Christ Church v. The County of Philadelphia.

was, whether or not the act of 1833 was a contract, irrepealable except with their consent. But the record presented only the following state of facts.

March Term, 1853, No. 145.

Docket Entries.

The Rector, Church Wardens, and Vestrymen, of Christ Church, H. M. WATTS. in the City of Philadelphia, in trust for Christ Church Hospital,

v.

The County of Philadelphia.

145.

W. D. BAKER.

Summons case ret'ble the first Monday of June, 1853, exit 11th May, 1853.

March 3d, 1854.-Case stated in the nature of a special vervict filed.

April 1, 1854.-Judgment entered without argument for defendants by the court. By writing filed, it is agreed that the above case may be removed by the plaintiffs to the Supreme Court, without any recognizance being given by them. Eo die assignments of errors filed.

April 4, 1854.-Argued.

December 27, 1854.-Reargued.

March 12, 1855.-Opinion by C. J. Lewis, judgment reversed, and judgment in favor of the plaintiffs in error for the sum of one hundred and twenty-six dollars, with costs. Eo die opinion filed.

The case was submitted on a printed argument, by Mr. Watts and Mr. Meredith for the plaintiffs in error, and Mr. Porter for the defendants.

The arguments proceeded upon the ground that the question of impairing the obligation of a contract was raised by the record; but, as the court decided that no such question was properly involved in the discussion, it is thought unnecessary to report the arguments.

Mr. Justice CAMPBELL delivered the opinion of the court. This is a writ of error to the Supreme Court of Pennsylvania, under the 25th section of the judiciary act of the 24th September, 1789.

These parties, without any pleadings, stated a case, in the

Christ Church v. The County of Philadelphia.

nature of a special verdict to the Supreme Court of the State of Pennsylvania, upon which a final judgment was rendered. It appears from the case, that in April, 1833, the Legislature of Pennsylvania enacted: "That Christ Church Hospital, having for many years afforded an asylum to numerous poor and distressed widows, who would probably else have become a public charge, and that, in consequence of the decay of the buildings of the hospital estate, and the increasing burden of the taxes, its means are curtailed and its usefulness limited; therefore, that the real property, including ground rents now belonging and payable to Christ Church Hospital, in the city of Philadelphia, so long as the same shall continue to belong to the hospital, shall be and remain free from taxes."

That in April, 1851, the Legislature of the same State enacted, "that all property, real and personal, belonging to any association or incorporated company, which is now by law exempt from taxation, other than that which is in the actual use and occupation of such association or incorporated company, and from which an income or revenue is derived by the owners thereof, shall hereafter be subject to taxation, in the same manner and for the same purposes as other property is now by law taxable; and so much of any law as is hereby altered and supplied be, and the same is hereby, repealed: Provided, That nothing herein contained shall be construed to exempt cemetery companies from taxation."

It further appears, in the case stated, that the county of Philadelphia, in the year 1852, caused certain real estate and ground rents of the plaintiffs in the city of Philadelphia, and which were possessed by the plaintiffs before the date of the act first mentioned, to be valued and assessed for taxes, and that the taxes were subsequently paid to the officers of the county, under protest, by them. The Supreme Court of Pennsylvania determined that the plaintiffs were entitled to recover only for so much of the taxes assessed and paid which were levied for property in the actual occupancy of the plaintiff for hospital purposes.

It does not appear, either by express averment or by a necessary intendment from any matter stated in the case, nor does any entry on the record of the cause in the Supreme Court of Pennsylvania show, that any of the questions of which this court is entitled to take cognizance, under the terms of the 25th section of the judiciary act, arose in the cause, and were actually decided by that court. Therefore, in conformity with the established doctrine of this court, (Armstrong v. The Treas urer of Athens county, 16 Pet., 282; Smith v. Hunter, 7 How. S. C. R., 788,) the writ of error must be dismissed.

Doswell v. De Le Lanza et al.

20h 29

J. TEMPLE DOSWELL, PLAINTIFF IN ERROR, v. ENRIQUE DE LA L-ed 824 LANZA ET AL.

20h 272 8wa105 13wa604

93 301

50f 688

This court again decides, as in former cases, that a refusal of the court below to 147 524 grant a new trial is not a proper subject for a bill of exception. 50f 816 In an action of ejectment, where the defendant pleads the statute of limitations, he must connect his own possession with the adverse possession and title of another person which is set up as a defence. Otherwise, the plea is not good. Under the decisions of the courts of Texas, a survey made of land beyond the limits of the surveyor's district, although invalid at the time, is rendered good by the subsequent approval of the proper county surveyor. This court adopts the rule. Where patents for land in Texas were erroneously issued, it was proper to cancel them

THIS case was brought up, by writ of error, from the District Court of the United States for the district of Texas.

The case is stated in the opinion of the court.

It was argued by Mr. Hale for the plaintiff in error, and Mr. Merriman for the defendant.

Mr. Justice McLEAN delivered the opinion of the court. This case is brought before us by a writ of error to the Cir cuit Court for the district of Texas.

In his petition, the plaintiff claims two leagues of land, worth twenty-five thousand dollars, in Nueces county, San Patricio district, on the bay of Corpus Christi, and west of the Nueces; and he alleges that the defendants, on or about the 4th day of October, 1849, entered into the possession of one-fourth of the above premises, and ejected the petitioner, &c.

