Austin City Gazette. (Austin, Tex.), Vol. 1, No. 28, Ed. 1 Wednesday, May 20, 1840 Page: 1 of 4
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V
B!l
AUiTII CITY OAKET1
1
m
PUBLISHED by s. whiting,]
TERMS—FIVE DOLLARS, PAYABLE IN ADVANCE.
[PRINTER TO CONGRESS.
VOLUME I.
CITY OF AUSTIN, WEDNESDAY, MAY 20, 184 0.
NUMBER 28.
ACTS AND RESOLUTION S,
Passed in 1st Session, 4tii Congress,
Printed under supervision of the State Department,
and by order of Congress.
AN ACT
To provide the mode of trying titles to lands.
Section. 1. Be it enacted by the Senae and House
of Representatives of the Republic of Texas in Con-
gress assembled, That all fictitious proceedings in the
action of ejectment shall be abolished, and that the
method of trying titles to land or tenements in this Re-
public, shall be by action of trespass, wherein the real
names of the plaintiff and defendant shall be used;
and if the jury shall find for the plaintiff, they may, in
the same verdict, award damages for the mesne profits,
and judgment shall be entered on such verdict, as well
for the damages as for the recovery of the land; and
the plaintiff shall, thereupon, be entitled to a writ of pos-
session for the land, and an execution for his damages.
Sec. 2. Be it fur her enacted, That in actions of
trespass brought to try titles to land, the plaintiff, or
his attorney, shall always endorse on the original and
copy of his petition, that the action is brought as well
to try the title as for damages; and the said action
shall be tried on their merits conformably to the prin-
ciples of trial by ejectment.
Sec. 3. Be it further enacted, That in all actions
commenced or prosecuted in any of the courts of this
Republic, wherein the right or title to any lands or te-
nements shall come in question, the presiding judge of
the court wherein the- same may be depending, in or-
der for the better finding out and discovering the truth
of the matter in difference, shall, either in chambers
or in open court, at his own discretion, or on the mo-
tion of any of the parties to said suit, appoint a sur-
veyor, who shall survey and return the same on. oath
at the next sitting of the said court; snd if the court
shall acquiesce in the return of the surveyor given in
on oath, as aforesaid, the same shall be allowed as evi-
dence.
Sec. 4. Be it further enacted,, That in all actions
of trespass to try title, where the defendant shall set up
title to the land in question, or any part thereof, either
by possession or otherwise, he shall be required to
plead the same, and in the plea shall set out the land
so claimed by him by metes and bounds, with the
same precision as the plaintiff is required to do.
Sec. 5. Be it further enacted, That when a tenant
is sued for lands of which he is in possession, the real
owner, or his agent or attorney, may enter himself on
the proceedings as the defendant in the suit, and shall
be entitled to make such defence as if he had been the
original defendant in the action.
Sec. '6. Be it further enacted, That it shall not be
necessary to prove an actual trespass on the part of
the defendant to support this sction, nor shall this act
be so construed as to alter, impair or take away the
rights of parties as arising under the laws in force be-
fore the introduction of the common law, but the same
shall foe decided by the principles of the law or laws un-
der which the same accrued, or by which the same were
regulatgulated, or in any manner effected.
Sec. 7. Be it- further enacted, That in all actions
of trespass to try tides to lands, commenced within the
time limited by law, the plaintiff shall proceed with
all convenient expedition to the trial of the same; and in
case a verdict & judgment shall pass againsthim in such
action, such verdict and judgment shall not be conclu-
sive and definitve against the plaintiff, but at any time
within one year the said plaintiff, or any other person
claiming under him, shall have a right to commence
his action for the recovery of the said lands de novo.
and prosecute the same in the manner and with the
expedition before directed; but in case a verdict and
to pay the excess in value of said improvements, and
the said defendant, or his legal representatives, shall,
within six months after the expiration of said year pay
to the clerk of the court, for said plaintiff, the value of
the lands or tenements as assessed by the jury, then
the plaintiff shall be forever barred of his writ of pos-
session, and from ever having or maintaining any ac-
tion whatever against the defendant, his heirs or as-
signs, for the lands or tenements recovered by such
suit.; and if the defendant, or his legal represe'ntatives,
shall not, within the said six months, avail him or
themselves of the benefit of this act, the plaintiff, or his
legal representatives, may sue out a writ of possession
as in ordinary cases.
