Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 29
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AUSTIN, 1849. 57-58
MIcMullen1 v. I-odge.
a board of land commissioners was appointed, whose dulty it was to determine
claims arising from orders of survey lu:der the colonization laws anl tills section
of tie Constitution. as well as all claims for' litadright certificates arising
under the provisions of the Constitution.
Tile twenty-fourth section of tile samen, act confirmed all titles issued to colonists,
under the colonization laws, by thei commissioners to the extent of a
league an(l labor.
On the 29th of January, 1849, tlie traveling board of land commissioners
was established. By the fifth s;ctiol of tilis act tle commissioner was prohibited
from issuingo patents, under a penalty, except upon certificates issuing
from tile last board, or by alutllolity of a warrant issued for military services,
or a certificate issued by a special act of Congo'ress.
By an act of 1841 this power was conlferred( upon the District Court, and tlle
power of acting ulpon the cer'tifi:ttes issued by the first board of land commissioners
expired Jly 1 11847. Tilhe District Court now only possesses the
power of acting on first-class certificates arising under the Constitution.
By none of these provisiios of the Constitution or laws is tie plaintiff's claim
included. There is no special act confir;inill it, nor is there any general law
confirming or authorizing the tribunals of justice to confirm tlis class of titles.
No provision was ever made for tlhe confirmation of the claims of land beyond
a league and labor.
lThe adoption of the Spanish or civil law did not recognize titles emanating
from the foriner Government as evidence of riolgt to land against a title
derived from the Republic. Had this b^en tle case it would not avail the plaintiff,
as the laws under which his title originated were not in force at tlhe time
of the ratification of tie Constitution, and consequently were not adopted.
The Spanlish laws were all superselede and repealed, except those relating
exclusively to the colonization of elands in Coalluila and Texas, on tle 24th of
January, 1843, by the adoption of the common law.
[t5] The common law has betl in force il this country since 1836, so far as
relates to testimony. (Acts of 1833, p. 158, sec. 41.) Then since tlhat tine no
title or documenllt purporting to be: a title to lands could have been received ias
evidence of right to l:lladt unless declared such by statute or was so by the common
law of England. No statute of the Republic or State of Texas has ever
declared talt a title emanating from the Government of Spain or Mexico should
be considered as evidence of rig-ht to l1and by the courts of the State as against
persons deriving titles from the Republic or State; and the common law recognizes
no title to land which does not proceed from the sovereignty where it is
in force.
The common law gave tile right of action by ejectment, and an act of the
5th of Februiary of tlle same year abolislhed all fictitious proceedings in the
action of ejectment. (Acts of 1849, p. 133.) This act ' provided a mode of
trying titles to lands,' bitt did lnt declare what should be considered as evidence
of right to land. As the common law required every person who sought
to establish title to and recover lan1d in the possession of another to lderignl his
title from the sovereignty, and stucth a title as showed that the sovereignty Iiad
parted with the fee in tlhe premises before lie could recover, there were many
species of equitable title upon which persons could not recover the possession
of lands of those who lhad no claim whatever to them. For instance, such
lands as had been located, or located nd a surveyed by virtue of valid certificates,
and, as we contend, those which were claimed by titles emanating front the
former Government, but not confirmed by the Republic, would not enable the
party to maintain an action of c'jectmenlt even against a mere naked possessor.
Therefore the 23d section of the act of 1841 provided "that all certificates for
headrighlts, land scrip, bounty warrants, or any other evidence of right to land
recognized by the laws of this Goverllnent whicl have been located or surveyed
shall be deemed and held a sufficient title to authorize the maintenance
of actions of ejectment, trespass, or [I59] any other legal remedy given by law,
all laws to the contrary notwithstanding.' (Acts of 1811, p. 170, see. 23.)
29
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/37/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .