1. A Mexican was not, by the revolution which resulted in the
independence of Texas or by her Constitution of March 17, 1836, or
her laws subsequently enacted, divested of his title to lands in
that state, but he retained the right to alienate and transmit them
to his heirs, and the latter are entitled to sue for and recover
them.
2. The division of a country and the maintenance of independent
governments over its different parts do not of themselves divest
the rights which the citizens of either have to property situate
within the territory of the other.
3. That Constitution, although declaring generally that aliens
shall not hold land in Texas except by title emanating directly
from the government, did not divest their title, for it adds that
"they shall have a reasonable time to take possession of and
dispose of the same in a manner hereafter to be pointed out by
law." Before the title can be divested, proceedings for enforcing
its forfeiture must be provided by law and carried into effect, and
hitherto they have not been provided.
4. In Texas, the protocol of a Mexican title is an archive which
may be deposited in the General Land Office at any time, subject to
all just implications arising from delay and the circumstances of
its history, and when so deposited, a certified copy thereof from
the land office is competent
prima facie evidence of the
title.
5. Until a title is deposited in the land office or duly
recorded in the proper county,
bona fide purchasers not
having notice thereof, though claiming under a junior Mexican
grant, will be protected.
Page 98 U. S. 492
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action of trespass to try title to land, being
equivalent in Texas to an action of ejectment. The defendants in
error were the plaintiffs below, and judgment being given in their
favor, the case is brought here by writ of error. The petition in
the action was filed on the 3d of June, 1872, and sets out that the
plaintiffs are citizens of the Republic of Mexico residing in the
City of Mexico, and that on the 1st of July, 1869, they were seised
in fee and possessed of a certain tract of land containing eleven
leagues, situated in the Counties of Anderson and Freestone, on the
right and left banks of Trinity River, stating the metes and bounds
thereof, and that on that day, the defendant, Airhart (now
plaintiff in error), illegally ousted them, and continues to hold
possession of the tract to their damage.
The defendant demurred and pleaded 1st, not guilty; 2d, the
statute of limitations for three years in virtue of possession
under regular title from the sovereignty of the soil, as to a
certain portion of the land, containing 1,855 acres, giving the
metes and bounds thereof, being the south part of E. C. Harris's
survey, and the same plea as to another portion of the tract sued
for (containing about 153 acres), giving the metes and bounds of
the same, and disclaiming as to all the rest of the land sued for.
The defendant further pleaded, 3d, the statute of limitations of
five years and payment of taxes as to the two tracts last named;
4th, the statute of limitations of ten years, and 5th, adverse
possession under an entry of title since 1850, and the erection of
permanent improvements, for which he claimed compensation. Various
amendments of the pleadings were subsequently added which it is
unnecessary to notice.
It appears from the various bills of exception taken in the case
that the plaintiffs claimed title 1st, under an eleven
Page 98 U. S. 493
league grant, made by the government of Coahuila and Texas to
one Jose Ygnacio Aguilera, of the City of Mexico, on the 22d of
March, 1830, and possessory title executed thereon by Commissioner
Vicente Aldrete on the 26th of November, 1833; 2d, an act of sale
of the said eleven leagues, passed on the twelfth day of March,
1836, in the City of Mexico, from the said Aguilera to Anna Matilda
Massieu, a citizen of Mexico, then an infant, and who died in
August, 1851, under age; and 3d, descent to the plaintiffs as the
heirs-at-law of said Anna Matilda, they being her mother and
brothers and sisters, and all citizens of Mexico.
The defendant claimed title to the tract of 1,855 acres,
mentioned in his pleas, under a grant from the State of Coahuila
and Texas to Edward C. Harris, made Jan. 26, 1835, and through
various mesne conveyances from said Harris to himself. He claimed
title to the 153-acre tract (the other tract mentioned in his
pleas) under a head-right grant made by the State of Texas to one
Robert S. Patton on the 4th of February, 1857, and through various
mesne conveyances to himself.
The first question raised for the consideration of this Court is
that arising upon the alienage of the plaintiffs. This question was
raised by the demurrer to the petition so far as relates to their
right to maintain an action for land. The subsequent proceedings
raised the further question whether, being aliens, they could
inherit lands in Texas in 1851 from Anna Matilda Massieu, who was
also an alien, and if they could, whether they could continue to
hold the title thereof without residing in Texas and becoming
citizens. These questions may be conveniently considered
together.
