Sulphen v. Norris , 44 Tex. 204 ( 1875 )

Ireland, Associate Justice.

The plaintiff below brought suit for four leagues of land situated in Nacogdoches county, and claimed title by virtue of being a child and heir of Ramundo or Edmond Norris. He alleges that the land was granted to his ancestor “ at some period between his entry into possession in 1805 or 1806 and before 1824.” That he bought the Ranche “Naconichi,” situated on this four leagues, from one McWilliams.

He introduced in evidence a petition to the political chief, dated in. 1810, asking a concession to this four leagues, and a confirmation or completion in 1824, and proved possession by his ancestor from 1806 to 1813, and from the cessation of the troubles between Spain and Mexico, about 1820, to the death of his ancestor in 1829 by himself and tenants to the institution of the suit. The appellant relied upon patents issued about 1844. The title issued in 1824 has been heretofore declared by this court of no validity. (Jones v. Garza, 11 Tex., 186.)

The appellee appears, in the court below and in the conduct of the case in this court, to abandon the idea of claiming or holding the land by virtue of his paper title exhibited in evidence, and relies upon his long possession as evidence from which a grant from the government ought to be presumed. The validity of appellee’s title and claim of right to the presumption of a grant was decided adversely to him in the case of Yancey v. Norris, 27 Tex., 47. In the elaborate and very able brief of appellee filed in this cause he says that he framed his pleadings and managed his case below so as to meet the objections to his title pointed out in the case of Yancey v Norris.

It is true that in this case the plaintiff below has alleged that his grant was prior to 1824, thus avoiding one of the difficulties encountered in Yancey v. Norris, arising out of the fact that the land was within the border leagues. But the fact still remains “ that the fact that the application made by Ramundo Norris in 1810 was found among 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.” (Yancey v. Norris, 27 Tex., 40.)

The law of prescription and limitation, now used as convertible terms, has existed in all civilized countries except among the Jews, and no feature of either the civil or common law has undergone more changes. The doctrine of prescription first arose and was applied to easements and not to the thing itself.

This doctrine of prescription and limitation was only applicable as between individuals. The rule or maxim of “ nullum tempus occurrit regi ” was always a shield to the crown or government. As veneration for royalty and a belief in the divine right of kings grew less potent, judges, by a fiction, found a way to avoid this rule by telling juries in very strong cases that they could presume a grant from the government.

But this was, in its origin, applied to some incorporeal right, and not to the fee to the soil. In a few of the American States courts have allowed juries to presume grants to the fee from the government, and it cannot be denied that the earlier cases in our own courts have impliedly, if not expressly, recognized the doctrine in this State. (Herndon v. Casiano, 7 Tex., 335, and Lewis v. San Antonio, 7 Tex., 288, and other cases.)

Notwithstanding the doctrine of presumption of grants from the government seems to be recognized by this court, yet no case has gone to the length of establishing title based on presumption.

It is not pretended that McWilliams, from whom plaintiff’s ancestor bought, had any title.

We understand the rule to be in this class of cases, when a title is to be shown from the government, that juries may be told that they can presume a grant to have issued,- not that they must so presume. No well-considered case can be found, we apprehend, where a grant to the fee has been presumed, if the party, in making out his case, shows that in fact no grant ever did exist, or where he fairly disproves the presumption.

We think-it now pretty well understood that this presumption is subject to be disproved, just as you might disprove or defeat limitation when plead in a suit on a note at common law, by showing a payment, or an admission, or any other fact which would rebut the presumption arising from lapse of time. (Taylor v. Watkins, 26 Tex., 688, and authorities cited.) On the other hand, cases may be found in which courts and juries have gone to the length of presuming a grant in the face of the almost admitted fact that none ever did in fact exist. This class of cases, however, are referable to incorporeal hereditaments and not to the thing or fee. Centuries had elapsed in the history of landed property before it was even supposed that the presumption of a grant could be indulged by the courts against the crown, but finally the subterfuge before spoken of was resorted to.

