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*1 Case Reserved and Certified from Bastrop County.
The facts constituting the offense should be averred in the indictment with all 
convenient and reasonable certainty. [Ante, 455.]
It will generally be sufficient if the indictment follows the exact words of the 
statute in describing the offense, and it is never safe to depart from them. But 
where the statute uses a general term, it is not enough to employ that term only,
 but the pleader must also state the species, according to the truth of the case -- 
or where general expressions are used in the statute, it is not enough to employ those 
general words only, but the facts intended to be included and forbidden by them 
should be specified.
The appellant was indicted at the fall term, 1845, of Bastrop district court for 
vending spirituous liquors in a quantity of a quart and over without license first 
had and obtained.
There was a general demurrer to the indictment which was overruled and judgment 
entered against the defendant for $50 fine, but the judge conceiving that questions 
of law, novel and difficult, were presented in the case, had the same certified to 
the appellate court for revision.



Though it is generally sufficient to follow the language of the statute, and is never 
safe to depart from it, yet, if the statute use a generic term, it is not enough to 
employ that term only, but the pleader must also state the species according to the 
truth of the case.


An indictment for selling spirituous liquors without license should state at what 
house or establishment, or to whom, the vending took place, or some other fact 
tending to identify the transaction; otherwise the objection is fatal on demurrer.
Gillespie, for appellant.
The indictment is too general in its character, not alleging how or to whom the sale 
was made, so as to apprise the accused of what he was to answer or how to make his 
defense.
There was error in overruling the demurrer. It is too well settled to require argument 
or authority to prove that when a particular and special mode is pointed out for the 
enforcement of a penal statute, it must be strictly and literally pursued.
The act of 1843 (page 40) changed the remedy from a prosecution to a qui tam action. 
The act of 1845 (p. 95, sec. 3) provides that upon an indictment by a grand jury and 
a conviction by a petit jury the party shall be fined, etc. No such conviction was had 
in the case at bar.
Attorney General, contra.
No brief filed.


WHEELER, J.
*2 Burch was indicted under the statute for a violation of the law requiring the 
payment of license tax. 9 Stat. 95, 96, 107.
The offense is charged in the indictment in these words: "That Nelson Burch, of the 
county of Bastrop, in the county aforesaid, a retailer of merchandise, who vends 
spirituous liquors in quantities of a quart and over, did, on the first day of 
September in the year of our Lord, one thousand eight hundred and forty-five, in 
the county aforesaid, vend spirituous liquors in a quantity of a quart and over 
without license first had and obtained."
There was a demurrer to the indictment overruled, and the defendant "failing to 
make any further plea," judgment final was pronounced against him. But the judge,
 doubting as to the law of the case, reserved and certified it to this court for 
revision.
It is never necessary in an indictment to aver all the facts and circumstances 
attending the transaction with the greatest possible certainty, for that might 
render the law nugatory by requiring a particularity of proof which could seldom
 or never be attained. Yet the facts constituting the offense ought to be averred
 with all convenient and reasonable certainty. The extent and reason of the rule 
were considered briefly in Bush v. The Republic, lately decided, and need not be 
repeated. It will generally be sufficient if the indictment follow the exact words 
of the statute in describing the offense, and it is never safe to depart from them. 
But where the statute uses a generic term, it is not enough to employ that term only,
 but the pleader must also state the species according to the truth of the case. Arch.
 Cr. Pl. 48. Or where general expressions are used in the statute, it is not enough to 
employ those general words only, but the facts intended to be included and forbidden 
by them must also be specified. Where a statute, for instance, makes the malicious 
killing of cattle a felony, it is not enough in an indictment on the statute to 
charge the defendant with killing "cattle" generally, but the particular species 
of cattle must be stated. And where a statute makes it a crime for any person by 
any false pretense to obtain from another any money, etc., with intent to cheat 
or defraud any person, it is not sufficient to charge the offender with being 
guilty of "false pretenses" generally, but the particular pretenses must be set 
forth, according to the truth of the case, and also that the money, etc., obtained 
was the property of the person whom it was intended to defraud; who that person 
was, and from whom the money was so obtained. Id. 48, 275, 279, and authorities 
cited. We think the present indictment comes within reason of the rule, and the 
facts relied on, as constituting a violation of the law, ought to be specially 
averred; but it is not sufficient to aver generally that the defendant "did vend 
spirituous liquors in a quantity of a quart and over" without stating at what 
house or establishment or to whom the vending took place, or some other fact 
tending to identify the transaction; and that, though the objection may not have 
been available in arrest of judgment, yet it was fatal to the indictment on 
demurrer. Id. 49.
*3 As the defendant cannot again be put upon trial or indicted for this offense, 
it having been barred by lapse of time, it is not essential to consider the other
questions presented by the record. We are of opinion that the case reserved be 
remanded, with instructions that the judgment be set aside and the demurrer sustained.
Tex. 1846.
NELSON BURCH v. THE REPUBLIC
1 Tex. 608, 1846 WL 3665 (Tex.)
END OF DOCUMENT



==

*1 Appeal from Bastrop County. [FN1]


  FN1. This cause was tried before the Hon. R. T. Wheeler, associate justice of the 
supreme court, and Thomas J. Jennings, Esq., special associate justice, so constituted,
 in consequence of Chief Justice Hemphill and Associate Justice Lipscomb having 
previously been of counsel for the parties.


