The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-06-27

mon the land known as "COlton addition
land To establish the right of plaintiff II
nil the lands acquired under both agree
ments. claiming that Cotton, AS trustee
denied his right thereto. A.,
The trial court gave judgment Tor th'
plaintiff for his interest in me lana M ~
claimed. and also for Slo32'tt: .., LIZ
court of civil appeals affirmed THIS ludG'
ment as to the lands but required tht
plaintiff to file a remittitur OF parIt 90 Oh
the money Judgment, making It Sl-5o'oo'
! IN There are embraced in the pelltioll
.hrte distinct causes OF acton. Inc
frst il n suit for three-hfths interest
i'm two-thirds of the profits arising under
the second contract. All OF the parties
Interested in the twO-thlrds interest III
litigation were made parties 10 ms SUIT
Therefore we hold that defendants eX-
rrntion ia the petition on the ground OF Il
| lack of proper parties was ho' Wen '"N'i
as to this part Of the SUIT 8. a..
(1l The second cause of action Is me
right claimed by plaintiff OF tour-tehthss
interest in the mineral LANDS. All oil
| tho henefciaries. az well as the trustee.
yvorn necessary parties to this branch OF
, tha suit. As this suit sought 10 IN Il
definite interest in the land IN plalhtiu'
| II was necessary that the other part.S
interested should be made partles' III
order that the rights Of all the parties
interested might be settled in one SUIT.
Otherwise the judgment in ray
or of Colt against Cotton mlght
bind the latter as against Colt, ana YET
not binding in his favor as against lhe
other interested parties. Cotton had me
right for his own protection as trustee
40 demand thu. the rights of all the bene-
ficiaries be settled in one proceeding: we
therefore conclude that the exception 10
this part Of the petition should have D'rh
sustained.
O. The third cause Of action en-
braced in the petition Is a cam lor
money, and the judgment of the coart OF
civil appeals on this branch OF the case
is not complained of here.
The district court rendered Judgment
in favor of Colt for the land known as
the "Cotton addition" in the Following
words: at is therefore ordered, ad-
Judged and decrced by the court that
plaintiff is the owner in fee simple as
against defendant Cotton of an I'M
divided three-ffths Of an undivided two
thirds of the following described real
estate" Describing "CottOn addition. y
The plaintiff under his pleadings and the
evidence was not entitled to the posses
sion of the land. He only sought to have
tablshed by the judgment, and not to
interfere with the execution Of the trust.
The judgment destroys the trust and to
this extent we are of the opinion that it
is erroneous.
1t is therefore ordered that Colt re-
cover Of Cotton the sum of $123J. 10
y n: it is further ordered that the
right Of Colt as beneficiary in the trust,
as to the tract of land known as the
"Cotton addition" he established; it is
further ordered that the judgments of
the district and of the court of civil APP
peals be reversed as to the 81 sections
of land known as the mineral lands,
and that this cause be remanded to the
trial court Opinion by Brown, j.
]. V. Howell VS.. ~. G. Hanrick, motion
for a rehearing in case of treSpasS to
try title; from Travis county. Overruled.
The main question in the case is as to
the authority Of the Alcalde LeSSasseir
to grant the land in controversy. The
former opinion rcvCrScS and rcmandS the
case on the ground that he had no such
authority.
We have carefully reconsidered the
cause upon this motion and have exam
incd the authorities cited by counsel, but
we find no reason to change our opinion
as heretofore expressed. ABE cOunSel, |
with great labor and research, have failed |
to present us with any authority for the
position that an alcalde, as such, ever
had authority under the laws of Coahuia |
and Texas to grant the c.cven league title.
The only authority to make this grant
that Lessasser had was the concession
issued by the governor This was a |
special authority to do a particular act,
which, when DONE fully satisfied and
exhausted the authority vested in him.
The cases do not support the proposition
that a grant without authority of the
State or by a person not empowered to |
make such grant, can confer any right |
whatever. If the fact be found that |
Lessasseir had made valid grant under
the concession in question to De Angine |
on the Brazos river prior to the making of
the grant now in question, then the at |
tempt to make the second grant by vir-
tue of the same concession was wholly |
unauthorized and did not in any way ap- |
proprate the land or confer any right |
thereto, and in that event it was I'M
appropriated public domain. subject TO
appropriation by the defendant Howell, |
at the time that his survey was made. |
The motion is overru,ed. Opinion by |
Brown, j.