Decourt v. Sproul (66 Tex. 368, 1886)

Robertson, Associate Justice.

The petition alleges that the patent, under which Sproul claims, was issued in 1880, and the plaintiff settled upon the land in 1884. The plaintiff’s object in making the settlement was to obtain a donation homestead under chapter nine, of title fifty-nine, of the Revised Statutes. The last article of that chapter prohibited him from settling upon or occupying any land “titled, or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records, or in the general land office, or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him.” Art. 3951. If the patent is not void, the land conveyed in it is titled, and cannot be surveyed for plaintiff.

The plaintiff alleges that the patent was obtained bv fraud and perjury. It seems that the grantee was the mother-in-law of defendant, Sproul, and that she obtained the grant as the head of a family, and an actual settler upon the land, and it is averred that she was not the head of a family, but was living with her husband, and that she never in fact settled upon or occupied the land. That she made the prescribed affidavit, and furnished the other two required by law, is not denied, but all these affidavits are charged to have been willfully false. If these averments are true, the grant was obtained by fraud, and the question in the case is, does this fraud of the grantee make the patent void or merely voidable. If it is only voidable, the article quoted prohibits the plaintiff from obtaining any right in the land or getting into any position, in which he could have the voidable grant avoided. He is seeking to acquire land as a gratuity, and the state will not allow him to use its grace as a basis of litigation or to disturb the peace of antecedent claimants. He must make his selection of land, which is neither titled, nor equitably owned by a right of record in the land office, or in the county, or evidenced by adverse occupancy.

A void grant is a mere vacuity, its issuance leaves the title in the state. It is void when it conveys what the grantor does not own; when it is made without the authority of the grantor, when it is expressly declared void by law, or when its issuance is conditioned upon the actual existence of facts not existing, and the jurisdiction to ascertain the facts before issue, is vested in no agency of the sovereign. When the patent is void, the land continues to be a part of the public domain, and is open to settlement or location as if there was no patent.

It is well settled by a long line of decisions, that the patent to Sprout’s mother-in-law is not void by reason of the fact simply that she was not the head of a family, and had not settled on the land. In the absence of fraud, the judgment of the commissioner of the land office upon these qualifications is conclusive. Styles v. Gray, 10 Tex., 503; Russell v. Randolph, 11 Tex., 461; Ruis v. Chambers, 15 Tex., 586; Byrne v. Logan, 16 Tex., 392; Johnson v. Smith, 21 Tex., 722; Bowmer v. Hicks, 22 Tex., 155.

But, it must be confessed, that in the earlier cases in Texas the opinion is strongly stated that a grant obtained by fraud is absolutely void. In Mason v. Russell, (1 Tex., 724) the nullity resulting from fraud is classed with that caused by want of jurisdiction in the officer issuing the patent; but in that case, as reported, it does not appear that the grant was attacked for fraud. In De Leon v. White, (9 Tex., 599) the grant was held void because the commissioner extending the title had issued it to his son, himself representing the son. This was held to be void, as a judgment pronounced in his own cause. The grant was also attacked for fraud, but improper evidence was admitted on that issue, and the judgment was affirmed on the ground that the commissioner had no power to issue a title to his son. In Style v. Gray, and Russell v. Randolph, the grants were attacked for fraud, but neither in them, nor in any other case cited, was the title adjudged void on the ground of fraud, even in the hands of the original grantee. In this connection a more cautious use of the word void seems to have commenced with Johnson v. Smith, in which the opinion is quite clearly intimated that the grant cannot be attacked on the ground of fraud when the title has passed into innocent hands, unless at the suit