Texas State Gazette. (Austin, Tex.), Vol. 4, No. 35, Ed. 1, Saturday, April 16, 1853 Page: 4 of 8
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TEXAS STATE GAZETTE.
SUPREME COURT. .OF TEXAS.
fiBlHS jtejJfcjrjft at Galveston Ja'tiMary. Tcrriu 185.
MlODJrlUJNT et. al vs. TURNER et. al.
JMn Justice Lipscomb delivered tho Opinion of thd Court.
Thifl'suit was brought by tbo appellants to recover a league of
i . - .-;... -...
Hand granted by tllo government of ooaliuila ami icxas to William
R. Hunt as a colonist in Austin's colony The pluiutifTs claim one
"ofSiferh'.td b0 tne widow and tlio other chtltlroii oj thet said William
Rljfftio grantee. Tile defendants claim under one Robinson.
'Thb following are the material facts collected from tlte record :
'The land sued for was granted to Hunt who in n short time sold it
taRobinsonpd received in exchange for it six hundred and forty
acres of land one hundred dollars and n horse the vdlue of which
wna not in evidence. Hunt went into possession of the land sold to
him by Robinson J this was the lltn December 1832 and Robinson
went into possession of tho league and made a small improvement
Aipbit jt;and then left it and resided at his old place until his death ;
tiiereTwas no evidence of any continued possession until 1838 though
itjiad b.ecu frequently occupied ill the mean time and considerable
"improvements made on it but under what title is not in proof. From
1838 down to the trial it was claimed under Robinson. It is in evi-
-denco that thp present defendants at the time they purchased
at)oijt J8-11 had notice than it was claimed by the plaintiffs. The
"plaintiffs remained upon the land received from Robinson making im
provements on the same down to 1843 and exercised ownership by
renting it oiitdown toPeb. 12th 1850 when they sold it to one Car-
tyor..aiter tnoy naa commenced this suit it was in evidence and not
controverted that thd land received by Hunt from Robinson was
- worth' more than Hunt's league; A deed purporting to bo for
the '.consideration of three hundred dollars for si hundred and forty
sacre's of land from Cummingfi to the plaimfls dated 1st" df
April 1841 was read in evidence by the plaintiffs but no evidence
was given that it was tho same- land that Robinson had deeded to
The record is1 so imperfect that it is impossible to ascertain from it
what were theissiies that went to the jury however it is understood to
"Ue admitted by the counsel for the parties that all were stricken out by
tho court upon the plaintiffs' exceptions but two one being the plea
of. not .guilty and tho othcri possession in good fuith and valuable im-
provements made. There are oulv two errors assigned thnt we re
gard as material to bo noticed.
lurst admission of special matter in avoidance under the plea of
hot guilty ; and second the rejection of the evidence of the plaintiffs
jtp' prove tho converture of one of the plaintiffs and infancy of others
to .bring them within the exceptions to the statute of limitations.
Xheplaintiffs offered this testimony by way of rebuttal to the evi-
dence of the defendant to sustain the bar of the statute. This they
clearly had a right to do and it is not perceived why it was rejected
find for this error we would be bohnd to reverse the judgment if we
rested our opinion on the statute of lilimations; but it will bo seen
hereafter that this ground of defence is thrown out of our considera-
tion and it may be admitted that the defendants. did not make out
tho defence. With this admission jf tho judgment cannot be sustain-
ed it ought to bo reversed.
Tho appellants object to the rulling of the court admitting special
matter. of defence under the plea of not guilty. This being an ac-
'tion to try titlo to laud there can be ho question that under the
;art.$3235 of tho Digest the evidence was admissible. It was so
decided by this court in Punderson.vs. Love 3 Texas 50. Tlio ma-
terial facts in this case were specially plead by the defendants but
their plea was stricken out by tho court below. On tho exception
"to.the plea taken by the plaintiffs we presume that the court was in-
fluenced by tho consideration that those facts could be given in evi-
i)cncea under the plea of not guilty. That such matter could be so
given' in evidohce is not sufficient reason for objecting to those mat
'tersibeing specially plead. It is certainly a hater mode of presenting
"tlierri and more in .harmony with our general system of practice as it
'advises the opposite party of the grounds of defence and pre-
vents a surprise by the introduction of evidence not anticipated and
thereforo could not have been objected to by the plaintiff. We will
now proceed to examine those matters of defence and see if thev
sustain the verdict and the judgment in this case which we are call-
eiLupon to. revise. The statement of the facts has already been re-
cited and will not again ba repeated only so far as may be necessary
to make our views of the law applicable to and resulting from tjiem
nwrg clearly understood. The contract of sale and exchange between
Hunt and Robinson by which Hunt sold to JXobinson the land
ih controversy and received from him in paynient six hundred and for.