The defendants pleaded the general issue, and, by leave of the court, filed au amended answer, containing six pleas in bar. The first plea alleged an adverse possession of more than ten years by Enrique Villareal. The second, that he had peaceable and adverse possession for more than three years after the right accrued to the person under whom the plaintiff' claims; and that he did not make entry or commence an action to try title to the land before the 16th of June, 1842; and that after that day, Henry L. Kinney, being seized of the land from Villareal, held adverse and uninterrupted possession, without entry or action by plaintiff, up to the commencement of this suit. Third, that Villareal, and those claiming under him, held adverse and peaceable possession on the 17th of March, 1841, and up to the commencement of the action.

In the fourth plea, ten years' adverse possession was alleged; and in the fifth, an adverse possession of three years. The sixth plea avers that each of the defendants, and those under whom they claim, had adverse, peaceable, and continuous pos

Doswell v. De La Lanza et al.

session of the land for more than three years, under color of title, before the commencement of the action.

Special demurrers were filed to these pleas, except the sixth, on which issue was joined. The demurrers were sustained to the first and fourth pleas, but overruled by the court as to the third and fifth. The issues before the jury were upon the plea of not guilty, and the second, third, fifth, and sixth pleas of prescription.

On the trial before the jury, two patents issued by the Republic of Texas, dated the 10th of April, 1849, to Levi Jones, were given in evidence by the plaintiff. One of these patents purported to be issued to Levi Jones, as assignee of Miguel Basquez, for one league of land in the San Patricio district, survey No. 20, on the west side of the Nueces, on Corpus Christi bay, by virtue of head-right certificate No. 288.

The other patent was issued to Levi Jones, assignee of José Ma. Bargas, for a league of land in the same district, known as survey No. 21, on the west side of Corpus Christi bay, adjoining survey No. 20, by virtue of head-right certificate 499. To show the position and outlines of the two leagues of land, the plaintiff gave in evidence a part of Grammont's map, duly certified by the land office.

The plaintiff also gave in evidence a deed of conveyance of the land by Levi Jones to him, dated the 2d of October, 1849. It was proved that the town of Corpus Christi is included in the surveys, and is situated on the shore of the bay. Felix A. Butcher, a witness, came to Corpus Christi first in the year 1846. He knows all or most of the defendants were in possession of the land at least one year prior to the 8th of October, 1849; and at that time the lots upon which the defendants resided were worth about ten dollars each; now they are worth one hundred dollars each, in the best localities. The occupants have made valuable improvements on the lots.

The defendants then offered to read certified copies of two patents from the record, issued by the State of Texas on the 11th of July, 1845, one to Kelsey H. Douglass, and the other to John S. Thorn, assignee, &c., for the land claimed by plaintiff, Both of these patents on the record book had written upon them a memorandum: "This patent cancelled, April 10th, 1848."

It was proved that these patents had been inadvertently issued to Douglass and Thorn, when the field-notes of the surveys had been returned in the name of Levi Jones, assignee, &c. They were cancelled on the advice of the Attorney General. The plaintiff objected to the introduction of the above copies; but the objection was overruled, and the papers admitted.

Doswell T. De La Lanza et al.

Proof was then made that Enrique Villareal held possession of a tract of ten leagues, including the land in controversy, from the year 1810 down to the year 1889, claiming it from 1810 to 1831 under a title from the Spanish Government; that in 1839 Henry L. Kinney succeeded Villareal in possession, but the deed for the land was not made to him until the following year; that Villareal was a native of Mexico, and at the time of the grant to him by the State of Tamaulipas was a citizen of that State, and held a commission in the army. The grant was alleged to have been lost, and the court held it could not be proved by parol; but documentary and parol proof were admitted to show the boundaries claimed and the possession of Villareal. A great number of facts were proved, historical and otherwise, in regard to this claim, which it is unnecessary here to state.

Objection to this part of the defence was made, but overruled, and the evidence was admitted.

The plaintiff then requested the court to give to the jury twenty-one instructions, principally in relation to the title of Villareal, which go into details of great length, but which, from the view we have taken of the case, it is not necessary to repeat.

The court refused to give any of the instructions requested by the plaintiff, but charged the jury, "that the plaintiff must recover on the strength of his own title, not on the weakness of his adversary's; that if the surveys on which the patents in evidence were issued were void when made, the plaintiff can claim no title to land under such patents; that if the surveys were made west of the Nueces river, on Corpus Christi bay, prior to the 24th of May, 1838, by the deputy surveyor of San Patricio county, they were void, because San Patricio county did not, at that time, extend west of the river Nueces; and the approval of the county surveyor, Buchanan, even if given after the 24th of May, 1838, relates back in point of time to the date of the surveys by his deputy, but does not have the effect of making good the surveys, if at the time they were made by the deputy surveyor they were out of the limits of the county; that if Villareal had acquired a title to the land, under the Government of Spain or Mexico, before his death, and if he died an alien enemy to the Republic of Texas in 1845, leaving only alien enemies as his heirs, still his title to the land in controversy did not escheat to the Republic, and consequently could not pass by the subsequent patents issued by the Republic or State; that as these instructions are sufficient for the decision of the case, the court refused the instructions asked by the plaintiff. Exceptions were taken by the plaintiff, as well to the