This Court again decides, as in former cases, that a refusal of
the court below to grant a new trial is not a proper subject for a
bill of exception.
In an action of ejectment, where the defendant pleads the
statute of limitations, he must connect his own possession with the
adverse possession and title of another person which is set up as a
defense. Otherwise, the plea is not good.
Under the decisions of the courts of Texas, a survey made of
land beyond the limits of the surveyor's district, although invalid
at the time, is rendered good by the subsequent approval of the
proper county surveyor. This Court adopts the rule.
The case is stated in the opinion of the Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
In his petition, the plaintiff claims two leagues of land, worth
twenty-five thousand dollars, in Nueces County, San Patricio
District, on the Bay of Corpus Christi, and west of the Nueces, and
he alleges that the defendants, on or about the 4th day of October,
1849, entered into the possession of one-fourth of the above
premises, and ejected the petitioner &c.
The defendants pleaded the general issue, and by leave of the
court filed an amended answer containing six pleas in bar. The
first plea alleged an adverse possession of more than ten years by
Enrique Villareal. The second that he had peaceable and adverse
possession for more than three years after the right accrued to the
person under whom the plaintiff claims, and that he did not make
entry or commence an action to try title to the land before the
16th of June, 1842, and that after that day, Henry L. Kinney, being
seized of the land from Villareal, held adverse and uninterrupted
possession, without entry or action by plaintiff, up to the
commencement of this suit. Third, that Villareal, and those
claiming under him, held adverse and peaceable possession on the
17th of March, 1841, and up to the commencement of the action.
In the fourth plea, ten years' adverse possession was alleged,
and in the fifth, an adverse possession of three years. The sixth
plea avers that each of the defendants, and those under whom they
claim, had adverse, peaceable, and continuous possession
Page 61 U. S. 30
of the land for more than three years, under color of title,
before the commencement of the action.
Special demurrers were filed to these pleas, except the sixth,
on which issue was joined. The demurrers were sustained to the
first and fourth pleas, but overruled by the court as to the third
and fifth. The issues before the jury were upon the plea of not
guilty, and the second, third, fifth, and sixth pleas of
On the trial before the jury, two patents issued by the Republic
of Texas, dated the 10th of April, 1849, to Levi Jones, were given
in evidence by the plaintiff. One of these patents purported to be
issued to Levi Jones, as assignee of Miguel Basquez, for one league
of land in the San Patricio District, survey No. 20, on the west
side of the Nueces, on Corpus Christi Bay, by virtue of head right
certificate No. 288.
The other patent was issued to Levi Jones, assignee of Jose Ma.
Bargas, for a league of land in the same district, known as survey
No. 21, on the west side of Corpus Christi Bay, adjoining survey
No. 20, by virtue of head right certificate 499.
To show the position and outlines of the two leagues of land,
the plaintiff gave in evidence a part of Grammont's map, duly
certified by the land office.
The plaintiff also gave in evidence a deed of conveyance of the
land by Levi Jones to him, dated the 2d of October, 1849. It was
proved that the Town of Corpus Christi is included in the surveys,
and is situated on the shore of the bay. Felix A. Butcher, a
witness, came to Corpus Christi first in the year 1846. He knows
all or most of the defendants were in possession of the land at
least one year prior to the 8th of October, 1849, and at that time
the lots upon which the defendants resided were worth about ten
dollars each; now they are worth one hundred dollars each in the
best localities. The occupants have made valuable improvements on
The defendants then offered to read certified copies of two
patents from the record, issued by the State of Texas on the 11th
of July, 1845, one to Kelsey H. Douglass and the other to John S.
Thorn, assignee &c., for the land claimed by plaintiff. Both of
these patents on the record book had written upon them a
memorandum: "This patent cancelled, April 10th, 1848."
It was proved that these patents had been inadvertently issued
to Douglass and Thorn, when the field notes of the surveys had been
returned in the name of Levi Jones, assignee &c. They were
cancelled on the advice of the Attorney General. The plaintiff
objected to the introduction of the above copies, but the objection
was overruled and the papers admitted.
Page 61 U. S. 31
Proof was then made that Enrique Villareal held possession of a
tract of ten leagues, including the land in controversy, from the
year 1810 down to the year 1839, claiming it from 1810 to 1831
under a title from the Spanish government; that in 1839 Henry L.
Kinney succeeded Villareal in possession, but the deed for the land
was not made to him until the following year; that Villareal was a
native of Mexico, and at the time of the grant to him by the State
of Tamaulipas was a citizen of that state and held a commission in
the army. The grant was alleged to have been lost, and the court
held it could not be proved by parol, but documentary and parol
proof were admitted to show the boundaries claimed and the
possession of Villareal. A great number of facts were proved,
historical and otherwise, in regard to this claim which it is
unnecessary here to state.
Objection to this part of the defense was made but overruled,
and the evidence was admitted.