Sec. 10. Be it f urther enacted. That plaintiffs who
are without the limits of this Republic, shall have two
years to take the benefit of the provisions of this act;
and plaintiff feme coverts and minors shall be allowed
one year after their disability is removed, to take ad-
vantage of the same.
DAVID S. KAUFMAN,
Speaker of the House of Representatives.
DAVID G. BURNET,
President of the Senate.
Approved, 5th Feb. 1840.
MIRABEAU B. LAMAR.
conviction thereof before the District Court, shall be
fined in a sum of not less than five thousand dollars,
unless the person claiming such patent shall produce
to the Commissioner of the General Land Office, the
judgment or decree of a District Court of this Repub-
lic, from which no appeal was taken within the time
prescribed by law, that he is justly entitled to the
amount of land under the Constitution and laws of
this Republic.
Sec. 6. Be it further enacted, That the Commis-
sioner of the General Land Office shall, in every iff
stance of a head-right claim, make out the patent in
the name of the original claimant, and the patent made
out in the name of any other person shall bq, null and
void.
Sec. 7. Be it further enactedThat any person
claiming land by virtue of an assignment made pre-
vious to the issuing of the patent by the Government
on the said claim, shall have six months from the is-
suing of the said patent to have the assignment proved
up, and recorded in the county where the land is situ-
ated; and any assignment proven up and recorded as
required by law, within the said six months, shall be
as valid in law as if it had been proven up and re-
AN ACT
To detect Fraudulent Land Certificates, and to pro-
vide for issuing patents fo legal claimants.
Section 1. Be it enacted by the Senate arid House
of Representatives of the Republic of Texas in Con-
gress assembled, That there shall be elected by joint
vote of both Houses of Congress, three Commissioners,
whose duty it shall be to visit each county in the Re-
public, the county seat of which is east of the Brazos
river; and, also, three other Commissioners, whose
duty it shall be to visit each county, the county seat
of which is west of the Brszos river ; and, in conjunc-
tion with three County Commissioners, to be elected
in like manner by Congress, from the respective coun-
ties for which they are to act, to inspect the records of
the Boards of Land Commissioners, and ascertain by
satisfactory testimony what certificates for land have
been issued by the respective boards to legal claimants,
and report as soon thereafter as practicable to the Com-
missioner of the General Land Office, such certificates
as they find to be genuine and legal, setting forth in
their reports the number and date of the certificates,
the quantity of land, and the name of the person to
whom issued; in which report, at least two of the Ge-
neral Commissioners and two of the County Commis-
sioners must concur.
Sec. 2. Be it further enacted, That each of the Ge-
neral Commissioners, before entering upon the duties
of their appointments, shall be commissioned by the
President, and shall take and subscribe before some
District Judge, or Chief Justice of a county, the fol-
lowing oath:—“I do solemnly swear, thaf as a com-
missioner to investigate the transactions of the Boards
of Land Commissioners, I will honestly and faithfully
discharge my duties, and will not report or recommend
to the Commissioner of the General Land Office, any
certificate that I do not believe to be a genuine and le-
gal claim against the Government, and issued in con-
formity with the provisions of the Constitution, and of
the laws granting donations of land to emigrants; and
I do also swear, that I will neither directly or indi-
rectly purchase or trade, in any way, for lands or cer-
tificates for lands, during the time I am acting as Com-
missioner to investigate the records of the Boards of
Land Commissioners for the several counties for which
I am appointed; and that I will not report or recom-
mend to the Commissioner of the General Land Of-
fice. any certificate for land in which 1 am in any way
interested;” and each of the County Commissioner, be-
judgment again pass against such plaintiff, then such j fore entering upon the duties of his appointment, shall
second verdict and judgment shall be finally conclu-1
sive on the part of every such plaintiff; and he shall
be forever barred and excluded from any further ac-
tion or suit for the recovery of the same lands, and the
right of the defendant shall be thenceforth finally set-
tled and established against such plaintiff, his heirs and
assigns—excepting persons out of the limits of the Re-
public, who shall be allowed two years, and feme co-
verts who shall be allowed one year after discoverture,
and persons under the age of twenty-one years, who
shall be allowed one year after they come to full age,
to prosecute their second action in the manner above
directed.
