102 U.S. 333 (1880), Hunnicutt v. Peyton

Citation:102 U.S. 333, 26 L.Ed. 113
Case Date:November 15, 1880
Court:United States Supreme Court

Page 333

102 U.S. 333 (1880)

26 L.Ed. 113




United States Supreme Court.

November 15, 1880


ERROR to the Circuit Court of the United States for the Western District of Texas.

This was an action brought by Bailie Peyton and others against Hunnicutt and others to recover possession of a tract of land in the county of Falls, Texas, being 'four leagues of land on the east of left bank of the Brazos River, known as the Gregorio Basquez survey of four leagues,' and more particularly described in the amended petition as beginning at a stake marked 'P' on the east bank of the river Brazos, in the county of Falls, State of Texas, at the point where the upper line of the Austin & Williams reserve, on the east side of said river, intersects said river; running thence with said upper line of the reserve N. 71º E. 20,220 varas to a stake, and crossing Isaac's Creek; thence S. 19º E. 5,000 varas to another stake for the third corner; thence S. 71º W. 18,320 varas, covering again the aforesaid creek to a stake on the Brazos River for the fourth corner; thence up said river to the place of beginning, covering an area of four leagues, fronting on said river and lying within said Austin & Williams reserve, immediately below and adjoining said upper line of said reserve.

The defendants pleaded the general issue and the Statute of Limitations. Sundry exceptions were taken during the trial. The jury returned a verdict for the plaintiffs, on which judgment was rendered. The defendants sued out this writ.

They assign for error that the court erred, ----

I. In admitting the documentary evidence set out in their bill of exceptions, being certified copies of certain papers, and in holding that they vested a legal title in Jonathan C. Peyton. The copies are as follows, the plaintiffs offering in evidence the original testimonio of their title:----

'First, A power of attorney, with power of substitution, from Gregorio Basquez to Jayme Hartz, dated the twentieth day of September, eighteen hundred and thirty-one (1831).

'Power of Attorney, with Power of Substitution, from Gregorio Basquez to Jayme Hartz.

'Second stamp--twelve reales.

'Legalized for the State of Coahuila and Texas for the years 1828, '29, '30, & '31.

'By commission:


'In the town of Nacogdoches, on the twentieth day of September, 1831, before me, the citizen Manuel de los Santos Coy, sole constitutional alcalde of the aforesaid town, and instrumental witnesses hereinafter named, besides those of my assistants with whom I act agreeably to the law, appears the citizen Gregorio Basquez, of this jurisdiction, in this proper person, whom I declare to know, and who says: That by these presents he executes, gives, and confers all his power, full, ample, and sufficient, whatever may be required by law and is necessary or may be of value, to Don Jayme Hartz, of this jurisdicition special, that he, in representations and use of the rights and interests which pertain to the grantor, may solicit of the person or persons authorized to that effect, the possession and titles of eleven leagues of land, which he has obtained from the supreme government of the State by way of purchase, with the authority to empower him to solicit in the place or places which best suits him, together or separate, according to the tenor of the concession of the date of 11th March of this year, which I declare to have seen.

'And the grantor has placed in the hands of his attorney that he may do and perform, in the name of the grantor, all whatsoever he might do were he actually present, since for all as aforesaid, annexed, concerning, incident, and pertaining, he gives and confers the most ample and extensive power, without any limitation whatever, and without which, by default of any clause or requisite, he gives to this power all the force and effect, whatever the same may be, as if the same was herein literally written and inserted.

'That he may appoint substitutes, revoke the same and appoint others anew, with free, frank, and general administration in form, since for all he relinquishes by this act whatever the law permits, and acknowledges all whatsover his attorney may do or perform by virtue of this power of attorney, binding his person and property in every form, and renounces all laws in his favor.

'In testimony whereof thus he executes, as he does not know how to write, he makes the sign of the cross; there were present, as instrumental witnesses, the citizens Martin Ybarvo, Antonio Menchaca, and Carlos Gil, residents of this town, and those of my assistants in the form prescribed by law, to which I certify.