Texas, which, with Coahuila, had constituted a state of the
Mexican Republic, declared her independence on the 2d of March,
1836, but the Mexican or Spanish law, except as to criminal cases
and except as modified by the congress, was continued as the law of
the republic until the 16th of March, 1840, when the common law was
adopted. By the common law, an alien could indeed take land by
purchase, but it would be liable to forfeiture to the King, and he
could neither take nor transmit land by inheritance. Co.Litt. 2; 1
Bl. Com. 372; 2
id. 349; 3 Cruise, Dig. 365; Williams,
Real Prop. 53;
Page 98 U. S. 494
2 Kent Com. 53. It is conceded, however, by the counsel of the
defendant, that important qualifications of this rule have always
existed in the laws of Texas. The precise question is whether a
citizen of Mexico, not being a resident of Texas but of some other
Mexican State, owning lands in Texas at the time of the revolution,
lost his title thereto or his right to convey the same or to
transmit the same to his heirs, by means of the revolution or by
reason of subsequent legislation. The separation of Texas from the
Republic of Mexico was the division of an empire. Up to the time of
such division, all the citizens of the republic were citizens in
every portion thereof, and had full right to hold property, movable
or immovable, in every portion. If the revolution in Texas deprived
the citizens of Mexico residing in other Mexican States of the
right to hold and transmit their property situated in Texas, it
amounted to confiscation. Did such confiscation take place by
virtue of general international law or by virtue of legislation
adopted by Texas after its independence was declared? That such is
not the general consequence of a division of empire seems to be
settled. Mr. Justice Nelson, delivering the opinion of this Court
in the case of
Jones v.
McMasters, 20 How. 8, which related to a Texas
title, says: "The general principle is undisputed, that the
division of an empire works no forfeiture of a right of property
previously acquired."
The original Constitution of Texas, adopted March 17, 1836,
fifteen days after the declaration of independence, did, indeed,
provide as follows:
"All persons who shall leave the country for the purpose of
evading a participation in the present struggle, &c., shall
forfeit all rights of citizenship, and such lands as they may hold
in the republic."
Gen.Provs., sec. 8. But this did not refer to Mexicans residing
elsewhere. The tenth section, however, declared as follows:
"No alien shall hold land in Texas except by titles emanating
directly from the government of the republic, but if any citizen of
this republic should die intestate or otherwise, his children or
heirs shall inherit his estate, and aliens shall have a reasonable
time to take possession of and dispose of the same in a manner
hereafter to be pointed out by law."
So that although it was declared that aliens should not hold
lands in Texas, a reasonable
Page 98 U. S. 495
time was to be given to them to come in or dispose of their
lands, the last clause evidently referring to aliens generally, and
not merely to the "children and heirs" just referred to.
By an Act of the congress of Texas passed Jan. 28, 1840, it was
provided as follows:
"In making title to land by descent, it shall be no bar to a
party that any ancestor through whom he derives his descent from
the intestate is or hath been an alien, and every alien to whom any
land may be devised or may descend shall have nine years to become
a citizen of the republic and take possession of such land, or
shall have nine years to sell the same before it shall be declared
to be forfeited or before it shall escheat to the government."
Oldham & White 699, 700.
This statute has continued in force to the present time, being
reenacted in 1848. The state constitution of 1845 effected no
change in rights of property, but expressly established existing
rights. Art. 6, sec. 20. By an Act passed Feb. 13, 1854,
Pasch.Dig., arts. 45-47, it was further provided in favor of aliens
that they should have the same rights as are accorded to American
citizens by the laws of the nation to which such aliens belong,
including the right to take and hold property, real or personal, by
devise or descent from any alien or citizen. This law being passed
subsequent to the death of Anna Matilda Massieu, cannot affect the
present case, but is cited for the purpose of illustrating the
spirit and course of Texas legislation on the subject under
consideration.
Aguilera became an alien to Texas by virtue of the separation of
that state from the rest of the Mexican Republic. His title to the
lands in question had been lawfully acquired before this forced
alienage commenced and whilst his rights of citizenship extended to
Texas as a portion of the Republic of Mexico.