The doctrines in the case of The Heirs of Holliman v. Peebles, decided by this court
 at the present term (see 1 vol. Tex. p. 673), recognized and adopted as the law of 
this case. [1 Tex. 673; 10 Tex. 168; 22 Tex. 155.]
Lands granted to an individual as a colonist who did not establish his domicile in 
the country, or who, after having been domiciled, abandoned the country, were forfeited,
 and immediately reverted to the government.
To entitle another to a regrant of land thus forfeited, no inquest of office or other
 judicial proceeding or sentence was necessary under the land laws of Coahuila and 
Texas as interpreted by the rules prescribed by the civil law of Mexico and Spain.
In the year 1839, the appellant commenced a suit in the district court of Bastrop 
county against the appellee and the commissioner of the general land office by filing 
a petition, the substantial allegations of which are in the following words:
"In the month of April, 1835, your petitioner arrived in Texas and became a colonist 
and a married man, entitled to one league and labor of land as his headright, and on 
the 18th day of January, 1838, your petitioner applied for and received from the board 
of land commissioners of Matagorda county, in said republic, his certificate for said 
league and labor, in conformity with law, etc. That afterwards, to wit, in February, 
1838, your petitioner located a part of his headright secured by said certificate, to 
wit, one league thereof, on a certain tract or parcel of land, situated and being in 
said county of Bastrop, and known and distinguished on the map of said county as league 
number one (1), fronting on the San Antonio road, 5,000 varas, and on the east margin 
of the Rio Guadaloupe; that said location was duly entered in the office of the county 
surveyor of said county of Bastrop, in the name of your petitioner, and the field notes 
thereof recorded in his books; that your petitioner paid all government dues on said 
land, and caused the receipt of said payment to be forwarded, with the field notes of
 the survey of said league, to the commissioner of the general land office, by said 
surveyor. Your petitioner would further represent that the commissioner of the general 
land office returned said field notes to said county surveyor, and refused to issue a 
patent to your petitioner, because it appears that a deed of the following description,
 to wit, a deed executed by Talbot Chambers, as commissioner of Milam's colony, in the 
spring of the year 1835, to one Henry Brown for league number (1) one, fronting on the 
San Antonio road and Rio Guadaloupe (being the same league located by your petitioner 
as aforesaid), is on file in the general land office, and that no judicial decision by
 a court of competent jurisdiction had declared said deed void and null. Your petitioner
 further showeth that the said deed ought not and does not, in law and equity, bar your 
petitioner's just claim to said league, and that the said Brown ought not to hold said 
land by virtue of said deed thereof, in preference to your petitioner's best right: For,
 that the said Henry Brown, the grantee of said land, was not at the time of the 
execution of said deed, or at any time previous or subsequent thereto, a colonist or 
a citizen of the state of Coahuila and Texas; that the said Brown did not then, or 
at any other time, nor never has resided in Texas; but your petitioner avers that the
 said Brown came into Texas at the time aforesaid, to wit, the spring of the year 1835,
 and departed therefrom in a few days, to wit, fifteen days from the time of his said 
coming, with the intention of not returning, and that in fact your petitioner says the
 said Brown never has returned, but is now a citizen of the United States of North
 America, and owes and pays allegiance to the government thereof, and is and always
 has been, in fact, in reference to the government of Mexico, the state of Coahuila 
and Texas and the republic of Texas, an alien. And your petitioner by leave of the 
court first had and obtained, and by way of amendment alleges that the said Henry 
Brown, at the time the aforesaid deed or grant was made to him by Talbot Chambers, 
commissioner as aforesaid, falsely and fraudulently represented, and caused himself
 to be falsely and fraudulently represented to said commissioner as possessing the 
necessary qualifications and requisites to be admitted as a colonist, and to be 
entitled as a colonist and head of a family to a league of land. Whereas, your 
petitioner alleges that the said representations were wholly untrue and fraudulent, 
and that the said Henry Brown had neither wife, child, servant or any other person 
under his charge to constitute a family at the time of the aforesaid grant in the 
spring of 1835, nor at any time from the date of said grant to this present time. 
"Wherefore" (after a prayer for proper steps to bring the commissioner and Brown 
into court to answer, etc., the petitioner proceeds) "your petitioner further prays 
that your honor will grant the writ of mandamus directed to the commissioner of the 
general land office, requiring and commanding him to make out and issue to your 
petitioner a patent to said league of land, and for general relief," etc.
*2 The record then recites a written acknowledgment of the service of "the petition 
and writ in this case," signed by John P. Borden, commissioner of the general land 
office, but contains no answer on his part. At the spring term, 1840, an answer was
 filed on the part of the defendant, Brown, in these words:
"The defendant, by his curator, says that the facts set forth in the plaintiff's p
etition are not sufficient in law to have and maintain his aforesaid suit. And this
 he is ready to verify. Wherefore he prays judgment, etc.
  
(Signed)  J. W. BUNTON,       
          Curator pro Def't." 
  
The action and judgment of the district court are exhibited by the record, in the 
following entry:
"This day came the plaintiff, A. C. Horton, by his attorney, and the defendant by his 
curator, Bunton, and said curator admits the facts alleged in the said plaintiff's 
petition, but demurs to the same as insufficient in law; whereupon it was considered 
by the court that the demurrer be sustained, and judgment be entered for the defendant.
 But the court considering the points raised in the case as novel and difficult, it 
was ordered that they be reserved for the decision of the supreme court. Whereupon it 
is considered by the court that judgment be rendered in favor of defendant, and the 
proceedings had in this case be certified to the supreme court as presenting questions
 of novelty and doubt."



Lands granted to an individual as a colonist, who did not establish his domicile in 
the country, or who, after having been domiciled, abandoned the country, were forfeited,
 and immediately reverted to the government.


Where lands were granted to an individual as a colonist, and were forfeited to the 
government by his failure to establish his domicile in the country, or by his 
abandonment thereof, no inquest of office or judicial proceeding or sentence 
was necessary, under the land laws of Coahuila and Texas, as interpreted by the 
civil law of Mexico and Spain, to entitle another to a regrant of land thus 
forfeited.


