Yancey v. Norris , 27 Tex. 40 ( 1863 )

Bell, J.

We are of opinion that there is error in the judgement. The plaintiffs below did not show facts that would authorize the presumption of a grant to their ancestor. and the allegations of the petition taken together, repel the presumption of a grant prior to the enactment of the State colonizartion law of 1825. Hi their amended petition, the plaintiffs below abandoned the pretence that the document (marked A,) filed as a part of their original petition, was any evidence of a grant to their ancestor; and they alleged that they relied on the said document as showing that their ancestor applied to the political chief of the department of Texas for the land, as therein expressed, and that their ancestor had been put in possession of the land at the time stated in said document, by an officer professing to he a legally constituted officer and agent of the government, who professed to have legal authority to do so. The plaintiffs then allege that their ancestor received a grant from the legally constituted authority, under the colonization law of 1825.

The plaintiffs were doubtless led to this mode of pleading by the consideration that this court has decided that Jose Antonio Saucedo, who undertook to grant the land here in controversy, to Ramundo Norris, on the 5th of April, A. D. 1824, had no authority to make such a grant. (Jones v. Garza, 11 Tex., 186.)

The fact that the application made by Ramundo Norris, on the 18th of April, 1810, was found amongst the public archives, without any evidence that any action had ever" been taken upon it by the public authorities, might be supposed to repel the presumption that any grant had been made upon that application.

It could not with safety bé alleged that the political chief had made the grant in 1824, because that would be to ask the court to presume that a grant had been made, when there was no competent authority to make such a grant. It was therefore necessary to lay the foundation for the presumption of a grant, by alleging that the grant was made under the colonization law of 1825. But this allegation presents two difficulties, both of which seem to us to be insuperable. The first is, that the allegation itself negatives and repels the presumption of a grant prior to the year 1825; and the second is, that inasmuch as the land is shown to he situated within the border leagues, the grant made in 1825 or 1826 would be ineffectual to pass the title unless the consent of the federal executive of Mexico were also shown. The court would hardly presume the consent of the federal executive, because to • do so would be to do, in l¡ehalf of a grant resting upon presumption, what the court has always refused to do in support of a grant •actually produced in evidence. Another objection to the presumption of the consent of the federal executive is, that no such consent is alleged, and there must be proper allegations upon which to found presumptions as well as proof.

The principles upon which presumptions of grants rest, have been discussed during the present session of this court, in the case of Taylor v. Watkins, and it is unnecessary to enter upon the discussion of the subject again. Upon the principles laid down in that case, the plaintiffs in the court below are not entitled to recover.

The case was submitted to the judge below, without a jury, upon an agreement as to the facts; and we do not, therefore, deem it necessary to remand the case. The judgment of the court below is reversed; and this court' proceeding to render such judgment as ought to have been rendered in the court below, it is ordered, adjudged and decreed that the appellees, plaintiffs in the court below, take nothing by this suit, that the parties go hence without day, and that the appellant, Yancey, recover of the appellees the costs of this court, and also the costs of the District •Court.

Judgment reformed and rendered.

Moore, J., did not sit in this case.