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Supreme Court of Texas.




December Term, 1847.


*1 Appeal from BASTROP County.


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 HEMPHILLl and

Associate Justice LIPSCOMB having previously been of counsel for the




The doctrines in the case of The Heirs of HOLLIMAN v. PEEBLES, decided by

this court at the present term, recognized and adopted as the law of this case.

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 petition are not sufficient in law to have and maintain his

aforesaid suit. And this he is ready to verify. Wherefore he prays judgment,



(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.  A patent obtained by

fraud is utterly void.

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.

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." Same

doctrine in Legate's case.

Same doctrine held in Louisiana reports, that fraudulent contracts are void

ab initio. This principle seems to be universal.

In the New Pandect of Roman Civil Law 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;"

When public utility is concerned, fraud vitiates any transaction which in

its effect would tend to public mischief.

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. 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; FLETUS v. The Mayor of New Orleans;

2 White.

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; White; 1 La. Cond.

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; 2 White; 2 Pet. Dig.

Next, grants for important services and considerations already passed with

future stipulations and promises by the grantee, as in the ARREDONDO case.

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.

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.

Such, also, was the law in the Indies, and if not complied with they were

taken back and given to another. 2 White; STROTHER v. LUCAS, etc.

By compliance, they received an absolute grant or royal title.

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. 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


At the common law, future conditions in a grant must be performed, and must

be so found.

When an act of forfeiture takes place by a man's own act, any person, even a

stranger, may enter.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. 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.

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.

*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


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.

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.

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, 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.

The act of law, without office found, would cast the estate on the grantor.

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.

*8 And any circumstances of invalidity may be shown, in any possible action,

before the repeal of a conditional grant.

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.

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.

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. 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.

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.

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.

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 CHHAMBERS, 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.

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.

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.

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.

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.

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. The six

questions of GAUDO and the answer of SAAVEDRA thereto.

*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.

18th. A grant fraudulently obtained is voidable, and not void. And none but

the grantor or his heirs could avoid it.

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.

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.

*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


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.

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


*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.

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


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. 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


*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.


Supreme Court of the Republic of Texas.




No. XVI.

January Term, 1841.


*1 From the record in this case it appears that SMITH, the appellant, was

indicted at the spring term of the district court for Travis county for

"holding a faro bank, for the purpose of playing at faro and inviting and

receiving bettors," and at the fall term was tried, and the jury returned a

special verdict of "guilty of dealing faro in the city of Austin, previous

to 1840, and after the first of May, 1839." Upon the return of this verdict,

the appellant, by counsel, moved in arrest of judgment, upon the ground that

Austin, where the offense was alleged to have been committed, at the time

charged in the bill of indictment was within the territorial limits of

BASTROP county. The motion was overruled by the court, and the appellant was

ordered by the court to pay a fine in accordance with the statute passed May

26, 1837, entitled "An act to suppress gambling," of five hundred dollars,

together with costs of prosecution, and to remain in custody of the sheriff

until the sentence of the court was complied with. From this judgment of the

district court the appellant prayed an appeal to this court, and charges

error in the court below in overruling the motion in arrest of judgment.

Before we proceed to the discussion of the question, as to whether it was

error or not in the court below in overruling the motion in arrest of

judgment, we will meet and dispose of a preliminary question of paramount

consideration, and that is, "Has the defendant in a criminal prosecution,

upon an indictment in the district court, the right of an appeal to the

supreme court?" We think that he has. We believe that such a right is in

accordance with the genius and spirit of our institutions, and secured to

him by the constitution and laws of this country. And it must, we think, be

conceded by every one, that it is a question, whether considered with

reference to the infancy of our jurisprudence yet to be perfected by

subsequent adjudication and the wisdom of the legislature, or the almost

untried harmony of our institutions, political as well as judicial, which

have as yet been but slightly explored and partially developed, or the

sacred character of the rights to the citizens, as one involving the most

grand and solemn considerations.

The word "appeal" comes from the civil law, and the nature and operation of

an appeal, in a technical sense, cannot be a subject of doubt in proceedings

governed by that law. Indeed, it is sometimes used to denote the nature of

appellate jurisdiction, without any regard to the particular mode by which a

cause is transmitted from an inferior to a superior jurisdiction. In this

sense it is used by BLACKSTONE when he speaks of the court of exchequer as a

court that hath no original jurisdiction. So also the same elegant writer

denominates the house of peers of England as the supreme court of the


There are some other senses in which the word occurs in the common law,

which we may pass over in silence, as they have no application to the

present inquiry.