A. applied for a writ of mandamus against a commissioner to compel him to issue 
patents for certain lands which he had located, and he made B. a party to his 
petition, who, it was alleged, had located the lands, but had never acquired a 
domicile in Texas. B. demurred, and it was held that, as B. had never acquired 
a domicile in the state, his title under the colonization law of the state of 
Coahuila and Texas ceased, and reverted immediately to the state, and that no 
inquest of office or other judicial proceeding was necessary to entitle another 
to a regrant of the same lands under the laws of the same state.
Gillespie, for appellant.
*3 The matters presented by the record in this case are few.
It shows that in the year 1835, Brown procured a deed to a league of land, the 
now subject of controversy, from the commissioner of Milam's colony.
In the year 1838, Horton entered his headright certificate on the same land, took 
all the preliminary steps to obtaining a patent, and had the field notes returned
 to the general land office for that purpose. The commissioner returned them to 
the surveyor's office, with the reason for his refusing a patent to Horton for 
the land described by them, "that it was upon and included the land claimed by 
said Brown in Milam's colony."
Horton then filed his petition or bill in the district court where the lands lay, 
alleging that the deed to Brown was procured by false and fraudulent representations;
 that in truth and in fact he, said Brown, was never entitled to land as a colonist; 
that he was merely a visitor to the country and left and abandoned the same a few 
days after he procured the deed to the land. Horton insists in his said bill that 
the deed to Brown was and is a nullity; that nothing passed to him by said deed, 
and consequently the land claimed by it remained vacant and was then liable to his 
location.
The commissioner general is made a party and the prayer is, that the title of Brown
 be set aside and a patent issued to him, Horton.
Brown appeared by his counsel, and filed a general demurrer, intending thereby to 
admit all the facts alleged by Horton as true, which was so considered by the court, as appears by the record.


