Linn v. State (2 Tex. 317, 1847)

Mr. Chief Justice HeMphill

delivered the opinion of the court.

This was an application for one-third of a league of land, sued out under the 11th section of the act of 1841, supplementary to an act to detect fraudulent land certificates, p. 173. This section declares that “ all individuals who are entitled to lieadright certificates of the first class, and who have not yet received them from any of the boards heretofore in existence, are hereby authorized to file their petition, and, upon their going through all the formalities prescribed by this act, obtaining a verdict of the jury in their favor,” etc., etc.

A preliminary question is raised on this and other claims before the court as to the true construction of the provision that the claimant must go “ through all the formalities prescribed by this act,” for the purpose of establishing his claim. It must be recollected that for more than one year before the passage of this law there was no tribunal authorized to investigate claims for headright certificates of the first class. The law abolishing the boards of land commissioners and investing county courts with their powers, expired by its own limitation on the second Monday in January, eighteen hundred and forty, and, consequently, all those portions of the several acts, in relation to the establishment of a general land office, which prescribed the powers of these defunct tribunals, their modes of procedure, the number of witnesses and the facts which must be proven to establish such claims, ceased to have any force or operation, and could only be revived by subsequent legislation in express terms, or by necessary implication. The county court was never afterwards reinvested with the authority of determining upon claims for certificates of the first class. But by the 11th section of the act of 1841, which has been quoted in part, individuals entitled to such certificates were permitted to sue before the district courts without any positive instructions or regulations, other than that they should comply with the formalities prescribed by the act.

This, was the only condition imposed, on compliance with which the claimant was entitled to a verdict, and it is one which is apparently uncertain, from the fact that the formalities referred to are prescribed for the re-establishment of certificates not recommended for patent and not for the grant of an original certificate. It will be seen, however, on a slight examination, that the difference in the character of investigation between the two classes of cases is but nominal.

They are both, in fact, original investigations. The owner of a rejected certificate is compelled to prove his claim entirely de novo, as if it were of the first impression never before established or rejected. The first certificate is in no shape recognized, except that it must be proven to have been obtained and not recommended, but the certificate is no evidence whatever of the genuineness of the claim; and the proof of the facts of its existence and rejection neither prejudices nor benefits the petitioner. The only effect of such proof is to prevent a party, whose certificate had been recommended, from suing for and obtaining another certificate on the same claim. Nothing is to be assumed as proven in the attempt to re-establish a certificate. The two classes of cases stand, then, precisely on the same footing; neither has an advantage over the other.

There is but one condition presented in a suit for the reestablishment of a certificate, inapplicable to the investigation of an original claim, and that is, the proof of the grant and want of recommendation of the former certificate. This would be an impossible condition when the application for a certificate is primary and has not previously been obtained and rejected.

But impossible or insensible provisions in a deed or •statute do not vitiate the whole. They will be rejected and the other portions will remain in full vigor and effect.

On rational principles of construction the claimant, being ■required to comply with all the formalities prescribed by the ■act, should be held to conform to all those required for the reestablishment of a certificate, not inapplicable to an original application.

We have seen that all but one are predicated on the basis that the application is a primary one; or, that all the facts requisite for the grant of the first certificate must be reproven before the grant of the second.

Neither class of claimants had any authority to sue at the passage of the act, and as the legislature required the holder •of a rejected certificate to comply, for its re-establishment, with certain formalities, all predicated on the basis o'f re-proof,