In 9 Serg. & R., 26, the Supreme Court of Pennsylvania say, “ Length of time cannot be said to be, like the statute of limitations, an absolute bar.” In 6 Pet., 666, in a case in many of its features like the one at bar, and in which the doctrine of presumption was invoked, the court say, “It is a well-settled rule that the statute of limitations can never bar the government. If this were so, it would only be necessary for an intruder to hold on until length of time would invest the intruder with title against the government and all persons claiming under it.”

The government could not at common law bring ejectment, because before ejectment could be maintained the lessor of the plaintiff must be disseized, and the government could not be disseized, and no laches could be imputed to the government. (Miller v. Garlock, 8 Barb., 153.) The government was not, however, powerless. It had a right to the “writ of intrusion.”

In all cases where a party seeks to hold by a presumed grant he had to show long possession, adverse exclusion, and to well-defined metes and bounds. In the case at bar the tract of land is four leagues, and was surveyed, as shown by the proof, by a man getting on a mule with a rope and measuring three miles each way—east, west, north, and south—from the ranche or improvement. There is no evidence of enclosure or actual occupancy, except the place called Naconichi.

Adverse claims were located on the land in 1838. The plaintiff below clearly did not seek to show that in fact a grant had been made to him by the Spanish government, but that he relied upon his long possession to raise the presumption of a grant. Appellant asked the court below to give this instruction: “ The defendant asks the court to charge the jury that, in proving title by presumption of a grant from the government, it devolves on the plaintiff to show that Ramundo Norris was a competent person to receive and hold such grant, and such fact must be established by proof, either positive or circumstantial, and not a mere presumption.” This charge was refused, and its refusal is one of the assigned errors for a reversal. That it was the general policy and law of Spain that foreigners could not hold or receive a concession to land is well known.

It is true, if a party shows a grant in fact from a government having such laws, the presumption of course would be that the grant was properly made. The power of the king of Spain to make a grant to a foreigner will not be questioned, notwithstanding the general laws of that kingdom, yet when a party seeks to hold land by title emanating from and under that government, by presumption of a grant based on long possession, it would be going too far to base that presumption upon another presumption, to wit, that the party was competent to take. A presumption cannot for its support rest upon another presumption.

This doctrine of presumption has been indulged in so little by this court that where a party has shown grants to land within the border leagues since the enactment of the colonization laws of 1825, they have been required to show an express ratification by the supreme government before their titles have been allowed a standing in the courts.

We believe, therefore, that the refusal of this charge by the court below was error. Ramundo Norris was shown to be a native of Maryland. We believe that the last charge asked by defendant below on the subject of possession in cases of presumed grants was also the law of this case, and that it was error to refuse it. It is also apparent that the finding of the jury in this case was contrary to the law as given them by the court, and for that the verdict should have been set aside. We have no disposition to disturb the law on the subject of presumption of grants as heretofore established by this court. But while we believe that the plaintiff has not shown himself entitled to the four leagues sued for, it is not so clear that he is not entitled to six hundred and forty acres to include his improvement.

The title under which appellee claims had its inception in 1838, the date of the locations.

While limitation does not run against the government, the location was such right as will be protected under our form of government. (Sherwood v. Fleming, 25 Tex. Supp., 408.)

This is unlike the rule in other States of the Union and the United States. There inchoate rights are under the control of the government.

Limitation would therefore commence to run from the date of the location in 1838, the land being adversely hold and claimed by Norris. (Hamilton v. Kimbro, 28 Tex., 560.)

We see no valid reason disclosed by the record in this case why appellee is not entitled to six hundred and forty acres. Admitting that plaintiff’s ancestor only took possession after his return from Louisiana, this was before the location by those under whom appellant claims.

The proof pretty clearly shows that plaintiff has maintained his possession by himself and tenants up to the institution of the first suit in 1854. This we think would entitle him to six hundred and forty acres. (Paschal’s Dig., art. 4624; Smith v. Power, 23 Tex., 29; Charle v. Saffold, 13 Tex., 111, and cases cited in note 1033.)

For the errors pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.

[Chief Justice Roberts and Justice Moore did not sit in this case.]