The demurrer was sustained, from which Horton appealed.
The appellant insists that the court erred in sustaining the demurrer.
That the title set up by Brown, having been obtained by fraud, was void and null; 
that he took nothing under a deed procured by his own fraudulent devices, and 
consequently the appellant, who had a claim upon the government, had a right to 
locate any lands that had not been otherwise lawfully appropriated. It is the 
policy of the law to make it the interest of all persons to investigate and 
suppress frauds. It is their interest to take care of the public good.
By all law writers, fraud has ever been held so odious as to vitiate and nullify
 everything that it touches or comes in contact with. It will vitiate and destroy 
the most solemn proceedings of courts of record. 2 Stark. Ev. 339- 40; 2 Coke, p. 80, 
note 3; 2 Bl. Com. 286-7; 3 Cruise D. 47; Story's Conf. 499 and note; 1 Johns. Ch. 405;
1 Vesey, 120, 284-9; Barwick's case, 3 Coke, 94. A patent obtained by fraud is utterly 
void. 2 How. (U. S.) 581; 3 Ala. 47-9.
I would particularly press on the consideration of the court, the reasoning of the great
 Coke in the case referred to. Human nature has not changed since his day.
*4 The officer of the government for the distribution of public lands was intrusted with 
particular and special duties. If he was imposed on or deceived in the issuing of a title,
 in fraud of the law, it would be contrary to law, and of course null and void, as much 
as if a forged deed was attempted to be forced on the country; for whatever is done in
 fraud of the law is done in violation thereof. 2 Pet. Dig. 356; 4 U. S. Con. 71.
There is no difference as to the effect on the public; there is none as to the morality
 of the act. And if we apply to the principle settled by the supreme court of the 
United States, no right through Brown's own fraud could vest in him, "those who came 
in under a void grant can acquire nothing." 7 Pet. 231. Same doctrine in Legate's 
case, 5 Coke, 110; 2 Bl. Com. 394; Bac. Abr. tit. Void and Voidable, 337; Cowp. 434; 
3 J. C. R. 481; 3 Wend. 411; 1 Fonb. Eq. 122, section 8 and notes; Stoddard v. 
Chambers, 2 How. U. S. 318. Same doctrine held in Louisiana reports, that fraudulent 
contracts are void ab initio. 3 Louisiana Cond. 477; Id. Benj. and Slidell's Dig. 274.
 This principle seems to be universal.
In the New Pandect of Roman Civil Law, page 526, this principle is laid down: "That 
if a contract is procured and made by fraudulent devices, it is absolutely null and 
void. And particularly when the contract is with the prince." See also Puffendorf,
 281 and notes.
Story says fraud is more odious than force. Story Eq. sec. 186. According to this 
Brown stood in no better attitude before the court than a robber.
In 2 Vesey, Jr., this principle is laid down: "That a void deed having passed nothing, 
a reconveyance is unnecessary, page 294;" Id. 2 Johns. Ch. 512; 4 Johns. 597; 8 Ves.,
 Jr., 283; 4 Phil. 88; Rob. 525.
When public utility is concerned, fraud vitiates any transaction which in its effect
 would tend to public mischief. Public Utility, Rob. 538; Hovenden, 13.
In 1 White, 304-6, it is stated that a sentence against law and justice is absolutely
 null and void, and there is no necessity of any other proceeding to set it aside. Id.
 244, Fraud on Governments.
It was the policy and object of the Mexican government at the time of the pretended 
emanation of Brown's title, to settle the country with actual cultivators of the soil;
 as is most conclusive from a mere glance over the numerous ordinances, decrees, etc.,
 passed by her legislature on the subject of settling her wilderness territory.
Such has been the constant object of the Spanish colonial governments since the 
establishment of the laws of the Indies. See White's Recop. 48-54. A like system 
with the same object in view to that adopted by Mexico, and subsequently by the 
states of Coahuila and Texas, was long in force in the now states of Louisiana 
and Florida. And as many cases arising therefrom have subsequently been adjudicated 
in the state and United States courts, we may well look to their determination of 
like questions for some light on this subject.
*5 As to the mode in Louisiana, see White v. Wells, 5 Martin, 662; Fletus v. The 
Mayor of New Orleans, 1 N. S. 438; 2 White, 229-30, 280-5.
The law expressly stipulates the terms and conditions upon which the colonists can
 acquire a legal title. They must conform to the law; the terms and conditions are
 precedent and must be complied with. Kingley's case and the Heirs of Mills, 12 Pet. 
215, 477, 485; White, 49, 52, 132, 284, 88, 258, 296; 1 La. Cond. 128; 4 Id. 431; 3 
Id. 446; 2 Lou. 507; 6 Pet. 747.
The mass of Florida cases can be ranged under three classes.
Absolute grants in consideration of services already performed or passed, as in 
Perchman's case, 7 Pet. 51; 2 White, 280; 2 Pet. Dig. 311-17.
Next, grants for important services and considerations already passed with future 
stipulations and promises by the grantee, as in the Arredondo case, 6 Pet. 710; 
10 Id. 306-8.
Lastly, the great mass were, like those in Coahuila and Texas, concessions or 
incipient grants permitting a present possession, and securing a future absolute 
or fee simple right, on certain conditions prefixed to the grant, always having 
in view the settlement and improvement of the country; which considerations were
 as essential to be performed as the payment of money to the country. 12 Pet. 
477-85; 14 Id. 340; 15 Id. 224 and 76; 10 Id. 313; 9 Id. 168; 2 White, 289-90, 
386.
Although in Seton's case, 10 Pet. 309, and in Sybold's case, their claims were 
judged valid on the doctrine of cy pres compliance; they having proved they made 
repeated efforts to comply and were prevented. The same principle contained in 
Huidekoper's Lessee v. Douglass, 1 U. S. Cond. 446.
Such, also, was the law in the Indies, and if not complied with they were taken
 back and given to another. 2 White, 62, 64, 71, 300, 301; Strother v. Lucas, 
12 Pet. 441, etc.
By compliance, they received an absolute grant or royal title. 2 White, 283.
Brown, having received the deed with the conditions thereunto annexed, during 
the existence of the civil law, it may be well to see what was its import. 1 
Part. 465. It is laid down as the nature of a condition, that if accomplished, 
it confirms the contract; if not, the contract is invalid. The common law 
definition, as found in 4th Bac. Abr. 165-6, would not be much more favorable.
 We look on the matter in this way: Brown's title is the evidence of the contract 
between him and the government. The circumstance of his having a deed cannot place
 him in any better situation than an emigrant who has arrived in the colony with 
his family, with all the qualifications requisite by law, received and admitted by 
the empresario and commissioner; his quota of land surveyed for him, and he put in 
actual possession. Could the party last designated claim the absolute title or fee 
without showing a compliance on his part? Then can Brown? His title is only prima 
facie evidence of the existence of the facts which entitle him to the land. This 
presumption is destroyed by the facts admitted.
*6 The officers of the government, who made out the title for Brown, were the attorneys 
in fact, with the law for their guide. Whatever the law has given passed, and no more;
 beyond the law, no public officer could extend its operation.
If the law impose a condition precedent to obtaining a right, without the performance 
of that condition, no right could ever vest. The documents that were given him, to 
serve as a title, would be as blank paper, and it would be idle to speak of a forfeiture
 or anything else, to divest what had never vested.
At the common law, future conditions in a grant must be performed, and must be so 
found. 8 Term, 56; 2 Bl. Com. 154, 107, 86; 5 Coke, 94, Barwick's case, 6 Id. 56; 
2 Cruise's Dig. 3, 32.
When an act of forfeiture takes place by a man's own act, any person, even a 
stranger, may enter. Pennant's case, 3 Coke, 65; Wilson v. Mason, 1 U. S. Cond. 251;
 5 Hay. 263; 2 Term, 749.
Having, then, established that the deed of Brown is, and was from the beginning, null
 and void, I maintain that the plaintiff had the right so to consider it; and that 
he has pursued the proper course to establish his own claim. He has shown that he 
held a good and valid certificate for lands, which the government promised to 
satisfy out of her public domain. This gave to the appellant the right to look 
into the state and character of the funds to which he had to look for payment.
 The claim of Brown can certainly stand in no better situation against the 
government of Texas than it did against that of Coahuila and Texas.
If it was void as to them, it surely will be as to the republic of Texas.
If, then, the pretended claim set up by Brown was void as against the republic 
of Texas, the means by which it was obtained from that government may be inquired 
into by any person having a just claim against the common fund, thus fraudulently
 appropriated to his prejudice. In the case of Polk's Lessee v. Hill, Wendell et 
al., 3 U. S. Cond., 291, on this subject, the supreme court of the United States 
say, that it would be extremely unreasonable to avoid a grant for irregularities of 
the officers of government, whose duty it is to supervise all the proceedings from 
the commencement to the consummation. But that there are some things so essential to
 the validity of such a contract that the great principles of justice and of law 
would be violated, did there not exist some tribunal to which an injured party might
 apply, in which the means by which an elder title was required might be examined 
into. Id. 5 Coke, Legate's case, 111, 115.
What other means pointed and allowed by our laws could the appellant have pursued? 
None other. By the common law, the party who conceived himself aggrieved could avail 
himself of the invalidity of the same in any shape or form of action in which it 
might be presented. In ejectment most certainly. In the courts of the United States 
some contrariety of opinion prevails, but that he could do so in equity, all agree.
 3 U. S. Cond. 291; Term, 214, etc.
*7 Our proceeding is in the nature of a bill in equity. We set out our claim; we show
 the interference or prevention of its satisfaction; we ask that the intervening 
claim be annulled, and that the officers of government be compelled to allow and 
consummate ours,--all the qualities of a bill in chancery.
But we further insist that should the court not be inclined to treat the claim of 
appellee as a nullity absolute, that the record in this case shows that the appellee
 has no right or claim to the land in dispute. It shows that he was a colonist and 
received his title papers, now insisted on as such. It is important to understand 
the character of the claim he held.
It was under the law and must conform to it. Was it an absolute conveyance by the 
government of the lands? A title to the property in fee? or was it an agreement 
for such, under conditions and limitations, both in the law and in the deed? That
 it was the latter is most manifest, when we consider the object of the donation 
and policy of the government. Mexico was endeavoring to settle a wilderness. The 
most practicable plan she could adopt was the empresario system. She gave large 
boons to empresarios and held out great inducements to the actual settlers. She 
said in emphatic language to the empresario, if you fail in your contract, if 
you introduce ninety-nine settlers and not the hundred, the whole contract shall
 be absolutely null. Col. Law, 1825, sec. 8.
It cannot be supposed that she would be more favorably inclined to the colonists 
than to the empresarios themselves. If the colonists fail on their part, the objects
 of the government are subverted.
But they did not receive a fee simple title; they only received a conditional one, 
that was to serve them as a title. Instructions, 1827, secs. 7 and 8.
These could only be considered as merely conditional fees. No entry or other proceeding
 was necessary to divest the imperfect estate out of the colonist who failed to
 comply with conditions expressed in the grant, or the law under which he held.
 Noncompliance, ipso facto, revested the estate in the original grantor, the 
government.
As the case put in the first instance, of Coke, 218, where land was granted to a
 man, that if in five years he pay forty marks he should have a fee, but if not,
 his estate to continue five years; on failure no entry is necessary, the estate
 is gone. Id. 2 Cruise, 38-41, note.
The act of law, without office found, would cast the estate on the grantor. 3 Bl.
 Com. 256-7; 4 Bacon, 416, 165-6.
Wherever the law declares a forfeiture, or that a deed or grant obtained under 
particular circumstances void, there is no necessity of any direct judgment or 
decree to render it a nullity. 2 Term, 568, 515; 1 Stuart, 18; 4 Porter, 141; 5 
Id. 182; 8 Id. 325; 7 Mart. 341; 5 Id. 54.
*8 And any circumstances of invalidity may be shown, in any possible action, before
 the repeal of a conditional grant. 1 Coke, 52; 2 Id. 17, 33, 54; 5 Id. 94; 6 Id. 
56; 10 Id. 67, 109.
Webb, for the appellee, presented the following propositions, as being sustained by 
the record and the law:
1st. The land in controversy was granted to Brown, by an officer of the government
 having full power and authority to make the grant. The authority of Commissioner 
Talbot Chambers is not denied. Arredondo's case, 6 Pet. 727-8- 730.
2d. The terms used to characterize the grant import that "the right, title, legal 
estate, property and ownership" of the land had passed from the grantor to the 
grantee. The grant must be taken as an absolute and unconditional one, unless 
the contrary be shown. Id. 6 Pet. 744.
3d. "Grant" is a generic term. It may be applied in its lowest sense to a bare 
permission to do a thing, as in the case of Kingsley, 12 Pet. 476. But when 
applied to the conveyance of land as a technical term, it is then one of the 
strongest words in the English language to show that the conveyance was an 
absolute and unconditional one.
4th. The court will never infer or imply that there are conditions to a grant
 which do not appear on the face, unless the law under which the grant is made 
imposes them. 10 Pet. 306.
5th. The court will never presume fraud in a transaction which can be ascribed 
to an honest motive. No number of frauds which a man may have perpetrated through
 the course of his life will vitiate or affect a transaction not directly 
connected or tainted with them. Fraud, to affect an act, must attach directly
 to the act. 6 Pet. 716; 1 Domat, 257; Pothier on Obl. 24, Nos. 31, 32.
6th. If there be a law, under which the grant could have been made, without
 its being affected with the fraud alleged in the petition, the court will 
suppose that law to have been the one under which it was made, until the 
contrary is shown. 6 Pet. 716.
7th. If Brown were a purchaser under the law of 1834, p. 247, no allegation of
 fraud contained in Horton's petition could be made to apply to his grant.
8th. The fact that the title to Brown was made by Talbot Chambers, the ""commissioner
 of Milam's colony," does not repeal the presumption that the land was purchased by 
Brown under the law of 1834, because there is nothing to show that he was not either
 a "general" or "subordinate" commissioner, which that law authorized. He may have 
been a commissioner of Milam's colony, and also a commissioner of Texas, to convey 
lands sold under this law; there is nothing incompatible in the two appointments. 
If he were a subordinate commissioner, his duties may have been confined to "Milam's 
colony," as by the law, the district in which he exercised his functions was to be 
limited.
*9 9th. If an officer of the government, acknowledged to be so, do an act virtute 
officii, the act will be considered as within the scope and power of his authority, 
until the contrary be shown. The onus probandi lies on the party denying the 
validity of the act. 6 Pet. 729.
10th. If an act be done by an officer whose duty it is to judge of the performance 
and rectitude of the steps which are to precede it, the doing of the act is a 
determination and judgment that the precedent steps have been performed, and were 
performed in good faith. The act is res adjudicata of the preliminary and precedent
 steps. 2 U. S. Cond. 291.
11th. If this were an absolute and unconditional grant of the land to Brown (and 
the terms employed to characterize the grant import it to have been such), the fee 
to the land was vested in the grantee immediately upon the execution of the grant,
 and the grant was indefeasible.
12th. If Brown acquired this land by purchase under the law of 1834, the only 
condition which could have attached to the grant was the one of settling in the 
state within twelve months. This was a condition in law and subsequent to the grant.
 Laws C. and T. p. 248, art. 9.
13th. The conditions of taking the oath to support the constitution and laws, etc.,
 and of becoming naturalized in one year, were conditions precedent to the grant and 
must have been performed before the grant could have been made. The making of the 
grant, therefore, is conclusive proof that these precedent conditions have been 
performed. Laws C. and T. p. 248, art. 8.
14th. The only condition which followed the land in the hands of Brown, to wit: 
that of settling in the state within twelve months after the grant was made, being 
one to be performed subsequent to the grant, the fee vested in the grantee eo instanti,
 upon the execution of the grant, and it being a condition reserved for the benefit 
of the grantor, he alone could inquire into its performance or non-performance -- 
third persons had nothing to do with it. 4 Kent, 122, 125-8; 2 Bl. Com. 154-6; also 
p. 110, notes 15 and 16; 1 Pet. Dig. 528, secs. 20, 26.
15th. If the fee vested in Brown upon the execution of the grant, and the grantor 
sought to divest and reclaim it for the non-performance of a subsequent condition 
running with the land, he could only do it by a judicial inquiry and investigation 
in the nature of an inquest of office, showing that the subsequent condition had 
not been performed. Until "office found," the grantor himself could not enter upon 
or take possession of the land. This principle is recognized both by the common 
and civil law. 3 Jacob, 454-5; 3 Bl. Com. 257; 2 Pet. Dig. 328, secs. 18, 19, 20;
 Id. 312, secs. 9, 10; 2 Pet. Con. 622-33; 9 Pet. 742-3; 1 Munf. 134; 2 White's 
Recop. p. 52, Nos. 84, 87. The six questions of Gaudo and the answer of Saavedra 
thereto, 2 White's Recop. 274, 282. Argument in Revant's claim, 1 White's Recop. 
723; 6 Pet. 747; 9 Id. 743; 2 Domat, 372, sec. 4.
*10 16th. It is of no consequence whether the fee which vested in Brown was a fee
 simple, or fee conditional was the fee, and if it had passed, it would have to be
 reclaimed, before it could be reinvested in the grantor.
17th. If Brown obtained this land as "a colonist," or "head of a family," and the 
fraud charged in the petition attached to the grant, still no person but the grantor
 would have a right to set aside the grant for the fraud. If he was content to submit
 to it, no third person would have a right to complain or inquire into it. If A. 
cheats B. out of his horse or land, C. would have no right to sue for or take
possession of either.
The former rights of Mexico in the land, having by the revolution inured to Texas,
 the government of Texas alone could inquire into the terms upon which the grant was 
made, and seek its forfeiture or annul it, for the fraud which was practiced in 
obtaining it.