*2 Appeal ("appellatio" in the civil law) is defined, "Ab inferioris judicis

sententia ad superiorem provicare," "the removal of a cause from the

sentence of an inferior to a superior judge, or, as BLACKSTONE has expressed

it, "a complaint to a superior court of injustice done by an inferior one."

Calveus has collected the definitions given by many learned civilians, but

they all resolve themselves in the above. (See Black. Com.;

Calveus' Lexicon," "Appellatio;" Sheperd's Abridgement, "Appeal." Each of

these definitions accurately states the meaning, but not the mode or effect

of an appeal.

The remedy by appeal, as known and practiced in England, is in a great

measure confined (for I speak not of appeals of death and of robbery, and of

summary proceedings before magistrates) to courts of equity, admiralty and

ecclesiastical jurisdiction, in all of which no jury intervenes, and in each

of those courts the judge is in general the sole arbiter both of the law and

the facts, and the mode of proceeding is borrowed almost exclusively from

the civil law.

And it is undoubtedly true, that in courts proceeding according to the

course of the civil law, an appeal from an inferior to a superior tribunal

removes the whole proceedings, and usually, though not invariably, opens

both the law and the facts for re-examination.

By the 8th section, 4th article, of our constitution, we find the supreme

court of Texas clothed with appellate jurisdiction only, which shall be co-

extensive within the limits of the republic; but neither in that section, or

elsewhere in the constitution, do we find its appellate jurisdiction

restricted to any particular class or character of actions. We search in

vain in that instrument for any such restriction. It cannot be found. But on

the contrary, in the declaration of rights, it is emphatically declared that

all courts shall be open, and "every man for any injury done him in his

lands, goods, person or reputation, shall have remedy by due course of law."

We think it clear, then, that the right of appeal from the district court to

the supreme court in criminal prosecutions as well as in civil actions is

secured to the defendant in such prosecution by the constitution. But if we

were of opinion that any doubt could be entertained of the clear and

indefeasible right to an appeal in criminal cases by the constitution (and

indeed we have none, but rest it upon that instrument alone), that doubt

would in a great measure be removed by the act entitled "an act to establish

and organize the supreme court, and to define the powers and jurisdiction

thereof." In the third section of that act there is a legislative

declaration of the right of appeal in criminal as well as civil cases: "And

the said supreme court shall have jurisdiction over and hear and determine

all pleas, plaints, motions and controversies, civil and criminal, which may

be brought before it." And in the sixth section the same right of appeal is

clearly and indisputably recognized in language which none can mistake, in

the following words: "The sentence of the supreme court, in all criminal

prosecutions brought before such court from any other courts, shall be

executed in like manner in all respects as if such sentence had been

rendered in the court wherein the prosecution originated; and the sheriff of

the proper county shall be charged with the execution of such sentence."

Hence we see that immediately after the organization of our government, a

legislative declaration of the constitutional right of appeal in criminal

cases was made. But it was contended by the district attorney for the third

judicial district and by the attorney general, that if indeed the supreme

court had jurisdiction of criminal cases and could hear and determine all

manner of pleas, plaints, motions and controversies, civil and criminal, yet

it could exercise that jurisdiction only by writ of error, and not by

appeal. That the common law having been adopted by the constitution in

criminal proceedings became a part of that instrument, and by that law a

cause was removed from an inferior to a superior tribunal by writ of error

only and not by appeal. That by writ of error, the errors of law alone could

be examined in the supreme court, and that the usual effect of an appeal

from an inferior tribunal, being one that opened the facts as well as the

law for re-examination, could not be admitted as a right to the defendant in

the district court in a criminal prosecution, because no such right was ever

known to the common law of England.