Sec. 8. Be it further enactedl, That in any action
of trespass to try titles, it shall be lawful for the de-
fendant, at any time before the trial of said suit, to sug-
gest to the court that he and those persons whose es-
tate he has in the lands and tenements sued for, have
had adverse possession of the same in good faith, for at
least one year next before the commencement of such
suit; and that he and those persons whos estate he has,
have made permanent and valuable improvements on
the lands sued for, during the time he or they have
had such possession of the same; and the jury trying
the suit, if they shall find for the plaintiff, shall, at the
same time, enquire if the suggestion so made be true
or false—if false, they shall return a verdict as in or-
dinary cases, for the damages sustained—but if true,
they shall assess the value of the improvements at the
time of the trial which have been made by the defend-
ant, or by those whose estate he has, and shall assess
the value of the land or tenements without considering
the increased value thereof by reason of such improve-
ments, as shall have been made by said defendant, or
by those whose estate he has; and they shall, also, as-
sess the value of the use and occupation of the said lands;
and if the value of the use and occupation as assessed
shall exceed the value of the improvements as assessed,
the court shall render a judgment against the defend-
ants for the excess.
Sec. 9. Be it further enacted, That in any suit
where the value of the improvements so assessed shall
take and subscribe the same oath before some Chief
Justice of a county, or before one of the General Com-
missioners; which oath, the person so administering
shall have recorded in the County Court Clerk’s office
of the county; and it shall be the duty of the District
Judge, or Chief Justice of a county, administering the
oath to the General Commissioners, to endorse the same
on the back of their commissions.
Sec. 3. Be it further enacted, That the commission-
sioners east of'the Brazos river shall meet at the town
of Milam, in the county of Sabine, on the first Monday
in February next, or as soon thereafter as practicable,
and continue their labors until they shall have visited
every county east of the Brazos, and made report to the
Commissioner of the General Land Office, as required
by this act; and the Commissioners west of the Bra-
zos shall meet at the town of Nashville, in the county
of Milam, on the first Monday in February next, or as
soon thereafter as practicable, and continue their labors
until they have visited every county west of the Bra-
zos, and reported as required above, to the Commis-
sioner of the General Land Office.
Sec. 4. Be it further enacted, That it shall be the
duty of the Commissioner of the General Land Office,
upon the return of a survey made in accordance with
law, and by authority of any certificate that shall be
returned as genuine and legal by the Commissioners
appointed by this act, and as required by this act, to
make out and deliver to the rightful owner a patent
for the same, unless it shall appear from the records of
his office, or from information, on oath, given him,
that there is some illegality in the claim; in such case
he shall refer the matter to the Attorney-General,
whose decision in writing shall be sufficient authority
for him to issue or withhold the patent as the case may
be.
Sec. 5. Be it further enacted, That the Commis-
sioner of the General Land Office is hereby prohibited
from issuing a patent upon any survey that shall not
have been or may hereafter be made by authortity of a
certificate returned as genuine and legal by the Corn-
corded at the time the said transfer was made.
Sec 8. Be it furher enacted, That in all cases where
appeals have been taken to the District Court from the
Boards of Land Commissioners, in accordance with
section the 16th of the land law, passed December
the 14th, 1837, and where said appeals have been de-
cided by the verdict of a jury in favor "of appellants, it
shall be the duty of the Commissioners herein ap-
pointed to report such claims as having been passed by
the Judiciary, on which it shall be the duty of the
Commissioner of the General Land Office to issue pa-
tents as required above.
Sec. 9. Be it further enacted, That should a va-
cancy occur in the Board of General Comtnissione”s,
it shall be the duty of the President to fill the vacancy
as early as practicable; and should a vacancy occur in
any of the Boards of County Commissioners, the Board
of General Commissioners shall fill the same.
Sec. 10. Be it further enacted, That, the General
Commissioners appointed by this act, shall receive as
compensation for their services, ten dollars per day,
from the time they commence their labors, until they
shall have visted all the counties which, by this act,
they are required to visit, and five dollars for every
twenty-five miles they must necessarily travel in go-
ing to the place of their commencement, and for re-
turning from the last county they visit to the Seat of
Government, and from thence to their place of resi-
dence; and the County Commissioners shall receive
five dollars per day for the time they are actually em-
ployed.
Sec. 11. Be it further enacted, That there be, and
is hereby specially appropriated for the purpose con-
templated in this act, the sum of twenty thousand dol-
lars of the promissory notes of the Government, and
the Treasurer is hereby authorized and required to
pay five hundred dollars in advance to each of the six
General Commissioners, and to pay to the County
Commissioners, upon the certificate of the General
Commissioners, or any two of them, the sum of five
dollars per day for the time they were actually em-
ployed.