At that time, as before stated, the Spanish law, as modified by
the local laws of Mexico and of the State of Coahuila and Texas,
was the general law of the infant state, and in some of the early
cases in Texas, as in the
Heirs of Holliman v. Peebles, 1
Tex. 673, and in
Yates v. Iams, 10
id. 168, it
was argued, though not expressly decided, that by the general
Spanish law, and if not by that law, at least by the colonization
laws of Mexico and of Coahuila and Texas, a nonresident alien could
not hold real estate. The same views were expressed in the case
Page 98 U. S. 496
of
McKinney v.
Saviego, 18 How. 235. But the laws referred to had
respect to the case of aliens who, when they were such, acquired or
attempted to acquire lands in Spain or her colonies, and not to the
case of citizens or subjects who, on the division of an empire,
happened to hold lands in the section in which they did not reside,
and therefore had good title thereto when, by operation of law,
they became aliens as to such section. It must be admitted that
aliens of this class stand on a different footing, in equity at
least, from those who, being aliens, attempt, against the law, to
acquire real estate in a foreign country. It may be a wise policy
to prevent the latter class from acquiring lands, whilst it would
be extremely unjust to confiscate the lands of the former class --
lands which they had rightfully and innocently acquired, having
only become aliens afterwards by force of law resulting from events
beyond their control. This precise question came before this Court
in the case of
Jones v. McMasters, supra, and it was
decided that the title of such persons is not divested by their
forced alienage resulting from the division of an empire. In that
case, the plaintiff was a citizen of Mexico and owned the land in
controversy situated in Texas at the period of the Texan
revolution. The defendants claimed under patents from the state,
and contended that the plaintiff must fail in her action. But it
was sustained by the court below and by this Court. Mr. Justice
Nelson, in delivering the opinion of this Court, said:
"Assuming that the plaintiff is an alien, and not a citizen of
Texas, the next question is whether or not she is under any
disability that would prevent her from the assertion of her title
to the premises in question -- in other words, whether her absence
and alienage worked a forfeiture of the estate. The general
principle is undisputed that the division of an empire works no
forfeiture of a right of property previously acquired.
Kelly v.
Harrison, 2 J.Cases 29;
32 U. S.
7 Pet. 87. And consequently the plaintiff's right still
exists in full effect, unless the new sovereignty created within
which the lands are situate had taken some steps to abrogate it.
The title remains after the revolution, and erection of the new
government, the same as before."
This case was decided in December Term, 1857, and it is believed
that no case in Texas has held the
Page 98 U. S. 497
contrary since that time. The same views were expressed, and
many authorities cited in support thereof, in
Kilpatrick v.
Sisneros, 23 Tex. 130, 134, decided in 1859; also in
Sabriego v. White, 30
id. 581-584, decided in
1868 -- all which cases are recognized in the late case of
Andrews v. Spear, 48
id. 567.
We think, therefore, it may be regarded as settled that the
severance of Texas from the Republic of Mexico did not divest the
title of Aguilera to the lands in dispute.
This conclusion disposes of another point in the case -- the
question as to the validity of the act of sale passed on the
twelfth day of March, 1836, from Aguilera to Anna Matilda Massieu.
Notwithstanding the existence of hostilities between Texas and
Mexico, it was competent for one citizen of Mexico to convey to
another, both residing and being in Mexico, lands situated in
Texas. This point was settled by the late decision of this Court in
the case of
Conrad v. Waples, 96 U. S.
279. We may assume, therefore, that at the time when the
Constitution of Texas was adopted on the 17th of March, 1836, the
lands in dispute rightfully belonged to Anna Matilda Massieu, who
was then an infant, and a citizen of Mexico residing in the City of
Mexico.
Then did the Constitution which was adopted on the 17th of
March, 1836, divest the title which Anna Matilda Massieu had
acquired? We have already quoted its language, and have seen that
whilst it declared that aliens should not hold lands in the
republic, a reasonable time should be given to them by law to
become citizens or to dispose of their lands.
It seems clear, therefore, that the Constitution itself did not,
proprio vigore, divest the titles of aliens, especially
the titles of those Mexican citizens who had become aliens by the
course of events. It was left to future legislation to provide the
mode and manner in which such divestiture should take place. This
view is sustained by the cases already referred to and by many
others that might be cited on the subject. We may assume,
therefore, that Anna Matilda Massieu continued to hold the title to
the lands in question after, as well as before, the adoption of the
Constitution on the 17th of March, 1836.
