; provided, such real property is situated within the limits of the corporation.” The land being outside the limits of the present corporation that body could not own or sell it, therefore Cobb could derive no title from the last and existing body which had none.

He finally rests his right upon a provision embraced in the act of 1858 (Laws 1857-58, c. 61), providing for incorporating towns, etc., which has been omitted from each compilation for 1879 and 1895. The argument is ingenious, but not convincing. It would require more power than this court possesses to resurrect a law which has been dead and buried for more than 30 years.

We have followed appellee’s exhaustive and ingenious presentation of his case carefully and diligently, and we conclude that he acquired no title to the land by his purchase from the existing corporation of San de Elizario. It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that judgment be entered that the appellee, Zaek Lamar Cobb, take- nothing by his suit, and the appellants go hence without day, and recover all costs of appellee.  