ty acres bjMher land which was conveyed to him by deed and tho"
further consideration of ono hundred dollars and a horse so far as it
"related to the land iu. controversy was illegal and void because it
. was entered into at a time when Hunt was forbidden by law to
'alienate the land. It was so held by the court m Hunt's heirs vs.
Robinson's heirs. The record of that suit has been made a part of the
eyjdence in this case; from which it appears that Huntut the time ho
.entered into tho contract of sale did not give Robinson a deed for
tho land but gave his bond for title. Tho suit was brought by tho
heirs of Robinson to compel a specific execution of this contract.
.This court-on un appeal refused a specifiic performance on the ground
'that it' was in contravention of law and void and the decision and
'judgment was based solely.upon the ground that the bond for title
was illegal because tho salo was forbidden by la.w. Tho court did
k"np;pass upon the equities that may have arisen between the parlies.
"KccswSvT.u sUuii Issue was presented in tho case. At most it only deter-
mined the legal titlo to be in the heirs of Hunt. Now the legal title
. may be in one and the e'quitablo titlo growing out of tho acts of the
- parties in another. It is an acknowledged principle in equity thatcourst
exorcising equity jurisdiction will sustain such equities against the legal
title and suspend tho enforcement of suoh legal titlea or hold that tho
legal title shall be considered as in trust for tho benefit of the one
JSldi"S tllG equitable tjtle and if. the equities are made out it will
always require them to be satisfied before tho leirul title can ha en.
-forced A contract may be void under tho statute of frauds yet if
uiD.uuimuBim mo(pariy seiung up the invalidity of tho contract has been
'Buchras to raise an equity outside of and independant of the contract
.'and .nothing else will bo adequate satisfaction of such equity it will
sustain the sale though not valid under the statute of frauds It
;wasu6o ruled by the Court at Tyler April Term 1852 in the case
of Dugan s heirs vs. Colvill's heirs. Again the rule is well establish-i-ety
that the party to an illegal contract will not be permitted to avail
himself of its illegality until ho- restores to the other party all that
haMbeen recievfcd from him on such illegal contract that so long as
'.WjContinnes to hold on to enjoy the advantagesof the contract he
shall not be allowed to sot up to his advantage its nulity nd it is
l1 J&?1 ihal 8 pperntivo against feme coverts and infants
-Womaok ys;Womack Tyler April Term ; 1 852. Means vs. Robinson
imtl wife.'Powol vs. Cumings Galveston January Term 1852.
We will now' apply these principles to the fact that Robinson and
his heirs were permitted to tako possession of tho land nn.i m mi..n
h&rHmProV(!niems' and not a word said nbont enforoiug tho legal
ffiMB tw laid hy Hu.nt nor his heirs nt 1841 about uino years
ifvmmwmiixwymm cigni nuer tno cieatfiot limit ; and that Hunt
w?nt:into possession of thp. land convoyed to him by Robinson im-
ai8gSlWy'.ond.c W0.Whout.ayear.aftor that his heirs contin-
49lv.e on.it made improvements and trcedit asthcir.own tin-
tiPl850 ami then sold it mid in their deed to the purchaser described
it as the same land deeded to Hunt by Robinson in 1832 and the fur-
ther fact that this lond is worth more than tho Hunt league the sub-
ject of this suit. Will not these factSiUtider the principles laid downi
raise an equity that will over-ride tho legal title of tho plaintiffs to
the land sued for? Wo have no hesitation in saying that it does.
And it does seem to us that tho moral sense of what is enjoined by
equity and good conscience must be exceedingly obtuse to suppose
8ticl flagrant injustice 'could receive the slightest countenance from
any judicatory howevdr organized. .