Then came the Act of Jan. 28, 1840, already quoted, removing
Page 98 U. S. 498
the bar of alienage in descents and giving to aliens and alien
heirs nine years to become citizens of the republic and take
possession of their land or nine years to sell the same "before it
shall be declared to be forfeited, or before it shall escheat to
the government."
This law being passed whilst Anna Matilda Massieu was lawful
owner of the land, gave her nine years to become a citizen, or
dispose of the same before it could be forfeited by proceedings at
the suit of the government. Of course, after the nine years should
expire -- namely, after Jan. 28, 1849 -- the land would be
forfeitable if the legislature should, in the meantime, provide a
proceeding to be taken for declaring such forfeiture. The common
law, so far as not inconsistent with the Constitution or the acts
of Congress, was adopted as a rule of decision in Texas on the 20th
of January, 1840, to take effect on the 16th of March thereafter.
But it is not perceived how this could materially affect the case
under consideration, which was already provided for. The common law
doctrine respecting alienage as affecting title to land was
superseded by the Constitution of the republic and the statute
referred to.
The next modification of the law was made by the state
constitution of 1845, which by art. 13, sec. 4, provided as
follows:
"All fines, penalties, forfeitures, and escheats, which have
accrued to the Republic of Texas under the constitution and laws
shall accrue to the State of Texas, and the legislature shall by
law provide a method for determining what lands may have been
forfeited or escheated."
This provision only renders it still more clear that the
legislature must first act before any proceedings can be taken to
annul the title of an alien or any other escheatable titles. Under
this provision, it has been held that, since its adoption, no
locations can be made upon lands held by aliens on the ground of
their title's being void, since no law has been framed to provide
the means for declaring forfeitures for alienage.
Hancock v.
McKinney, 7 Tex. 384;
Swift v. Herrera, 9
id. 263;
Johnson v. Smith, 21
id. 722;
Luter v. Mayfield, 26
id. 325.
The only law which has been passed relating to proceedings for
enforcing forfeitures and escheats is that of March 20, and which
went into effect April 29, 1848. But this only relates
Page 98 U. S. 499
to the case of escheat when a person dies without heirs, and
cannot apply to the plaintiffs if they were capable of inheriting
from Anna Matilda Massieu in August, 1851, at the time of her
death.
As to this point, we have seen that the Act of January, 1840,
declared that, in making title by descent, it should be no bar to a
party that any ancestors through whom he derives his descent from
the intestate is or hath been an alien. This law would seem to be
the legitimate result of the status of aliens with regard to title
to lands in Texas, the prohibition to hold lands being provisional
only, not operative, unless they failed to become citizens, or to
dispose of their lands, within nine years, and not even then until
regular proceedings should be provided for and should be had to
annul the title. The later cases in Texas have fully established
this doctrine. We refer particularly to the cases of
Sabriego
v. White, 30
id. 576;
Settegast v. Schrimpf,
35
id. 323; and
Andrews v. Spear, 48
id.
567.
From this review of the law of Texas it would seem indubitable
that the title of the plaintiffs to the land in question is free
from objection on the score of alienage.
Then have the plaintiffs a right to vindicate their title in the
courts of justice? Several cases have undoubtedly decided that an
alien cannot sue for lands in Texas. The last case referred to is
that of
White v. Sabriego, 23 Tex. 243, which presented
the naked question of alienage as a bar. The court, however, stated
that under special circumstances, aliens may sue -- that is, under
circumstances which entitle them to hold land, as where they have a
title emanating directly from the government or where they acquired
land by descent or purchase before the division of the empire and
the change of government. In the subsequent case of
Sabriego v.
White, 30
id. 576, involving the same title, the
plaintiff showed that the land was granted to her mother before the
revolution and that her mother (with herself) removed to Matamoras
during the revolution, and her mother died there in 1842, and that
the plaintiff had ever since continued to reside in Matamoras,
remaining a Mexican citizen. The court held that the plaintiff
lawfully succeeded to her mother's rights and retained her title to
the property, no office having been found to forfeit it,
Page 98 U. S. 500
and hence that she was entitled to maintain her action. The case
of
Jones v. McMasters, supra, is also a case in point on
this question, it being there held that alienage was no bar to an
action if the title of the alien was good and the title was held
good as against third persons until office found and a judgment of
forfeiture.
