Atkinson v. Bell ( 1857 )

Hemphill Ch. J.

This case presents some peculiar features. One is, that at the time of the sale from Babbitt to Thomas Bell, under which the appellee, John G. Bell, now claims, viz: on March 15th, 1835, the land was entirely vacant. There is not a tittle of evidence in the case, to show that Babbitt even claimed the land at that time, except that in Ms bond or agreement for title, the land is described as a portion of his three quarters of a league. On the twenty-fourth of September following, Babbitt petitions for title to three quarters of a league, which we may presume embraces this ten acres sold by him in March previous. On the twenty-fifth, there is order of survey, and the title was issued on the third of the next month, viz : October, 1835.

The laws of Ooahuila and Texas had not prohibited individuals from selling lands belonging to the public domain, on the presumption, we may suppose, that no such sale would be attempted. But where land had been severed and title issued to settlers, the sale by the Colonization Law of 24th March, 1825, Art. 27, was prohibited, until the land was entirely cultivated ; which we held as equivalent to six years from the issue of the title ; and under Decree 190, 28th April, 1832, settlers, whether Mexicans or foreigners, were forbidden to sell their lands until after six years from the time of taking possession, (Art. 19.) These prohibitions were modified by Art. 36 of Decree No. 272, 26th March, 1834, authorizing settlers, after they had received their titles to sell their lands. By the term “ titles,” under this last article, we are to understand what is designated and is known as the final title ; not an amparo, or an order of survey, but such title, for instance, as Commissioners were authorized to issue under the instructions of the 4th September, 1827, and such title as was issued to Babbitt on the 3d of October, 1835.

We have held in various cases, in effect, that prior to the Law of the 26th March, 1833, sales made by colonists or settlers, of their headrights, before the lapse of six years from the date of the title, were void ; (Hunt’s Heirs v. Robinson’s Heirs, 1 Tex. R. 748;) and we have also held that after the Law of the 26th March, 1834, up to the date of the Constitution of the Republic, sales of lands by settlers, and agreements for the sale of their land, made before the final titles were issued to them, were nullities. (Robbins’ Heirs v. Robbins' Heirs, 3 Tex. R. 496; Spillers v. Clapp, 3 Id. 498; Emmons v. Oldham, 12 Id. 18.)

In this case, the sale to Thomas Bell, of the 15th March, 1835, was of vacant land ; but it cannot be placed on a more favorable footing than if the land had been held by Babbitt under an order of survey or an amparo. If it had been so held, the sale would have been void, having been made before the issue of the final title. The rule that where a vendor has not title and sells, any title aftewards procured by him will enure to the benefit of the purchaser, does not apply in cases where such sale was prohibited by law. Such favor, shown to a purchaser at a prohibited sale, would thwart and defeat the policy of the Government.

There may be equities, such as taking possession, &c., arising subsequent to the sale, which would sustain the claim of the purchaser, against the title of the vendor ; and these have been commented on in Hunt v. Turner, 9 Tex. R. 385, and Burleson v. Burleson, 11 Id. 2. And in this case there was a commencement of such equities, by the possession of a portion of the ten acres, for four or five years, by Thomas Bell; and what effect might be given to these acts, as against Babbitt, were he to have attempted a recovery of the land from his vendee, need not be considered. But, under the facts in evidence, the title of the appellee is not such as will maintain the action against the defendant. The title from Babbitt to Thomas Bell is void. The possession of said Bell was not of such duration as to give him a good title by limitation.

The facts show, indeed, as we have said, that there was a commencement of equities in Thomas Bell, as against his vendor, Babbitt; but this right, although it may have been strong as against Babbitt, was transferred to the Methodist Society in 1842 or 1843, and the land has, from that time to the present, been used by that society for church purposes. The house first built having gone to decay, another has been erected for the use of the Methodist Society. The gift was by parol, there being no deed ; but the donor, Thomas Bell, stated that he would make the deed whenever it was desired to be made. Nor was the Methodist Society, which worshipped at that church, incorporated ; but neither of these facts, viz : that the dedication was by parol, and that there was no grantee capable of taking by grant, have the effect of defeating the donation. The' rules of law in support of both of these positions will be found very fully and clearly expounded and decided in Beatty and Richie v. Kurtz, et al., 2 Peters, 566 and in the City of Cincinnati v. The Lessees of White, 6 Peters, 432. Had the donor, Thomas Bell, at the time of the dedication, held the legal title, he could not have recovered as against his grantees, nor against a third person, unless he was suing for and in behalf of the Church. Nor can he or his vendee, the appellee, recover on such title as he possessed at the time of the dedication or gift. Nor is it intended to be intimated that any one could hold as. against the society. Whatever right Thomas Bell would have had, if he had continued to hold for the nineteen or twenty years which have elapsed from the issue of the title to Babbitt, is now in the society. The effect of such possession can scarcely be doubted, but it is not necessary to determine its weight in this case. It is very clear that on the evidence, the appellee was not entitled to recover, and the iudgment is reversed and the cause remanded.

Reversed and remanded.