OSTERMAN V. BALDWIN, 73 U. S. 116 (1867)

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U.S. Supreme Court

Osterman v. Baldwin, 73 U.S. 6 Wall. 116 116 (1867)

Osterman v. Baldwin

73 U.S. (6 Wall.) 116


1. A citizen of the United States, and who as such was of course, before the admission of Texas into the Union, an alien to that republic, and so, as against office found, incompetent to hold land there, became on the admission competent, no office having been previously found.

2. A purchaser at sheriff's sale buys precisely the interest which the debtor had in the property sold, and takes subject to all outstanding equities.

3. Trusts of real estate are not embraced by the statute of frauds of Texas, and may be proved, as at common law, by parol.

4. A more declaration in writing by a vendor of a vendee's purchase of land that the vendee had paid the money for it and that the vendor intended to make deeds when prepared to do so, is not a document purporting to convey title, and accordingly will constitute neither a link in "a consecutive chain of transfer" nor "color of title" within the meaning of the fifteenth section of the statute of limitations of Texas.

In 1839, prior to the admission of Texas into our Union, and that country being then an independent republic, Baldwin,

Page 73 U. S. 117

a citizen of New York and an alien, of course, to Texas, purchased and paid for three lots in Galveston from the Galveston City Company, a corporation created by law with power to sell real estate, and which owned the lots sold. As the company was not at the moment ready to execute deeds, he received certificates of the purchase. These described the purchased lots, acknowledged the receipt of the purchase money, and added that Baldwin was entitled to receive a conveyance so soon as the company was prepared to execute deeds in proper form. These certificates were made out in Baldwin's own name. The Constitution of Texas, however, prohibiting aliens from holding lands there, he transferred them to James S. Holman, a Texan, the purpose having been "to place the lots in the hands of a citizen to watch over and protect them, for the payment of taxes and otherwise." No consideration moved from Holman, and the transfer was on an express agreement (made only by parol, however) that Holman was to hold the lots and take a conveyance of them from the company, as Baldwin's trustee. The certificates were placed in an envelope on which was endorsed a memorandum, thus:

No. 113


Lots No. 5 and 11, in block 617 &c.


n trust

This envelope, with the certificates enclosed, was subsequently found in the office of the company, having, as was said by the one side, been left there for safekeeping at the time, and by the other having been brought there in order that a deed might issue to Holman and surrendered and filed on the issue of a deed accordingly. The letters and figures "No. 113" indicated the number of the deed to be issued for these lots.

In September, 1846, the lots were levied on by the Sheriff of Galveston County upon a judgment obtained by one McKinney against Holman. Notice was given to McKinney of Baldwin's ownership of the lots, and that Holman had never had any interest in them, except as trustee for Baldwin.

Page 73 U. S. 118

At the sale, October 6, 1846, full notice was read aloud by Baldwin's agent to the persons assembled of Baldwin's claim to the lots and of the exact state of his title. The sale was then proceeded with, and one lot was struck off to Osterman, others to other persons. The purchasers took possession.

In May, 1850, that is to say, more than three years after the sale, Baldwin filed a bill in the District Court for the District of Texas, making the Galveston City Company, Holman, Osterman, McKinney, and others, defendants and praying that the Galveston City Company might be directed to execute a conveyance in fee simple to him, that the sale and proceedings under the judgment and execution against Holman might be declared void, and the defendants enjoined from setting up title under the same, and be ordered to deliver up possession of the lots held by them respectively.

The defenses set up were:

1. Baldwin's alienage and consequent incapacity to hold; that even if the lands were meant to be held by Holman in trust for him, the trust was void; that on this part of the defense it mattered not whether there was a deed or certificate, Holman's estate, if but equitable, being liable to levy and sale; that however a deed was made.

2. That if these defenses failed, the suit was barred by the statute of limitations of Texas.

As to the fact whether any deed had been made to Holman, the testimony was not quite consistent. On the one hand, the secretary of the company, the complainant's witness, testified thus:

"Whenever the holder of a certificate wished a deed, he produced his certificate to the company and delivered up the same, and the company issued a deed to him. The certificate was then filed away in the records of the company. Books were kept showing the issue of deeds upon the certificates, by memorandum entered against the number of the lot. All the certificates in this case were filed away in the records of the company, in the same place and manner, with the certificates upon which deeds had been issued. The books and records of the company

Page 73 U. S. 119

bear the same evidence of a deed to Holman on these certificates that they do of the issue of any deed whatever. If the records of the company are true, a deed issued to Holman. The memorandum No. 113, in the envelope, indicates that that was the number of the deed issued on the certificates."

On the other hand, Holman himself remembered no deed, and one Edmunds, the agent of McKinney, who seemed to manage the whole matter of the execution under a bargain for a large contingent share of its proceeds, twice examined the books of the City Company, once by himself and once ("thinking it an important matter") with another person, an attorney-at-law -- and found that the books "showed that no deed had then been issued," and that "the title still appeared to be by certificates in the name of Holman."

As respected a bar by the statute of limitations, the second defense set up, it appeared that the Texas act, in its fifteenth section, ran thus: [Footnote 1]

"Every suit to be instituted to recover real estate as against him, her, or them in possession under title or color of title shall be instituted within three years next after the cause of action shall have accrued, and not afterwards. By the term 'title' as used in this section is meant a regular chain of transfer from or under the sovereignty of the soil, and color of title is constituted by a consecutive chain of such transfer down to him, her, or them in possession, without being regular; as if one or more of the memorials or muniments be not registered or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty, or when the party in possession shall hold the same by a certificate of head right, land warrant or land scrip, with a chain of transfer down to him, her or them in possession."

The district court decreed in favor of the complainant. The purchasers appealed, Holman and the company not denying Baldwin's equities, and acquiescing.

Page 73 U. S. 121

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