Our conclusion, therefore, is that the objection to the right of
the plaintiffs to vindicate their title in the courts, as well as
the objection to the title itself, were properly overruled.
The next question is whether the plaintiffs succeeded in proving
the title by which they claimed the lands in dispute.
To prove the original grant from the government of Coahuila and
Texas to Aguilera, the plaintiffs at the trial offered in evidence
a certified copy from the general land office of the Spanish title,
consisting of Aguilera's petition for eleven leagues of land on
Trinity River or elsewhere, the act of concession, dated March 20,
1830, the petition for possession in September, 1833, the reference
for a survey, the notes of survey, and the title of possession,
dated Nov. 26, 1833, executed by Vicente Aldrete, commandant at
Nacogdoches and general commissioner of the government, in the
presence of two witnesses.
The imperfect condition of the record does not enable us to
understand clearly whether or not, in addition to this certified
copy, a testimonio of the title was also offered in evidence. From
a translated copy and the fact that the Spanish original thereof
was waived by the parties and not inserted in the record, we infer
that such a testimonio was offered. From the translation referred
to, it appears that this testimonio was verified by the signature
of Aldrete and two assisting witnesses named Rodriguez and
Perez.
This paper purported by certificates thereon to have been
recorded in August and October, 1870, in the Counties of Anderson
and Freestone, where the land lies. The only authentication of the
instrument at the time of recording consisted of an affidavit made
by one R. D. Johnson, at Galveston, in 1857, that the residence of
the subscribing witnesses was unknown to him, and a joint affidavit
of one Taylor and one Edwards, made at Nacogdoches in 1857,
deposing to the genuineness of Aldrete's signature.
Page 98 U. S. 501
The defendant objected to the admission of this evidence of the
title as an authenticated and recorded instrument. The objection
was overruled.
The admission of this evidence forms the basis of one of the
errors assigned. If the accessory circumstance of the title having
been recorded in the proper counties in 1870 had been a material
fact in the determination of the cause, its admission as a recorded
title would have made it necessary for us to examine the
sufficiency of the affidavits in virtue of which the recording was
made. But from the view which was taken of the case by the court
below the recording of the instrument became immaterial, the
learned judge holding that the defendant could claim no benefit
from the fact that the plaintiffs' title was not properly recorded,
inasmuch as both parties claimed the principal tract in question
under titles emanating from the Mexican government, and therefore
as between them the recording acts did not apply. If this position
was correct, the recording of the plaintiffs title was certainly
immaterial; if not correct, the judgment should be reversed. It is
unnecessary, therefore, to consider the question whether that title
was properly authenticated for recording or not, a question which
might give us some embarrassment. The correctness of the ruling
made by the court will be considered further on.
Whether the testimonio was sufficiently authenticated to make it
competent evidence of the title, as contradistinguished from its
registry, it is also unnecessary to decide. It is clear that the
certified copy of the title from the land office was
prima
facie evidence of its existence, for it would be presumed that
the original was an archive of the land office. For the mere
purpose, therefore, of proving title only, without clothing it with
the privileges of registry, the certified copy was sufficient.
But after the plaintiffs had rested, the defendant recurred to
his attack upon their evidence of the grant to Aguilera. He called
as a witness the translator of the land office, who produced the
protocol or original title of said grant and showed that it had
never been deposited in the land office until July, 1873, after the
commencement of this action. The defendant further proved by E. A.
Mexia that he, as agent of the plaintiffs, had procured the said
protocol in June or July, 1873,
Page 98 U. S. 502
from the Governor of the State of Coahuila in the Republic of
Mexico, and had deposited the same in the General Land Office of
Texas in July, 1873. The defendant now moved to exclude the
certified copy as evidence on the ground that the protocol was not
an archive of the General Land Office of Texas, but was an archive
of the Mexican State of Coahuila, and was put in said office by a
private individual without the authority or sanction of any law,
and that there is no law of the State of Texas or of the United
States authorizing the use of a copy thereof as evidence in any
court or judicial proceeding. This motion was overruled, and the
defendant excepted, and the question is again presented here as to
the admissibility of the evidence.
We think the certified copy was admissible in evidence.