'Sign of the cross of----



'Ass. witness: VITAL FLORES.

'This testimonio agrees with the original which remains in the archive of the public documents of this municipality, which goes truly and legally compared and corrected, and at its transcribing, correction, and comparing the same, there was found the same instrumental witnesses who were present at its execution, besides those of my assistants, with whom I act in the form prescribed by law, to which I certify.



'Ass. witness: VITAL FLORES.'

'Second, An act of sale by Gregorio Basquez to the said Jayme Hartz of his concession in sale, which had been made to him by Santiago del Valle, on the eleventh day of March, eighteen hundred and thirty-one (1831), bearing date Sept. 22, eighteen hundred and thirty-one (1831).

'Act of Sale, Basquez to Hartz.

'Third stamp--two reales. [STAMP.] For the years 1830 and 1831.

'MOST EXCELLENT SIR.--Gregorio Basquez, a native of the city of Mexico, and now residing in this town, with the due respect to your excellency I would represent, that understanding the provisons of the twenty-fourth article of the colonization law of the State, of 24th March, 1825, and in virtue of being a native Mexican, with due respect to your excellency, I pray you be pleased to grant me in sale eleven leagues of land on the vacant territory of this department, with the privilege of selecting them together or separate, or in distinct places, as may suit me, with the understanding that I offer to settle and cultivate them as customary, that it may be to the purpose within the term which the law prescribes, making the payments of its value on the terms and at the places designated in the twenty-second article, and to sustain the right of the country, and of the State, and all other that may be in conformity with the laws which govern us and under their protection.

'I pray your excellency be pleased to do as aforesaid, in which I will receive favor.

'NACOGDOCHES, Sept. 28, 1830.


'LEONA VICARIO, March 11, 1831.

'In conformity with the twenty-fourth article of the colonization law of 24th March, 1825, I grant by sale to the petitioner the eleven leagues of land that he solicits on the vacant territory of the State at the place that may best suit him, after the commissioner of the supreme general government shall have set apart a sufficiency of land for the payment of the debt due by the State to the Federation. The commissioner for the partition of land in the enterprise to which pertain the land solicited by the petitioner, and in his default, or that the same not being embraced by any enterprise whatever, the first or sole alcalde of the respective jurisdiction will comply with the orders on the subject and put him in possession of said leagues, and issue the proper title, previously classifying the quality of them; for according to their designation he shall satisfy the State, for the payment of which I concede him the times designated in the twenty-second article of the aforesaid law.

'Let a copy of his petition and this decree be given by the secretary of state to the interested party, so that upon application with it to the commissioner it may have the desired effect.



'A copy of the original on file in the archives of the office of the secretary of state, in my charge, from whence it was taken by orders of his excellency the governor.

'LEONA VICARIO, March 14, 1831.


'Second seal--twelve reales.

'Furnished for the State of Coahuila and Texas, for the terms 1828 and '29.

'By the commissioner,


'In the town of Nacogdoches, the twenty-second day of the month of September, 1831, before me, citizen named de los Santos Coy, sole constitutional alcalde of the said town, and the instrumental witnesses, whose names appear at the end of this document, assisting me to authenticate the same in the absence of a notary appointed conformably to law, appeared the citizen Gregorio Basquez, of this district, in whom I placed confidence and with whom I am personally acquainted, and said that embracing the right which the twenty-seventh article of the colonization law of the State of the 24th of March, 1825, gives him, he applies for the present order of sale by which he has sold really and publicly in fee and for ever Don Jayme Hartz of this vicinity, as follows:----

'A grant of the supreme government of the State dated 11th of March, of the present year, of eleven leagues of land located on the public domain in this department, which was sold him by virtue of the twenty-fourth article of the colonization law above cited, with the same conditions, privileges, and obligations which were imposed upon the petitioner for whose possession and title he has granted a special power to the same purchaser, dated the 20th of the present month and the term of our Lord already given, for the price and sum of one hundred and fifty dollars, which he acknowledges having received in current coin to his satisfaction, wherefore he renounces the laws of non numerata...

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