The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-02-02

In the absence Of proof, il il a strong
presumption that they were settlers there
lawfully 4; that is, under Mercer and tbs
Texas Association; not as trespasser:
and squatters.
Besides this presumption. do not re.
gard il Is absolutely Necessary that every
settler who located IN the Mercer colony
should have been previously personally
solicited and induced thereto by Mercer
or his agents. The contractors could
not have so contemplated.
one settler would naturally induce 9th
ers, and the advertisements and maps and
advantages and improvements would Ger
tainly aid in the scheme OF colonization
and settlement.
The repOsitions offered by the defend
ant upon this subject (Which are amenable
TO the charge of incOmpetency, rs hearsay
evidence. butt though given full force as
evidence, are not strong enough to rebuff
this presumption in favor -Oi law and
order.
The witness knew. had heard, of no one
who claimed 10 have been induced TO set
tie by Mercer or hiss agents, or under the
Mercer colony grant.
Aud it night he noticed, under the law
OF 1880, il was not necessary. in order "a
receive the donation offered by the state
that they should claim under Mercer.
And IL is plausible to say that, under
the hostile attitude evinced by the people
of the state at that time towards the col
OnizatiOn contracts, many settlers might
have been deferred from claiming under
obnoxious titles, particularly when such
claim was wholly unnecessary.
The allegations in the amended bill OF
complainant, are also, in the main, estab-
liShcd, except in relation TO the cOnspir-
acy alleged between the defendant and
Governor Roberts. and IN relation to the
charge OF contempt for violation of the in
junction heretofore issued in the case.
Upon this last mentioned matter, the
proof fully eXOnerates the defendant.
The defendant shows by the exposI-
1 lions of various witnesses, mostly old set
tiers, that Mercer and his associates had
not complied with the various stipula-
tons and details of the contract in many
small matters, so far as the knowledge OF
the witnesses extended, but this evil
dence is negative, and at this late uate 1t
can hardly raise a presumption. even OF
noncompliance.
In relation to this it may be well to
notice, that by the terms OF the contract
Il forfeiture or determination OF the con-
tract was only 10 result from nOn-per-
Torrance, on the part of Mercer and bis
associates, in relation to the introduce
ton of certain snumbcr of families
within certain fixed periods; for instance,
one hundred families by May (, 1915, two
/ hundred and fifty families within two
years, and one hundred and liily families
within each of the remaining three years
the contract was 10 run.
And further, that no default or deter
minatiOn was to operate otherwise than
prOSpectIvely.
The defedant fails to show the truth Ot
his charge in regard 10 the survey uf1S4H
and the manufacture of The map of that
date.
The remaining allegations of defend
ants anSWCr-ieaVin9 out arguments an
conclusions of Law therein contained
may be considered rs substituted. The
proceedings in the Navarro county court
are proved with the variance that the
suit was brought in the name of y. G.
Horton, acting governor, for the benefit OF
the people OF Texas, instead of, as alleged
in the name OF \. /. Horton, governor.
for and on behalro of the state OF Texas.
and that there il no proof Of service bY
publication or otherwise of the defend
! ants. IL is true that theTerOrd produced
shows that service hy publication was
/ ordered by the court and by the sheriff,
but it does not show how, where or when
publication was made, or that il was
! made at all. The rccit;l in the alleged
Judgment OF the words, "ani il appearing
to the court that service had been per-
I fected.' cannot cure the defect.
IS | understand the law, the record
must show atfrmItiYcly that the forms OF
service provided by law have been CON-
phed with, before the judgment of Il
court, otherwise having jurisdiction. can
have the force Of the thing adiudged.
Certainly the insertion IN the iudgmen
of few words cannot have the tails
manic effect of supplying the want OF SER
vice
/ am not at all certain hui that the
many other glaring defects, on the face of
the record, so far rs proved, or so ably
/ argded by counsel, strike the entire pro-
credings in Navarro county with absO-
lutte nuility. The defects are most GER
tainly very serious relative utilities.
Now, taking the facts as 1 have found
them to he disclosed by the evidence,
am satisfied that the following PROPOSE.
tions of law, as applicable in this case
are clearly maintainlbe
/. The contract made by TIE republic
Of Texas, acting by Samuel Houston
president, on the eighth day OF January
1874, with Charles FcntOD Mercer. was
valid and binding on the republic.
=. That contract created on expires;
trust in favor of Mercer and his assO
riates, fall the Indicated lands then ~
ing within the limits fixed by the contract
tn secure the performance of the con-
tract.
s. That by the compact Of annexation
the state of Texas assumed all the obliga
lions, liabilities and duties, includins
those resulting from the express trust
heretofore bearing on the republic Of
Texas, In relation to said contract with
Mercer
4. That under the constitution of tn,
l United States. and the resolutions anC
compact Of annexation, the state of Texas
has been, and is, without power by any
law, to impair the obligation of said con
tract or the trust resulting theretrom.
=. Neither lapse OF time nor any de
tense analogous to the statute of limita
tons, can be set up by the trustee of al
express trust, or Il defense TO his ability
to execute the trust.
q. That while the ordinance adopted by
the convention in 1915 (Hartley's digest
p. 81 after ratislied Dy vote of the
people, may have conferred power upon
the law officers o. the state to sue for
and jurisdiction on the courts to force
forte lures on the colonization contracts
I, yet that the proceedings had and the
Judgment rendered in the district eOurt
of Navarro county, in the years 1S47 anC
: 1913. wherein A. G. Horton, acting gov
ernor. for the benefit of the people o
Texas, was plaintiff, and Charles FentOI
Mercer and associates, unknown. wer,
defendants, were absolutely null an,
; void, for want of legal notice to tue de
: PENDANTS.
Z. That the state of Texas by law has
} never repudiated the contracts will
Mercer, or the trust resulting therefrOm
8. That the court OF equity has jurisdiC
ton to prevent by Injunction, the waste
alienation or destruction of a trust es
tate.
o. That while the circuit courts OF tn
United States have no jurisdiction L
, entertain Il suit against a. state o
, the union, they have jurisdiction O
! and will entertain suit brought by
/. proper party against an officer of a state
l who, under color of his office, but with
: out lawful authority, is wasting, alienat
I ing or destroying trust estate, althOI. q
the state may be the trustee and remai
; silent.
; 10. That in such suit, where the stat
! Is no party, and yet is declared to be tn
T, trustee OF All express trust, the defendan
is without right or interest to plead i
defense reputation by the trustee, {
shield himself from unlawful conduct.
! The first five of these propositions q
law are laid down by Judge Woods. wei
supported 10y authority. and, rs L hav
= shown, supra. are the law of this case.
The sixth proposition is undIspute
e law.
Hollingsworth v. Barbour, Peters
l 476:
Harris V. Hardeman, IA Howard, 81
See Texas. 4S3; 8 Texas. 1853
2 18th Texas, 647; q Texas, Al;
q Texas. ser.
1 And the case of Treadway v. EastburI
I lately decided. IN. r..
l The seventh proposition is shown
by an examination of the vi
e rious laws of Texas cited on both side
in this case, and might, with safety, z
sec. 10, art. l, OF the constitution O
e the United States, the state could pass n
> valid law impairng the obligations {
; MERGERS contract.