Howard v. Richeson , 13 Tex. 553 ( 1855 )

Wheeler, J.

There are but two grounds of error relied on which require notice. These are, 1st, as to the validity of the plaintiff’s title ; 2d, as to the right of the defendants to claim compensation for their improvements.

There can be no question that the land in controversy is within the territorial limits of De Witt’s contract of colonization. Of this the grant itself was prima fade evidence (Hatch v. Dunn, 11 Tex. R. 708; Robertson v. Teal, 9 Id. 344,) and the fact was fully proved. Under the contract the Empresario was empowered by the Government to make the grant, and the commissioner to issue the title to the land granted. And it is therefore unlike the case of Mason v. Russell’s heirs (1 Tex. R. 721) cited by counsel for the appellant. That was the case of a grant by the commissioner of a colony of lands lying wholly without the limits embraced by the contract to colonize. The contract under which the power to make the grant was claimed and exercised, did not confer the authority, The power was wanting, and the grant was consequently void. Here there can be no question that the power to make the grant was conferred by the Government. But it is contended that the land was also comprised within the contract of De Leon. If it were so, it does not necessarily follow that the title is void. Two persons might be empowered to grant lands within the same territorial limits, without an exclusive right in either. And unless the right of one was exclusive, or their grants were in conflict, in which case the elder would prevail, the grant of either would be effectual to pass the title of the Government and vest it in the grantee. And though one may have had the superior, unless it was the exclusive right, it would not effect the power of the other to grant, or the validity of his grants, subject to the assertion of the superior right; and the question as to whose was the better right could only arise in the case of a conflict. As between the Government and the grantee, there could be no question of the right of the grantee, and his right could only be questioned by one claiming the superior or preferred right and those deriving title through him. Here, then was no conflict in the exercise of the granting power by the respective Empresarios claiming the right to colonize within that territory. And even after De Leon obtained the augmentation or extension of the limits of his colony, and exercised the undisputed right to make grants within these limits, he appears to have respected this grant by DeWitt. But at the date of DeWitt’s contract, the boundaries of De Leon’s colony were not established; and it is by no means clear that they included the land in question. And as respects the conflict caused by the augmentation, the right of DeWitt appears to have been recognized by the Government as superior to that of De Leon; being prior in point of time; and the extension and boundaries asked by the latter having been conceded, in ignorance of the fact that they would include lands embraced in the contract of the latter; as appears by the executive mandate of the 2d of May, 1831. It is true that under his first grant De Leon asserted a claim to the territory within which this land is situated; and there was a question as to his right under that grant. But there was no question as to the right of DeWitt under his contract. It unquestionably embraced the land granted by him • and, as between his grantee and the Government, his right is indisputable. And it is sufficient for the present inquiry, that it does not appear by the evidence, that his authority to grant within these limits was ever revoked, or that by any action of the existing authorities, he was restricted in the exercise of the power within other limits. And, it is worthy of remark, that the same person, who, it is insisted, was commissioned to put De Leon in possession, issped the title now in question as commissioner of DeWitt’s colony. There is, therefore, every reason to believe that the grant was made conformably to law, with a due respect to the ascertained rights of the Empresario De Leon, and none whatever for the supposition that either the Empresario DeWitt or the commissioner, exceeded his power in making it.

It is very clear that the defendants were not entitled to claim compensation for their improvements. Their locations evidenced their knowledge of the prior grant; and they had actual notice of the plaintiff’s title and right to the land, and ample warning that they would occupy at their peril, at the time, or shortly after they entered upon it. Yet they went on to make improvements in utter recklessness of the warning and disregard of the rights of the plaintiff; and if they have suffered the loss of their labor expended in improving and ameliorating the condition of the property, it is in consequence of their own recklessness, in the ill advised attempt to appropriate to themselves, without right, the justly acquired property of another. To such a case the maxim applies that 61 He that hath committed inequity, shall not have equity.” (Francis Maxims, II.) A clearer case of actual notice of the prior title, and of the want of good faith towards the proprietor, could not have been made out. The evidence, therefore, by which the defendants proposed to establish their right to compensation for improvements was very properly excluded.

The objection to the admission of the plaintiff’s evidence of title, if well taken,, was removed by the introduction of the copy from the Land Office, admitted without objection. And it is a sufficient answer to the objection that the evidence did not identify the land, that it was described with certainty ia the title; and the possession of the defendants was admitted upon the record by their suggestion of having made improvements; and was fully proved by the witnesses. We are of -opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.