Wo believe thatUhe deed from Cumings to the plaintiffs is not en-
titled to any consideration own if it had been shown to be for the
same land conveyed by Robinson to Hunt. It was not made until'
long after the death of Robinson and after the plaintiffs hsd been
near nine years in possession under Robinson's deed and in the con-
veyance made by the plaintiffs to Carter they do not describe the lands
as the same conveyed by Cumings but as the same conveyed by Rob
inson to Hunt and they never offered to re-convey the land to Rob-
inson iu his life time nor to his heirs after nis death.
There is another point presented in this case that we consider
equally conclusive against the plaintiffs that is that by tho sale of the
land jrecieved by Hunt' in payment for his head right after the
parties were all of age they have deprived themselves of ability to
restore it and place Robinson's heirs in the same condition they were
in before the contract was entered into ; this cannot be regarded iu
any other light than a virtual ratification of tho contract after all legal
disabilaty had been removed and. although the legal title to the league
in controversy might be still in the plaintiffs yet it was as the trustees
for Robinson's'heirs and those claiming under them. Had all oftliose
facts been alleged in an answer in the'nature of a cro9s bill and the
defendants had prayed that the plaintiffs should bo decreed to convey
the title and those facts found by tho jury we should without any
hesitation have held thnt they were entitled to sucili decree bin. the
defendants have not asked such decree and remained upon tho defen-
sive only and by the verdict of tho jury in their favor have obtained
all- that couldjiave been awarded to them under the pleading and it was
only by becoming the actors that they could have obtained more.
It cannot however bo very material where the legal title is as it is
only held in trust whereeveritmay bo for tho benefit of the defandunts.
The judgment is affirmed -
THE STATE vs. HENRY BOCK and others.
Justice Lipscomb delivered the opinion of the Conrt.
These suits were brought to recover the penalty for failing to pay
the occupation tax imposed by the act to raisoa revenue passed on
the 28th April 184G Art. 3117 Hart. Digest. The defendants de-
murred to the several suits ; and the demurrers were sustained bv
the court and the State appealed.
Iu support of the judgment of the District Court it is contended
that the act imposing a tax on the occupation of retailing goods of re-
tailing spirituous liquors and of keeping a ten pin alley repugnant to
the Constitution and void.
In the case of the State vs. Stephens 4 Texas 137. we decide
that " there can be no doubt that tho quarterly return could be legal-
ly required from the defendant as an occupation tax if he was engaged
in buying and selling merchandize or receiving the same for sale as'ar.
agent or auctioneer." This decision applies to each of the above cases.
The conrt therefore erred in sustaining tho decision and the judgment
is reversed and the cause remanded in each of tho cases stated.
THE STATE vs. A. J. WAID and others.
Justice Lipscomb delivered the opinion of the Court.
The above stated and numbered cases were all instruments under
the statute of 20th March 1848 Hare Dig. Art. 1474 for playin"-
at a game of cards upon which money was bet.
The District Judge quashed the indictments supposing that the of-
fence was not sufficiently described. Wd believe that the indictments
substantially follow the language of the statute and we have uni-
formly held that to be sufficient. The judgment of the District Court
in each qase is reversed and the cause remanded.
The Washington Globe is exceedingly angry with tho whole
tribe of rappers and like our ancestors wlio persecuted the
witches desires that they should be signally punished in some
way. It begins its denunciation thus :
" Had it been suggested to us three or four years ago that
such a transcendent toolery and vile imposture as the spiritual
rappings could by any possibility have received the credence
and tho patronage it has we should have been utterly incredu-
lous and have laughed at tho suggestion and tho suggestor.
The manner in which this delusion on the one hand and de
ceptjon on the other has extended itself and made professors
proselytes and unbelievers by hundreds and thousands is ap
palling. Nor has the delusion been confined entirely to the
ignorant and uneducated classes ; so. far from it that persons
with passable literary pretensions and acquirements ministers
of tho gospel many of whom more mental firmness and perspi-
cuity would have been expected havo credited and counte-
nanced this most amazing humbug. And what is very remark-
able is that th.e two State's where tho schoolmaster has most
circulated probably and where more pains havo been taken
and more money expended in teaching ' the young idea how
to shoot'; New York and Massachusetts are the two in which
of tho rappings as it has come to be called we
nost flourished." '
believe has tho most
Tho Globe closes by saying that " this imposture ought to be
taken in hand by tho guardians of tho law.' But there aro two
or three difficulties in the way of tho summary mode of dealing;
with "the delusion" proposed by our cotemporary. In tho
first place it may not bo altogether an imposture but a very
simple physical fact which tho principles of science aro ade-
quate to explain and in tho second place tho believers in it
are so numerous in these parts that it would tako not only all
police of tho city but tho small remnant of a United States ar-
my at Governor's Island to arrest tho delinquents.