It is true the government might authorize others to make the inquiry, but until the 
authority be given, no third person could interfere. 5 Bacon, 337, letter F.
18th. A grant fraudulently obtained is voidable, and not void. And none but the 
grantor or his heirs could avoid it. 5 Bac. Abr. old ed. p. 337, letters E and F,
 tit. Void and Voidable; Pennant's case, 2 Coke, part 3, p. 65.
19th. If a grant of land were obtained by fraud, and before the grantor avoided it,
 the land was conveyed to a third person for a valuable consideration, who was an
 innocent purchaser without notice of the fraud, the land could not be reclaimed from 
him; and this shows the grant in the first instance to be voidable only.
20th. To avoid a voidable grant, a judicial inquiry and decision is as necessary, as
 it is to reclaim a fee which has vested in the grantee, for the nonperformance of 
subsequent conditions; and none but the grantor or his heirs can institute that 
inquiry.
21st. There is but one possible case in which a third party could inquire into the 
validity of a grant of this kind, and impeach it for fraud. And that is, where the
 grant affected his pre-existing rights; and it will not be pretended in this 
case that Horton had any right to the land in controversy when the deed was made
 to Brown. 2 Bibb, 134; 1 Bibb, 22, 229.
22d. The commissioner, Chambers, was an officer appointed by the government to
 determine who were entitled to lands as "colonists," or "heads of families." His 
duties in this respect were judicial, and his decision upon the application of a 
party for lands was a judgment which determined that question. Can this judgment
 be inquired into collaterally? I think not. He certainly had jurisdiction over 
the subject matter. 2 Day, 30; 1 Pickering, 439; 3 Johns. 168; Voorhees v. United 
States Bank, 10 Peters, 443; Grignon's Lessee v. Astor et al. 2 How. U. S. 319; 2
 Bibb, 487; 3 Bibb, 137; Id. 426; 7 Dana, 141; 4 Yerg. 525.
*11 23d. Articles 26, 27, 28, and 30 of the colonization law of 1825, p. 20; and 
arts. 30, 31, 32, and 33, of the colonization law of 1832, p. 193; and arts. 4, 
8, and 9, of the commissioners' instructions, p. 71, all show that the colonists 
received full titles to their land in the first instance; the fee therefore vested
 in them subject to be divested upon the nonperformance of the subsequent 
conditions. Laws Coahuila and Texas.
24th. How could the grantees dispose of their land as authorized by arts. 27 and
 28 of the colonization law of 1825, and by art. 31 of the colonization law of 1832,
 if the fee was not vested in them?
25th. Articles 26 and 30 of the colonization law of 1825, and art. 33 of the 
colonization law of 1832, show that an inquiry and decision is necessary to divest
 the colonists of their lands previously acquired. How is the political authority 
to proceed to take back their lands and titles under article 26, unless it does 
something? And what is that something to be done? And how is it to be ascertained 
under articles 30 and 33, that the colonists did not alienate their lands according 
to the law, unless the matter was inquired into, by some tribunal authorized to make
 the inquiry? This inquiry is an inquest of office. The decision upon it is,
 "office found."
Again, how could the political authority "proceed to take back the land and titles" 
of the colonists unless the colonists had previously obtained their land and titles?