The plaintiff then requested the court to give to the jury
twenty-one instructions, principally in relation to the title of
Villareal, which go into details of great length but which, from
the view we have taken of the case, it is not necessary to
The court refused to give any of the instructions requested by
the plaintiff, but charged the jury that the plaintiff must recover
on the strength of his own title, not on the weakness of his
adversary's; that if the surveys on which the patents in evidence
were issued were void when made, the plaintiff can claim no title
to land under such patents; that if the surveys were made west of
the Nueces River on Corpus Christi Bay prior to the 24th of May,
1838, by the deputy surveyor of San Patricio County, they were
void, because San Patricio County did not at that time extend west
of the River Nueces, and the approval of the county surveyor,
Buchanan, even if given after the 24th of May, 1838, relates back
in point of time to the date of the surveys by his deputy, but does
not have the effect of making good the surveys if at the time they
were made by the deputy surveyor they were out of the limits of the
county; that if Villareal had acquired a title to the land under
the government of Spain or Mexico before his death, and if he died
an alien enemy to the Republic of Texas in 1845, leaving only alien
enemies as his heirs, still his title to the land in controversy
did not escheat to the Republic, and consequently could not pass by
the subsequent patents issued by the Republic or state; that as
these instructions are sufficient for the decision of the case, the
court refused the instructions asked by the plaintiff. Exceptions
were taken by the plaintiff, as well to the
Page 61 U. S. 32
instructions asked by him and refused, as to those given against
him, on the prayers of the defendants.
The decision of the court on a motion for a new trial, which was
excepted to, affords no ground for a writ of error. Such a motion
is addressed to the sound discretion of the court on a
consideration of the evidence before the jury, and this Court can
no more control that discretion than when it is exercised by the
circuit court in granting continuances or amendments of the
As to the pleas which set up the claim and possession of
Villareal as a bar under the statute of limitations to the
plaintiff's action, it does not appear from the evidence that the
defendants are in any way connected with that title. There is
nothing in the facts of the case which conduce to show an entry
under it by the defendants or that they entered under any claim of
title. It is proved by one witness that a part of the defendants,
if not all of them, were in possession of the premises they now
occupy at least one year prior to the 8th of October, 1849. On the
3d of that month and year, the seizin of the plaintiff is stated in
his petition. From this it would appear that the defendants'
possession was prior to the seizin of the plaintiff, so that in
regard to him they cannot be considered as having ejected him by
their entry, his legal title not having then accrued. But if the
defendants entered without claim of title, which must be presumed
as they have shown no title, they become trespassers on the
premises of the plaintiff after his title accrued.
Villareal died in 1844 or 1845. It is contended that he retained
possession of the premises up to 1839, and that Kinney took
possession in that year under him and continued in the possession
until the commencement of this action. This possession is
controverted by the plaintiff, on evidence that Kinney's residence
was in another county, and that he was only occasionally at Corpus
Christi; but if his possession be admitted as asserted, it is not
perceived how it could inure to the benefit of the defendants under
the statute of limitations, as Kinney is not a defendant, and they
show no privity with his title. Possession, to be effectual, either
to prevent a recovery or vest a right under the statute of
limitations, must be an actual possession, attended with a manifest
intention to hold and continue it. It must be, in the language of
the authorities, an actual, continued, adverse, and exclusive
possession for the space of time required by the statute. It need
not be continued by the same person, but when held by different
persons, it must be shown that a privity existed between them.
Wheeler v. Moody,
11 Tex. 372.
Page 61 U. S. 33
In the action of ejectment, the defendant may show a paramount
outstanding and subsisting title for the same land in a stranger,
to defeat the plaintiff; and the rule of evidence is the same in
this action, although it is prosecuted under the forms adopted by
Texas. A large portion of the evidence in the record, and many of
the authorities cited in the circuit court, were to show an older
and paramount title to the same land, under the Mexican government,
by Villareal, and Kinney, his assignee; but, as there are other
points on which the case may be decided, the court will not
consider the validity of that title.
The court instructed the jury that if the surveys were made west
of the Nueces River, on Corpus Christi Bay, prior to the 24th of
May, 1838, by the deputy surveyor of San Patricio County, they were
void, because San Patricio did not at that time extend west of the
River Nueces, and the approval of the county surveyor, Buchanan,
even if given after the 24th of May, 1838, does not make them
It was held in Linn v. Scott,
3 Tex. 6, that a survey
made by a surveyor of any other county than that in which the land
lies, is a nullity. But in Horton v. Pace,
9 Tex. 81, the
"We do not question the right of a surveyor to adopt a previous
survey he thinks correct; but we do not admit it was the duty of
the court to oblige him to adopt one shown to be incorrect."
And in Warren v. Sherman,
5 Tex. 441, it is said a
survey, whensoever made, if supported by a recommended certificate,
is, in contemplation of law, valid; if otherwise, it is without
legal foundation. In Lake v. Wafer,
16 Tex., the court
held, "A survey made in 1841 without certificate, and applied to
the certificate of 1844, constitutes no objection to the validity
of the patent." If a deputy surveyor make a survey for himself, on
a certificate belonging to himself, when approved by the district
surveyor, it becomes the act of the latter, and was so far valid.
Howard v. Perry,
7 Tex. 259.
Under these decisions, the circuit court erred in giving the
above instruction. If the surveys were void when made west of the
Nueces, as being without the limits of San Patricio County, they
were made valid by the subsequent approval of the county surveyor,
after the county limits were extended west of that river.
The cancellation of the patents stated by the acting
Commissioner of the Land Office, by the advice of the Attorney
General, was proper. The commissioner, in issuing a patent,
performs a ministerial duty; and if it be fraudulently or
negligently issued to an improper person, the error should be
Page 61 U. S. 34
The divestiture of the title by the government can only be
accomplished in the mode authorized by law.
It is desirable that points of exceptions and instructions asked
from the court to the jury should be as few and as concisely
expressed as may be consistent with the interests of the respective
The judgment of the circuit court is reversed, and the cause
remanded for further proceedings.