*3 We frankly admit that we search in vain in the common law for an instance

of an appellate court retrying the cause upon the facts; and we know that

the only mode known to the common law of removing a cause from an inferior

to a superior tribunal was by writ of error. But we cannot admit that in

adopting the common law the convention intended thereby to adopt irrevocably

the practice of the common law in criminal proceedings, and tie down the

legislature of the country to the common law course of proceedings. For we

see that the very framers of the constitution itself, after adopting the

"common law as the rule of decision in criminal proceedings," have gone on

and made considerable innovations in the practice of that very code which

they had just adopted. At common law, in criminal cases, the defendant had

not the right to have compulsory process to compel the attendance of

witnesses, etc. He had not the right to be heard by counsel, except upon

collateral or incidental questions; he had not the right of the writ of

habeas corpus; nor did he, indeed, have the right of the benefit of

testimony in his favor under the sanction of an oath; all of which is

secured to the citizen by our constitution and are innovations in the

practice of the common law. It is our opinion, then, that the convention

intended only to adopt the common law, to use their own language, "as the

rule of decision" in criminal proceedings; and no more of the forms and

peculiar writs of that code than might be found necessary to carry out the

objects contemplated by that adoption. And surely the convention never

intended, when they inserted in the constitution a provision creating an

appellate court in criminal as well as civil cases, to deny the accused who

might wish to appeal from the district court to the supreme court the right

of having the facts of his case, as well as the law, opened to

re-examination. We cannot believe it. We decide, then, that the defendant in

a criminal prosecution in the district court has the right of appeal to this

court from the judgment or sentence of the court below, and to have the

facts as well as the law, at his own election, opened for re-examination.

Having disposed of the preliminary question that the defendant in a criminal

prosecution in the district court has the right of appeal from the judgment

of that court to the supreme court, and shown conclusively, as we believe,

that the constitution has given the supreme court jurisdiction by appeal in

criminal cases, we will next proceed to inquire whether it was error in the

court below, in the case now under consideration, in overruling the motion

in arrest of judgment. We will consider this decision of the district judge,

with an eye both to the law and the facts as shown by the record.

The motion in arrest of judgment was predicated upon the fact that the

"dealing of faro, the offense charged in the indictment, was committed

before the passage of the act entitled 'an act creating the county of

Travis' and within the then territorial limits of BASTROP county." Numerous

authorities were cited by the counsel for the appellant upon the trial of

this case in the supreme court, to show that it was error in the court below

to overrule the motion; but we are unable to see their application in this

case; and we are satisfied that they do not comprehend this particular case.

The motion was bad in arrest of judgment and properly overruled. If the

reasoning was good in support of the motion in arrest, it would be equally

good under similar circumstances in BASTROP county, because it was once

called "Mina;" and in Harris county, because it was formerly called

"Harrisburg." The present congress has passed an act dividing Red River

county into Red River, Bowie and Lamar; and this doctrine, if it were

correct, would protect from just punishment any offender, however flagrant

his offense, if committed before the passage of the act dividing the county,

unless the offense should have been committed within the new territorial

limits of Red River county. The counsel for the appellant with candor

admitted that the appellant could not have been properly indicted and tried

in BASTROP, and contended that inasmuch as the act creating the county of

Travis contained no special provision for such cases as that of the

appellant, that he could not be legally tried and convicted in either

county. But what, we will ask, was the intention of the legislature in

passing the act creating the county of Travis? Was it to protect the guilty

from punishment? Was it to open the prison doors to them that were bound,

without making any compensation to an injured community and the violated

laws? Was it to encourage crime and insult the majesty of the constitution?

No! It had other motives and other intentions in view. Of this we are

certain. And what they intended is binding upon us in expounding the law.

And so we decide and affirm the judgment or sentence of the court below with

costs, and order that this cause be certified to said court according to

law, and that the sentence of said court be executed according to the



Const. art. 4, § 8, clothes the supreme court with appellate jurisdiction

only, coextensive with the limits of the republic, without restricting its

jurisdiction to any particular class or character of actions; and section 11

of the declaration of rights declares that all courts shall be open, and

"every man, for injury done him in his lands, goods, person, or reputation,

shall have remedy by due course of law." Held to secure a right of appeal

from the district to the supreme court in criminal prosecutions, as well as

in civil actions.


[Opinion delivered by Judge HANSFORD.]

*4 Judges HUTCHINSON and SCURRY say:

"We concur in the result of this opinion; and that result, though attained

by the members of the court upon some diversity of reasoning, etc., is to be

the law of the case."

[Nothing on record to show any further concurrence.]