26th. Article 15 of colonization law of 1825 presents an illustration of a condition
 precedent to the grant, and shows the difference between that and a condition 
subsequent as defined by art. 26. Unmarried men are to receive only a fourth as much 
as married men, but if they marry, the quantity shall be made up. Their right to this
 additional quantity depends upon the performance of this condition precedent of 
marrying, and until they do marry, their right does not vest, but still it exists. 
But their right to the fourth vests immediately. They receive the land, and their 
titles for it.
27th. If there was any law which authorized private individuals to hunt up land that
 ought to be forfeited for a noncompliance with subsequent conditions, or because 
the grants were obtained by fraudulent representations; and to denounce them and 
obtain a decree of forfeiture, and thereby obtain a grant to themselves of the same 
land, then the appellant might have instituted an inquiry as to the mode by which 
Brown obtained his land. But there is no law giving any such power or authority; 
on the contrary, it is made the duty of the "political authorities," or agents of
 the government, alone to do it. 5 Coke, 109.
28th. If the grants made to the colonists, or purchasers of land under the government
 of Coahuila and Texas, were permissions to go upon the land to do certain specified 
acts, as in Kingsley's and all that class of the Florida cases, then there would be 
a good reason for saying that they were conditions precedent, and that a title to the
 land had to be made after the conditions were performed. But it is the first time 
I have heard it asserted that all the titles made to the colonists in Texas had to be 
renewed or confirmed after the expiration of six years from the time they received
 their grants, and upon their showing that they had performed all the conditions 
required by law. If this proposition were true, then there is not a good Mexican 
title in Texas, for none of them have been confirmed in this way. 12 Pet. 476, 215.