Besides wo aronot certain that tho judges on tho bench aro
not as much tainted with tho credulity as tlio rest of the com-
munity and would therefore look with no unfriendly eye on
the offence. The truth is that there is hardly a circle of friends
in this vicinity which 1ms not had more or less experience in
tho phenomena which are called spiritual rappings. They havo
become tho sport of ovoning parties and excite no other feel-
ing but curiosity on tho part of any ono. Two or three younn-
persons gathered together for amusomont can easily produce'
tho wonders of table-moving and tho mystery of knocks on tho
wall. Wo know it to havo been done in a largo number of in-
stances in which there could bo no collusion or decoption and
hardly a day passes in which wo do not hear of new cases.
Tho cause of those ofiects however wo aro unablo to explain'
although wo see no grounds for tho thoorywhich ascribes thorn
to spiritual agency out bcliovo on tlio contrary that they are!
pnysiciu pucnoinonu fiimcopuuio oi a sciontuic solution
REMARKS OF AIR.. ARMSTRONG
On tho bill in relation to Peters Colony delivered in tho
Stat Senate January 20 1833.
MR. ARMSTRONG: Mr. President I do not feel disposed to
occupy much oLthe Senate's time already too long detained by the
discussion. I was one of those who reported tho bill recommending
the repeal of the laws passed since tho adoption of the Ordinance in
1845 relating to Peters' Colony. In reviewing what has been said
and argued against the repeal I find 'sufficient evidence of the neces-
sity and justice of sustaining the report of tho committee by repealing
The contractors have failed entirely ir. all their undertakings and
tho colonists of Peters havo repudiated and resisted the operations of
the last law The people of the colony rejected the offers of the law
refused to receive its benefits and in their mass meetings passed indig-
nant resolutions; publishing their unanimous refusal of the privileges
and benefits intended 'to be conferred on them by the said law. They
iu their mass meetings denounced the legislature for their proceedings
respecting tho colony. The colonists became angry furious riotous
ami niter deliberating calmly proceeded to extremes of reproach
against the legislature whose only intention was to confer benefits
on them. They even abused and deridtd the motives of the legisla-ture.-
They openly resisted compliance with the law and seized the
books of the contractors. They had received such immense benefits
such unexampled favors that they lost their balance. Their good
fortune bewildered them and dethroned all reason and converted hu-
man beings into a multitude of wild buffaloes infuriated with rage
they tore up the trees gored the earth and lashed their sides with
their many tails. I say this is a description in part which the hono-
rable Senator has given of the colonists ; at least he has lead me to
draw this picture by ln's remarks.
There must be two parties to a compact of agreement of any kind.
In case of grants there must be a party granting and a party'receiv-
ing the grant ; aud if tho party grouted to refuses to receive the grant
the patty granting has not parted with his right of property.
The people of the colony refused and rejected the grants intended
by the law and of course the State has not deprived herself of the
things intended to be granted. The State offered the :olonists re-
jected. Now we can take back or resume the control of the same
in the same way as if nothing had been done by the legislature.
And to make known that the-State as well as colonists recedes the
repeal of the law is the legitimate mode of making known the intention
of the State thereby placing all parlies as nearly as possible in the
same situation they were at first. And a repeal of the law demand-
ed as it is by the colonists is just. We cannotora: them to receive
a grant or privilege. Let us cease trying to force them. Let us re-
peal the law. Even were we to manifest our intention to recede -it
would be sufficient; but a repeal of the law is the legitimate mOdo
of acknowledging our notice of their rejection of the privileges in-
tended to be conferred on them. It is the same between a State and
any of her citizens as between.any other parties to a grant or conces-
sion. If the party intended to receive the grant refuses then there
is nothing passed from the grantor to the said grantee. I say wo
have the constitutional right to repeal the law on that ground if none
The repeal is the resumption of the grants. Senator Bogart would
lead me to no other conclusion than that the people of the colony all
and every one have joined in every act manifesting opposition to the
law and have called very loudly and clamorously for the repeal.