By an Act of the congress of Texas passed Dec. 14, 1837, it was
declared
"That it shall be the duty of every person or persons who may
have in his or her possession or control any titles or documents
whatever which relate to lands, and which, by the laws now or
heretofore existing in Texas, have been and are considered
archives, to deliver the same to the Commissioner of the General
Land Office, on his order, within sixty days after the final
passage of this act."
Pasch.Dig., art. 70. The sixth section of the same act
constituted the land office the proper depository of all books,
records, papers, and original documents appertaining to the titles
of lands denominated archives.
Id., art. 71. There can be
no doubt that the protocol of the title in question belonged to the
class of documents here designated, and it does not appear that any
law has ever been passed to prevent such documents from being
deposited in the land office at any time. It is true that a door is
thereby left open for the perpetration of frauds, but fraud is
always open to investigation, and if titles which have been long
kept back from the proper public depository, and whose existence
has thereby been unknown, are not allowed to disturb subsequent
titles acquired
bona fide in the mean time, the
apprehended evil will be greatly diminished. This consideration
renders it important that the position taken by the court below in
reference to the question of registry as between persons holding
under titles issued by the Mexican government should be carefully
considered.
Page 98 U. S. 503
The next question to be considered, therefore, is whether a
bona fide purchaser claiming under a Mexican title is
bound to take notice of a prior Mexican title which is neither
recorded in the proper county nor deposited in the land office.
The defendant in this case claimed title to the 1,855-acre tract
in question under a grant of one league of land dated June 26,
1835, from the government of Coahuila and Texas to one Edward C.
Harris, and by the following intermediate conveyances from Harris
to himself: 1st, a deed from Harris to one Hotchkiss, dated June 9,
1840; 2d, a deed from Hotchkiss to one Vail, dated April 24, 1844;
3d, a deed from Vail to one Mynott and his wife, dated June 1,
1855; 4th, a deed from Mynott and wife to one Kimbrough, dated Oct.
30, 1856, in pursuance of a title bond executed in June, 1856; 5th,
a deed from Kimbrough to the defendant and another person, dated
Nov. 30, 1868 -- all of which deeds were duly recorded. This chain
of title was duly proved, and there was no evidence that the
defendant or any of those through whom he deraigned title had, at
the times they respectively acquired their titles, any actual
notice of the existence of the said grant to Aguilera. Some proof
was offered to show constructive notice, but the ruling of the
court renders it unnecessary to consider it.
According to the view taken by the court below, none of the
persons who thus acquired title under Harris could claim any
benefit from the fact that Aguilera's title was totally unknown and
unheard of and that no trace of it was to be found in any public
office of archives or records in Texas. If this be the law of
Texas, the owners of lands in that state hold them by a very
uncertain tenure.
But we cannot believe that this is a correct view of the law.
However the case may have stood between the original grantees of
Coahuila and Texas -- namely, Aguilera and Harris (and of this we
express no opinion) -- we think that the subsequent
bona
fide purchasers and possessors under Harris acquired an
unquestionable right to contest the unknown and dormant title of
Aguilera, though antedating that under which they claimed.
The Texas recording acts are not so clear and explicit as they
might be, it is true, but in our judgment their tenor and spirit
are sufficient to prevent such great injustice and wrong
Page 98 U. S. 504
as must necessarily follow if they do not apply to such a case
as this.
The Act of Dec. 20, 1836, "organizing inferior courts" &c.,
provided, amongst other things, as follows:
"SEC. 37. Any person who owns or claims land of any description,
by deed, lien, or other color of title, shall, within twelve months
from the 1st of April next, have the same proven in open court, and
recorded in the office of the clerk of the county court in which
said land is situated; but if a tract of land lies on the county
lines, the title may be recorded in the county in which part of
said land lies."
"SEC. 40. No deed, conveyance, lien, or other instrument in
writing shall take effect as regards the interests and rights of
third parties until the same shall have been duly proven and
presented to the court as required by this act for the recording of
land titles. And it shall be the duty of the clerk to note
particularly the time when such deed, conveyance, lien, or other
instrument is presented, and to record them in the order in which
they are presented."
Pasch.Dig., arts. 4980, 4983.
The limit of time prescribed in the thirty-seventh section was
repealed in 1838.
As most original titles in Texas, originating before the
revolution, like that of Aguilera in this case, were public
archives, the parties holding only testimonios thereof, the
following law was passed Jan. 19, 1839:
"Copies of all deeds, &c., when the originals remain in the
public archives, and were executed in conformity with the laws
existing at their dates, duly certified by the proper officers,
shall be admitted to record in the county where such land
lies."
