McPhail v. Burris , 42 Tex. 142 ( 1874 )

Moore, Associate Justice.

It certainly cannot be seriously denied that it was the duty of the Boards of Land Commissioners to determine under what law applicants were entitled to the certificates issued to them. In doing this, evidently the board determined the class to which the certificate belonged. In the absence of controverting testimony, the action of the board must be regarded as sufficient to establish the fact to be as determined by it, if, indeed, the class to which the certificate belonged, which necessarily entered into the decision of the applicant's right to the certificate, can collaterally be brought in question.

As both parties claimed under the same source of title, of which the certificate to Ward was the foundation, the recitals in it were legitimate evidence for or against either of them.

These suggestions are sufficient to show that the title to the certificate had passed from Ward to Burriss long before the tax sale upon which the appellant rests his defense.

But, as appellant" made no effort to show that the prerequisites to the exercise of the power to make the sale had been complied with by the assessor, the tax title introduced by them furnished no evidence of title to the land in favor of the parties claiming under it. And as in the deed from Ward to appellee, executed in 1854, he admits appellee was the owner of all the land not conveyed to him by said deed, which admission is sufficient evidence of title to the land sued,for to warrant its recovery against mere trespassers seeking to defend under Ward’s title, which is the position of appellant, without proof of the facts necessary to support the tax title, it follows, even if Ward’s deed for the certificate was admitted to be void, the judgment in favor of appellee is still correct. The law making the assessor’s deed prima fade evidence that all the prerequisites to the exercise of the power to sell the land for taxes had been complied with, was enacted long subsequent to the sale of the land by the assessor and the execution of the deed here in question. To give this subsequent statute application to this deed, and thereby vary and enlarge its legal import from that which it had when enacted, would bring the law in conflict with that provision of the Constitution which forbids the passage by the Legislature of retrospective laws.

Other objections made to the judgment present no question which need be discussed.

There is no error in the judgment, and it is therefore affirmed.

Affirmed.