*12 29th. The Mexican titles in Texas are not mere concessions. They are like the
 grant in Arredondo's case, absolute and vesting the fee eo instanti in the grantee 
upon making the grant, having condition, however, running with them, upon the 
nonperformance of which, the grant may be opened and the fee divested, if the 
grantor think proper to reclaim it. 6 Pet.
30th. There is, besides, this broad distinction between all the Florida cases and
 the present one. There the parties were seeking to establish their grants. They 
voluntarily went before the courts, to allege and show that their grants were 
honestly obtained, and that they had performed all that was required of them by 
law to perfect them. The onus probandi was upon them. But here the grantees have
 never been called upon by any law or regulation of the government to show that 
their titles were perfect and all the conditions performed. Had Texas after her 
revolution thought proper to subject them to this ordeal, they would then have
 had to do what was done in Florida, show that their titles were good. But Texas
 has required nothing of the sort, and no third person has a right to do it, or 
to interfere in the matter.
After stating the facts of this case, the opinion of the court was delivered by
 THOMAS J. JENNINGS, Esq., special associate justice, as follows:
After this cause was argued in a manner manifesting great ability and research,
 and submitted to us for consideration, the opinion of the court was delivered 
by the chief justice in the case of The Heirs of Kinchen Holliman v. Robert 
Peebles, 1 Tex. 673. As we fully concur in the reasoning and conclusion of the 
court in that case, that opinion turning, as it does, upon facts which are of 
like import in both cases, but which are even more fully exhibited and definitely 
ascertained in the record before us than in that case, is decisive of this cause. 
The doctrine advanced and fully sustained by argument and authority in that opinion,
 when applied to this case, decides that the defendant, by not in fact fixing his 
domicile in Texas, and by admitting that he never intended to do so; or, if he ever
 had his domicile in this country, by transferring it to a foreign country, with a 
declared and admitted intention of never returning; or, in other words, by abandoning 
the country, would have forfeited his title under the colonization law under which
 he claimed, and the land in controversy would have immediately reverted to the 
government, even if the defendant had, previously to such abandonment, attained the
 status, by acquiring the qualifications, of a citizen, and performed the condition 
of cultivation imposed by the law of his grant.
2. And that to entitle another to a regrant of land thus forfeited and reannexed
 to the public domain, under the land laws of Coahuila and Texas, as interpreted 
by the rules prescribed by the civil law of Mexico and Spain, no inquest of office,
 or other judicial proceeding or sentence, was necessary.
*13 Tested by these rules the defendant, upon the state of facts presented by the 
record, had no valid title of any grade to the land in controversy, when the petitioner
 applied for a patent for the same, and the claim of the defendant constituted no legal
 obstacle to the success of the petitioner in that application. We are, therefore, of
 opinion that the judgment of the district court ought to be reversed; but we are asked 
to go further and give such judgment as the district court ought to have given, upon
 the facts and admissions presented by the record.
The authority of Mr. Bunton to represent the defendant in the conduct of this cause 
appears to have been fully recognized in the court below, and has not been called in
 question here. The fact that a general demurrer to the petition had been filed by 
him shows that he was not unmindful of the difference, in legal effect, between "the 
implied admission for the sake of argument" of the truth of facts, which that plea 
imports, and the express and positive admission of "the facts alleged in said 
plaintiff's petition," stated in the entry of the judgment of the court to have
 been made by him in the name of the defendant. It may be urged that the statement
 of this admission and what immediately follows it is but an awkward entry of the 
action of the court upon the demurrer. This may possible be so, but we can only know
 the grounds upon which the court proceeded in rendering its judgment from the language 
of that part of the record which purports to state them. And that language, in this 
instance, we think, imports that this cause was submitted to the court for decision 
upon the admitted truth of the facts stated in the petition. And this opinion is 
fortified by a stipulation in an agreement signed by the counsel of both parties 
(contained in the record) "that the pleadings in the case shall be sent up to the
 supreme court for adjudication and decision, without any other statement of facts
accompanying the record." Now there was no evidence offered in the case, as the 
manner of proceeding indicated by the entire record shows, and what can the phrase, 
"other statement of facts," be intended to have its contrasting reference to, if 
not to the "statement of facts" contained in the petition (a part of the pleadings),
 and verified by the defendant's admission? Wherefore, it is ordered, adjudged and 
decreed that a judgment of the district court be reversed, and that the mandamus 
issue in accordance with the prayer of the petitioner, on payment of all costs by
 appellant.
Tex. 1847.
A. C. HORTON v. HENRY BROWN
2 Tex. 78, 1847 WL 3509 (Tex.)
END OF DOCUMENT



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*1 Appeal from Bastrop County.
In trials for minor offenses and in civil causes, the separation of the jury without
 the permission of the court, before rendering their verdict, will not, of itself, 
vitiate the verdict; though it is a misdemeanor for which the jurors may be punished.
 An application for a new trial on such grounds is invariably denied where no injury 
has ensued. [4 Tex. 89.]
The appellant was convicted of playing at cards at the fall term of the district court, 
1848.
The defendant moved for a new trial on the ground of the misconduct of a juror; and, 
in support of his motion, read the affidavit of one Wm. R. Cannon, who was also examined
 on the application, and who stated, in substance, that he was the bailiff in charge of 
the jury; that he left them in charge of the sheriff, and went in search of the clerk, 
at the request of the jury, to return their verdict; and whilst so absent from them, 
and before they had returned their verdict, one of them separated himself from his 
fellows and went into a store, and whilst there drank spirituous liquors.
The district attorney thereupon introduced the juror to whose conduct the affidavit 
and testimony of Cannon related, and proposed to prove by him the circumstances of 
his separation from the jury. To his competency as a witness the defendant objected,
 but his objection was overruled by the court; and the witness testified that when 
he separated from the jury they had agreed upon and signed their verdict, but had not
returned it; that he went some distance, to Johnson's store, and got his coat, and 
at the same time took a drink of spirituous liquor; that while there, he met with the
 bailiff, Cannon, who told him it was wrong to be there, and that he replied that 
they had agreed on their verdict and found the defendant guilty.
The court refused the application for a new trial, and the defendant appealed.

The separation of the jury, without permission of the court, before rendering their 
verdict, in trials of civil causes, though a misdemeanor, for which the juries may be
 punished, will not of itself vitiate the verdict.


The mere fact that a juror was temporarily separated from the jury during their 
deliberations is not ground for a new trial if defendant could not have been prejudiced 
thereby.