Sec. 12. Be it further enacted, That the clerks of
the County Courts shall act as clerks to the Commis-
sioners appointed under this act, whose duty it shall
be to record in a well-bound book, a synopsis of the
certificates approved and returned to the General Land
Office as genuine and legal, stating the number, the
date, the quantity of land, and the name of the claim-
ant ; which book of record, after being approved and
signed by the Commissioners, shall be attested by the
Clerk, and filed in his office for public reference: it
shall, also, be the duty of the Clerk immediately to
make out two copies of said synopsis, one of which
shall be retained by the General Commissioners, and
the other transmitted by them to the Commissioner of
the General Land Office; and in case of the absence
of any of the clerks, it shall be the duty of the Com-
missioners to appoint some suitable person to act as
Clerk ; and the said clerks shall receive for their servi-
/ JOINT RESOLUTION
For the payment of persons for military services here-
tofore rendered
Section 1. Be it resolved by the Senate and
House of Representatives of the Republic of Texas
in Congress assembled, That the Treasurer of the
Republic is hereby directed to pay all audited drafts in
the hands of original holders, and which have not
been soM or transferred, for personal services, and for
provisions furnished, and so much of the one million
of dollars appropriated for the protection oi the fron-
tier, and for other purposes, by an act approved 24th
January, 1839, as is necessary for this purpose, is here-
by appropriated.
Sec. 2. Be it further resolved, That the holder or
holders of audited papers, or their attornies in fact, pro-
vided for by the first section of this act, shall be re-
quired to take an oath before some Chief justice, No-
tary Public, or the Treasurer, that he or they have ne-
ver sold, alienated, or in any manner transferred the
same.
Sec. 3. Be it further resolved, That the agent or
attorney in fact of any original holder of said claim or
claims, may make affidavit that he received the same
for collection, from the original owner; and, that to the
best of his knowledge and belief, it has never been
sold or transferred by him; and said affidavit shall be
as legal as if made by the owner.
DAVID S. KAUFMAN,
Speaker of the House of Representatives.
DAVID G. BURNET,
President of the Senate.
Approved January 14th, 1840.
MIRABEAU B. LAMAIl,
AN ACT
To dispense with the necessity of protesting negotia-
ble instruments for dishonor, and of giving notice
thereof; and to regulate assignments of all written
instruments.
Section 1. Be it enacted by the Senate and House
of Representatives of the Republic of Texas in Con-
gress assembled, That it shal l not be necessary for the
owner or holder of a bill of exchange, promissory
note, check, draft, or other mercantile negotiable in
strument, to have any of those instruments protested
for non-acceptance, or non-payment; nor shall it be
necessary to give notice of such dishonor to any drawer,
endorser, or assignor of the same; and every such
party shall, without any protest or notice whatever, be
held responsible as security for the final payment of
every such instrument: provided, however, that in all
cases in which either a protest or a notice was hitherto
necessary, the party that would have been released
from responsibility by a failure to make such protest.,
or to give such notice, shall, hereafter, be released
from all responsibility, unless the owner or holder oi
such instrument shall use due diligence to collect the
same; and every holder or owner shall be adjudged
not to have used due diligence who shall not have in
stituted a suit against the drawer or maker of such in
strument, before the first term of the District Court af
ter the right of action accrued, or shall not institute
such suit before the second term of said court; and
also show good cause why he did not institute his suit
before the first term.
Sec. 2. Be it further enacted, That any person to
whom any of the aforesaid negotiable instruments may
have been assigned, may, thereupon, maintain any ac-
tion in his own name, which the original obligee, or
payee might have brought; but he shall not only al
low all just discounts against himself,but if he obtained
the same after it became due, he shall, also, allow all
just discounts against the assignor, before notice of the
assignment was given to the defendant: but should he
obtain such instrument before its maturity by giving
for it a valuable consideration, and without notice o:
any discount or defence against it, then he shall be
compelled to allow only the just discounts against
himself.
