Grant v. Heirs of Wallis , 60 Tex. 350 ( 1883 )

Watts, J. Com. App.

It is settled law that an agreement for the conveyance of land in Texas, made before the final title had issued, and prior to the adoption of the constitution of the republic, March 17, 1836, is a nullity, being made in violation of law. Holmes v. Johns, 56 Tex., 49, and authorities there cited.

The agreement upon which this suit is founded was made October 8, 1835, and was for the conveyance of land, the final title to which was thereafter to issue. It was, therefore, made in violation of law and not enforcible in the courts of the country.

As to the written ratification of that agreement, appellant alleges that it was made January 9, 1836. This allegation must be taken as correct as to the date when the ratification was made. And doubtless, as a matter of fact, that was the time at which it was made, for it appears from the record that Wallis died in the state of Alabama in May or June, 1836.

Thus considered the purported ratification was also made in violation of law and could in no way aid the illegal agreement or give it any virtue, force or vitality.

There are no such equities shown or asserted as would sustain the title of Ohamblee against that of Wallis or his heirs. It does not appear that he, or any one for him, ever had possession of the land, or at any time exercised ownership or control over it. On the contrary, it does appear that appellees protested against his right to the possession of the patent, and that they have exercised ownership and control over, and have had possession of, the land for a portion of the time since the patent issued. Atkinson v. Bell, 18 Tex., 479.

There is another view of the case which, it seems to us, is equally fatal to a recovery upon the part of appellant. That is, the certificate by virtue of which the land was secured is shown to have issued by virtue of a special act of the legislature, passed for the relief of Wallis’ heirs. Neither the terms of the act nor the circumstances attending its passage are shown.

In Causici v. La Coste, 20 Tex., 285, it is in substance held that where a legislative grant is not made in discharge of some obligation of the government which the law would recognize, it would not, in a legal sense, be anything more than an act of sovereign grace and bounty upon the part of the legislature. And it matters not how meritorious the consideration that constitutes the moving cause for making the grant, if it is not such as the law would recognize, the grant is but a gift or donation.

If the heirs of Wallis had such rights to the certificate as would be recognized by law, the legislature had already furnished a general remedy through the land boards and courts, by which it could have been secured. It is not to be presumed that the legislature would have passed the relief act if any such right had existed; instead the parties would have been remitted to the tribunals furnished for the very purpose of passing upon such right; and had an adjudication been had adversely to the asserted right, that would have been conclusive against it.

The burden was upon appellant to show the facts that entitled him to a recovery, and among them it was necessary for him to establish that the relief act resulted from a legal obligation against the government.

These conclusions render it unnecessary to consider the various errors assigned, as no other result could have been reached than a verdict and judgment against appellant.

Our conclusion is that the judgment ought to be affirmed.

Affirmed.

[Opinion adopted November 20, 1883.]