Now let us repeal Mr. President. I opposed the passage of the
law and still urge its repeal. Senator Bogart admits that the colo-
nists assembled in a hostile manner on the banks of the Trinity to
oppose the execution of tho Taw but says they were instigated by
demagogues. The Senator certainly exhibits in his own self a case
of forbearance unexampled. He justifies the colonists although they
condemned and crucified him for saving them. They have denied
the acts of their agents and representatives in tho procurement of tho
gra?Us and privileges and done every thing a people could do deny-
ing their connection with the acts of the legislature passed at the
last session. Why not now repeal tho law 1 If they were to seek
for further legislation the legislature would require special authenti-
cated powers from all interested to enable that body to act touching
them. They bite tho liberal hand extended for their benefit. How
can we ever know what they really want ?
Senator Bogart has argued and advocated their cause stoutly and
manfully. They have condemned him and his acts and ho now
stands up here to excuse and defend them notwithstanding. here
say that the colonists have by themselves and agents repudiated the
law. In order' to manifest more completely their unanimous opposi-
tion to the law they imported info the colony as Senator Bogart
would have us to know a very valiant unadulterated son of old
Demagogue himself. He was travelled and trotted through the coun-
try to the great satisfaction and gratification of the colonists being
rubbqd reached and nicked and stimulated by the application of a
pepper pod ho aroused the indignation of the colonists to the loftiest
height against the legislature; und report says that his zeal was
even increased so that while at the city of Austin' on a railroad ex-
pedition he loaded the legislature with reproach. The colonists and
himself alone were pure as he would have it; and the colonists ap-
proved his sentiments (wonderful developments) and expressions.
And Senator Bogart would havo usno know that man was elected
to an imnortant-and lucrative office lv t! nimoi ;. ransidrmticn
of his speeches against the legislature and in consideration of his havr
ing so truly represented their will. Now let us repeal tho law!
Let us repeal ! Give them repeal and restore an empire of territory
in value too enormous for figures to enumerate. Restore to our State
such an immense territory ravished from her. Texas has been robbed
of a wealth incalculable. Will we longer delay repeal and restore
that colony to reason and the State to her rights of which sho has
been so long deprived? The immensity of their good fortune ended
in their general delirium ; aud like Lo Sage's Devils they worried
each other because they were too full. Now let us repeal it.
Mr. President enough on that. There are o.her mid stronger rea-
sons for the repeal. By tho passage of the acts relating to Peters'
Colony the rights of the old colonists of Texas of tho later colonists
of the republic and of the public creditors were violated and taken
away. I repeat that the eatly emigrants the citizen soldiers the
public creditors and all classes of laud claimants deriving their claims
from tho Government previous to 18-l are by theso Peters' Colony
laws.sought to be repealed ousted and deprived of their rights of
location upon the vacant and imuppropriated lands in violation of
the Constitution of tho Republic of Texas and in viotntion of tho
ordinance of the people in 18-1G. Such early emigrants who had not
received their quantum of land such citizen soldiers and public credit-
ors were promised the vacant lands to locate upon. The public faith
from tho first declaration of the people asking and calling for help
from abroad aud at home in the year 1835 stands pledged that tho
2nibhc domain tho vacant land shall bo tho reward of thoso who
came in tho day of distress to our assistance; and yet they aro oxclu-
"Ul iuH l111 vacant iniui to loeato their hard-earned claims upon.
I say that the laws which I hslc to havo repenl6d aro unconstitutional
and void Ihey deprive tho mtizon soldier and imblic creditors of his
common right in tho vacant land; his joint right in common with
citizens generally to locrila his lund where ho might think fit oven in
the territory taken away from him. I say all tho public domain was
hold out to the oarly omigrunt tho citizen soldier and pnblia creditor.
I ""'"I .. i 4 "l
illrfwJ 1 1 " III.
.. i M ... Mttim ta.iiiMiWMWNMtHmBWillUl'li'1 ' ''""'" ""
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Crawford, G. W. & Hampton, J. W. Texas State Gazette. (Austin, Tex.), Vol. 4, No. 35, Ed. 1, Saturday, April 16, 1853, newspaper, April 16, 1853; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth81079/m1/4/: accessed January 19, 2019), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.