Sec. 3. Be it further enacted, That the obligee or
assignee of any bond, or other written instrument, may
transfer to another, by assignment, all the interest
which he may have in
the same, and an assignee oi
ces five dollars per day for the time they are actually any of them may maintain an action in his own name;
employed, to be paid upon the certificate of any.two of but, as this section has no reference to negotiable in
the General Commissioners. j struments, he shall allow every discount and defence
Sec. 13. Be it further enacted,, That no member of; against the same, which it would have been subject to
Congress shall be elected to the office of Commissioner j in the hands of any previous owner, before notice of
under the provisions of this act.
Sec. 14. Be it further enacted, That no individual
who has heretofore been employed in any of the land
offices in any of the counties of this Republic, as Land
Commissioners, shall be eligible to the office of either
General or County Commissioner.
DAVID S. KAUFMAN,
Speaker of the House of Representatives.
DAVID G, BURNET,
Pres’t. of the Senate.
Vetoed by the President, and passed by a constitu-
tional majority of the House of Representatives, this
28th January, 1840.
DAVID S. KAUFMAN.
Speaker of the House of Representatives.
Vetoed by the President, and passed by a constitu-
tional majority of the Senate, this 29th January, 1840.
DAVID G. BURNET,
President of the Senate.
exceed the value of the use and occupation, no writ of j warrant issued for military services, after the same
possession shall be issued for the term of one year after
the rendition of the judgement, unless the plaintiff or
his legal representatives shall pay to the clerk of the
court, for the defendant, the excess of the assessed
value of the improvements over the value of the use
and occupation and if the said plaintiff’, or his legal
representatives, shall neglect, for the term of one year,
AN ACT
To repeal the eighth section of the “Act. to detect
fraudulent land certificates, and to provide for issu-
ing patents to legal claimants.”
Section 1. Beit enacted by the Senate and House of
Representatives of the Republic of Texas in Congress
assembled, That the eighth section of the act to de-
tect fraudulent land certificates, and to provide for is-
missioners appointed by this act, or by authority of a j suing patents to legal claimants, passed January 1840,
be and the same is hereby repealed, and made null
and void from and after the passage of this act.
shall have been presented to, and approved by the ;
Secretary of War, or by authority of a certificate issued j
by special act of Congress; and any patent issued 1
contrary to the provisions of this act, shall be null and j
void, and the Commissioner of the General Land Office ;
issuing a patent contrary to the provisions of this act,1
shall be deemed guiRy of a high misdemeanor, and on j
DAVID S. KAUFMAN,
Speaker of the House of Representatives.
DAVID G. BURNET,
President of the Senate.
Approved. 5th Feb. 1810.
MIRABEAU B LAMAR.
the assignment was given to the defendant; and, in
order to hold the assignor as security for the payment
of the instrument, the assignee shall use due diligence
to collect the same.
Sec. 4. Be it further enacted, That the assignee
or assignees, his, her, or their executors or adminis-
trators, of any of the instruments mentioned in the pre-
ceding sections of this act, shall be entitled to recover
from any previous assignor or assignors, his, her, or
their executors or administrators: provided, that in any
suit brought against a remote assignor, or remote as-
signors, his, her, or their executors or administrators,
he, she, or they, shall be subject only to such recovery,
and shall have the benefit of the same defence ns if the
suit had been instituted by any intermediate assignee
or assignees; and provided, also, that no joint action
shall be commenced against any two or more assignors,
unless when they shall be joint assignors.
Sec. 5. Be it further enacted, That when a suit
shall be instituted by any assignee or assignees of any
of the aforesaid instruments, the assignment or assign-
ments thereof, shall be regarded as fully proved, until
the defendant or defendants shall deny in his plea, that
the same are genuine; and moreover shall file, with the
papers of the cause, an affidavit, stating that he or they
have good cause to believe, and verily do believe, that
one or more of such assignments were forged.
Sec. 6. Be it further enacted, That the assignor
or endorsoi of any of the beforementioned instruments
may be sued without the necessity of previously suing
the drawer, maker or obligor, when he may either re-
! side beyond the limits of the Republic, or in such part
j of the same that he can not be reached by the ordinary
1 process of the law, or when he may be notoriously in
| solvent.
Sec. 7. Be it further enacted, That parol teslimo-
I ny shall be inadmissible to prove that the asssignoi.
j drawer, or endorser released the owner of any of the
j#
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Teulon, G. K. Austin City Gazette. (Austin, Tex.), Vol. 1, No. 28, Ed. 1 Wednesday, May 20, 1840, newspaper, May 20, 1840; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth874308/m1/1/: accessed June 10, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting San Jacinto Museum of History.