The affidavits of jurors may be received in support of their verdict, though not to 
impeach it.
GILLESPIE for appellant.
BREWSTER, representing attorney general, for appellee.


Mr. Justice WHEELER, after stating the facts, delivered the opinion of the 
court.
*2 It is insisted for the appellant that the court erred --
1st. In permitting the juror to testify in support of the verdict.
2d. In refusing to set aside the verdict for the misconduct of the juror.
1. It is a general rule, which has been seldom departed from, that a juror cannot be 
compelled [3 Day, 309], nor will he be permitted, to testify to his own misconduct or
 that of his fellow jurors. [4 Binn. 150; 5 Rawle, 61; 5 Conn. R. 348; 5 Hill, 560; 
19 Pick. R. 311; 4 Humph. R. 27; 1 Tex. R. 726.]
And it would seem upon principle, that where the question is, whether a juror has been
 guilty of misconduct, he ought not to be permitted to testify at all; for his testimony
 must either inculpate or acquit himself, and thus an inducement is presented to swerve
from the truth. There are, however, numerous cases in which it has been otherwise 
decided; and the rule which they have established is, that the affidavits of jurors
 may be received in support of their verdict, though not to impeach it. [2 Blackf. 
114; 4 Johns. 487; 6 N. Hamp. 352; 3 Scammon, 76.] The ruling of the court, in the 
present instance, was in conformity to this rule. An affidavit had been read inculpating 
the juror and impeaching his verdict; and it has been expressly decided that a juror who 
has been implicated in reference to a verdict which he may have given, is admissible to 
remove the ground of objection. [9 Shep. 268.] Had the testimony of the juror been 
contradicted, or unsupported, it must have been less satisfactory than that of a 
disinterested and indifferent witness. This, however, was not the case. On the 
contrary, his testimony fully corroborated that of the witness Cannon; and it is 
not perceived that it disclosed any new material fact. The juror states that before
 he separated from his fellow jurors they had agreed upon their verdict; and this 
fact is also to be inferred from the statement of Cannon. The alleged misconduct of
 the juror was his separation from the jury, after they had retired, and before
 they returned their verdict; and this misconduct the juror admited. The defendant, 
then, was not prejudiced by his testimony, even had it been improperly received, 
since it did not impeach, but conduced to support, the ground of his application for
 a new trial. In either view of the testimony of the juror, whether admissible or 
immaterial, the reception of it by the court can afford no ground for reversing the 
judgment.
2. In support of the principal ground relied on in the application for a new trial, 
the misconduct of the juror, the counsel for the appellant has referred us to two 
cases; one decided in Virginia and the other in Tennessee. In the former, The 
Commonwealth vs. McCall (1 Va. Ca. 271), two of the jurors separated themselves
 from their fellow jurors during the trial, and were absent about twenty minutes.
A majority of the court were of opinion that proof of actual tampering, or 
conversation on the subject, with a juryman was not necessary to set aside a 
verdict; and it was resolved that the separation of the jury was, of itself, 
sufficient cause for vitiating and setting aside the verdict. In the latter case,
 McLain vs. The State (10 Yerger, 251), which appears to have been decided 
mainly upon the authority of the former, during the trial, which lasted several
days, a part of the jury frequently separated themselves at night from their fellow 
jurors, for fifteen or twenty minutes at a time, without being under the charge of
 an officer; and it was held that this was such an irregularity as vitiated the
 verdict; and that it was not incumbent on the prisoner to prove that the jury 
were, in fact, subjected to any improper influence; it was sufficient that they 
might have been.
*3 It is to be remarked of these cases, however, that they are to be distinguished 
from the present case in having been of the most highly penal character. They were 
trials for capital crimes; and the principle is familiar, that, in a case affecting
 life, far greater strictness is required than in trials for offenses of an inferior
 degree.

In the former of these cases, moreover, there was a divided court, and it was said 
that not a single adjudged case in the English books could be shown, and none was 
shown, in which the separation of one juryman from his fellows had been considered 
sufficient to set aside a verdict.
But to whatever consideration and weight these cases may be entitled (and standing 
alone on the point they would be controlling), they are, nevertheless, opposed to 
adjudged cases of equal authority, in which it has been held that a separation of 
the jury before rendering their verdict, even in a case of life and death, does not, 
per se, render the verdict void. [1 Bailey, 651; 1 Blackf. 25.] And in a later case 
than that cited from Tennessee, the same court decided that it was not sufficient cause 
for awarding a new trial, even in a capital case, that the jury separated and mingled 
with the rest of the community, when it is satisfactorily shown that they were not 
tampered with. [Stone vs. The State, 4 Humph. 27; and see Commonwealth vs. Roley, 
12 Pick. 496, 519.] But whatever conflict of opinions and decisions there may be 
respecting the correct rule in a case affecting life, the doctrine is well settled, 
that, in trials for minor offenses and in civil causes, the separation of the jury 
without the permission of the court, before rendering their verdict, will not, of 
itself, vitiate the verdict, though it is a misdemeanor for which the jurors may be 
punished. [5 Blackf. 114; 1 Con. 221; 3 Id. 355; 3 Ham. O. R. 52; 1 Bibb, 265.]
In a late case before the court of appeals of South Carolina -- [2 Richardson, 119] --
 this question was considered, and the court quoted and adopted the rule stated in 
Graham on New Trials, p. 85, sec. 6, where it is said that "upon this point the 
practice in this country appears to have resolved itself into the exercise of a 
judicial discretion, confining the motion for a new trial to the question of abuse,
 and invariably denying the application where no injury has ensued."
Regarding this as the generally recognized and settled rule applicable to cases not 
more highly penal than the present, we must conclude that the misconduct complained 
of in this case, though the proper subject of animadversion and punishment by the court, 
was not, of itself, sufficient to vitiate and avoid the verdict.
*4 We are of opinion, therefore, that the court did not err in refusing the application
 for a new trial, and that the judgment be affirmed.
Tex. 1848.
WILLIAM CANNON, Appellant, v. THE STATE, Appellee,
3 Tex. 31, 1848 WL 3862 (Tex.)
END OF DOCUMENT


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