Id., art. 4984.
It seems to us that these provisions cover the case under
consideration. And such is the judgment of the Supreme Court of
Texas. In the case of
Guilbeau v. Mays, 15 Tex. 410, the
plaintiff claimed under a grant of a league of land from the former
government; the defendants pleaded prescription for three years,
and that there was no record of the plaintiff's grant in the
general land office nor in the county where the land was situated;
that they held by patents issued from the government of Texas and
locations of valid certificates, without notice of the plaintiff's
title. The proofs corresponded with this defense,
Page 98 U. S. 505
and the court held it to be a valid one. After reviewing the
laws above referred to and the manifest policy by which they were
dictated, they proceed as follows:
"In view of the legislation on this subject, it is believed not
to be susceptible of a doubt that the grants upon which the
plaintiff bases his right to the lands in question ought to have
been recorded, and their failure so to be recorded or delineated on
the maps or other notice will postpone them to a junior title
derived from the government and will place the defendants in the
position before the court as innocent purchasers without notice,
and in principle not distinguishable from the great class of cases
of innocent purchasers without notice of any prior or superior
titles."
This case is corroborated by the subsequent cases of
Musquis
v. Blake, 24 Tex. 461;
Nicholson v. Horton, 23
id. 47;
Wilson v. Williams, 25
id.
54.
Had the grant to Aguilera been deposited in the land office, the
case would have presented a question of very different
consideration. It is generally conceded that an archive in the
general land office is entitled to all the privileges of an
instrument recorded in the proper county. In the case just cited,
the court said:
"Now in cases of title emanating from the government, where the
patent or testimonio had not been recorded in the county where the
land lies, the archives of the general land office and the maps of
survey, and the records and maps of the county surveyor, would be
regarded as notice that the land was appropriated, and was not a
part of the vacant domain of the republic."
"
See also Byrne v. Fagan, 16 Tex. 391;
Chambers v.
Fisk, 22
id. 504;
Wilson v. Williams, 25
id. 54. But here, all the transfers of the Harris tract
took place before the Aguilera title was either recorded or
deposited in the land office. Under these circumstances, the
plaintiffs should have been required to show that the defendant and
those under whom he claimed had either actual or at least
constructive notice of their title at the time when they
respectively purchased; but the court required neither, holding in
effect that the elder title was entitled to preference without any
notice of its existence."
Of course, buying with actual notice of a previous title or
under circumstances which make it a duty to take notice is a
Page 98 U. S. 506
fraud, and deprives the purchaser of the immunity arising from
the fact that such title is not recorded nor deposited in the land
office.
Crosby v. Huston, 1 Tex. 203;
Grumbles v.
Sneed, 22
id. 565.
By a late law, passed Oct. 20, 1866, a title not deposited in
the land office and not recorded will no longer avail as against
certain descriptions of title without actual notice. The act is as
follows:
"Titles to land which may have been deposited in the general
land office subsequently to the time when the land embraced by such
titles had been located and surveyed by virtue of valid land
warrants or certificates shall not be received as evidence of
superior title to the land against any such location or survey
unless such elder title had been duly recorded in the office of the
county clerk of the county where the land may have been situated,
prior to the location and survey, or the party having such location
and survey made had actual notice of the existence of such elder
title before he made such location and survey."
Pasch.Dig., art. 5825.
Whether this law can properly be extended to protect any other
titles than those based on land warrants or certificates may be
questionable. But it is not necessary for the defendant to invoke
the aid of this law; he can stand on the fair construction of the
laws of 1836 and 1839. The title which he is called upon to combat
was not to be found either in the land office or in the records of
the counties, the only public depositories to which the people
could resort to ascertain what lands have been granted and what are
vacant and free, and he may well insist that if he and his several
grantors had not actual, they should at least have had
constructive, notice of an elder title in order to be affected by
it -- something beyond the mere fact of its existence; some legal
indicia or evidence of that existence deposited in some proper
place which he was legally bound to find, and which, in the
exercise of ordinary diligence, he might have found and relied
on.
Many other questions are made in the record, but as this is a
controlling one, we have thought it unnecessary to discuss them. We
are satisfied that the judgment must be reversed with directions to
award a new trial, and it is
So ordered.