Williams v. Conger

• Decision Date: 02 April 1888
• Citation: 8 S.Ct. 933,31 L.Ed. 778,125 U.S. 397
• Parties: WILLIAMS v. CONGER et al
• Court: U.S. Supreme Court

125 U.S. 397

8 S.Ct. 933

31 L.Ed. 778

WILLIAMS v. CONGER et al.

April 2, 1888.

Eugene Williams, for plaintiff in error.

E. H. Graham, for defendants in error.

BRADLEY, J.

This is an action of trespass to try title, brought by the appellant to recover from the appellees the possession of 11 leagues of land, situated in McLennan and Bosque counties, in Texas, on the west bank of the river Brazos, and granted by the government of Coahnila and Texas in December, 1828, to one Miguel Rabago. The defendants pleaded not guilty, the statute of limitations, and laches. The action was commenced on the 11th of September, 1873, in the district court of McLennan county, Texas, and was tried in that court in the year 1876, and a verdict was rendered and judgment given for the defendants. The case was then appealed to the supreme court of Texas, and at the Austin term of 1878 the judgment was reversed for an error in the charge on the question of laches, and the cause was remanded for a new trial. 49 Tex. 582. It was then removed to the circuit court of the United States for the Northern district of Texas, and was tried in that court in April term, 1884. Both parties claim title under Rabago,—the plaintiff, by derivation from his heirs at law, (he having died in 1848;) and the defendants through an alleged conveyance made by Rabago, in his life-time, by an attorney in fact, one Victor Blanco. No question is made, therefore, as to the validity of Rabago's title. The principal controversy at the trial arose in relation to the admission in evidence of two papers offered by the defendants, namely: First, the protocol, or first original, of the application of Rabago for the grant, and of the concession made thereon, produced from the archives in the office of the secretary of state of Coahuila at Saltillo; secondly, the alleged original power of attorney from Rabago to Blanco, by virtue of which the latter executed a conveyance of the land in the name of Rabago, undr which the defendants claim title. The latter was admitted as an ancient document in case of insufficient proof of Rabago's signature, but the jury were permitted to compare the signature with that purporting to be Rabago's affixed to the protocol of the application for the grant. Several bills of exception were taken by the plaintiff to the rulings and charge of the court. A verdict was rendered for the defendants, and judgment was entered thereon, to reverse which the present writ of error was brought. The following are copies of the documents referred to. The translation of the alleged protocol of Rabago's application, and of the concession made thereon, is in the words following, to-wit:- '[Seal of Coahuila and Texas.] Petition of Don Miguel Rabago for the purchase of eleven leagues of land in the department of Bexar. December 1, 1828.

'3d seal. Two reals. Issued by the State of Coahuila and Texas for the years 1828 and 1829.

'MOST EXCELLENT SIR: The citizen Miguel Rabago, resident of the valley of Santa Rosa, with due respect represents to you that, needing land for agricultural and raising of stock, he begs you that, by virtue of your authority, you will be pleased to sell him eleven leagues of land on the margins of the Trinity river, in the department of Bexar, or in the section which shall appear to me to be most convenient and best adapted to my interests, being all together or in different localities, offering to settle and cultivate said lands within the time prescribed by the colonization laws of the state of the 24th of March, 1825. Also, that you will be pleased to grant me the time designated by the said law to pay the dues on the said land. I ask your excellency that you will be pleased to refer my petition, for which I will be thankful.

'Leona Vicario, 28th of November, 1828.

[Signed] 'MIGUEL RABAGO.'

'LEONA VICARIO, 2d of December, 1828.

'Conformable to article 24 of the colonization laws of the 24th of March, 1825, I sell to the petitioner the eleven leagues of land he asks for of the vacant lands in the department of Texas, in the part he may point out, or in the locality most suitable to him. The commissioner whom the government will appoint will place him in possession of said leagues, and will extend the necessary titles, previously classifying the class and quality of said lands as a guide of the amount to be paid to satisfy the government dues, for which payment I grant him the time designated by the 22d article of said colonization law. A copy of the petition and decree will be given to the party, intended for his observance and the subsequent effects.

[Signed] 'VIESCA,

'SANTIAGO DEL VALLE.'

This protocol, or second original, was authenticated by a certificate annexedthereto, by the secretary of state of Coahuila, the translation of which is in the words following, to-wit:

'The citizen, Licentiate Jose Ma. Musquiz, secretary of the government of Coahuila de Zaragoza, certifies that the annexed document is the original which exists in the archives of the government of Coahuila relative to the concession of eleven [leagues] of land made to Don Miguel Rabago, in the department of Bexar, on the 2d of December, 1828. And at the request of the applicant this document is given, with the obligation of returning it when the suit in which it is to be used shall be terminated.

'Saltillo, April 6, 1881.

[Seal.]

[Signed] 'JOSE MA. MUSQUIZ, Sect'y.'

The translation of the alleged original power of attorney from Rabago to Blanco is in the words following, to-wit:

'MONCLOVA, 8th June, 1832.

'Senor Don Victor Blanco—MY ESTEEMED UNCLE AND SIR: With this I hand you the testimonio of eleven leagues of land which his excellency the governor of the state granted to me a sale of, in the department of Texas, in order that you may have the goodness to do whatever should be in your power, so that possession may be taken of them by yourself, or by a person of your confidence, giving to you the most ampl power so that you may cultivate them, may sell them, may exchange, or alienate to your entire satisfaction, because for everything I authorize you, and I will stand and I will pass in all time for that which you should do; and should this, my letter power, not be sufficient, I will grant judicially as soon as you please, and notify me that you require it, and you excusing this trouble. I place myself at your disposal as your most affectionate nephew and servant, who attentively kisses your hands.

[Signed] 'MIGUEL RABAGO, (rubric.)'- Indorsement: 'I transfer all my powers in favor of Senor Don Samuel Williams, postmaster of the town of San Felipe de Austin, in order that in my name, and as my attorney, he mat take possession of the eleven leagues expressed in this.

[Signed] VICTOR BLANCO, (rubric.)

'Monclova, 3d April, 1833.'

It appearted on the trial that the extension of final title to Rabago was made on the 13th of January, 1834, on the application of Samuel M. Williams, as attorney for Rabago; but no power of attorney authorizing him to make the application was produced or proved by the plaintiff, whose title depended on the extension thus obtained. The paper above copied, however, purporting to be a power of attorney from Rabago to Blanco, and propounded by the defendants, if their witnesses were to be believed, was found among the old papers of Williams in the custody of his son, and had on it an indorsement by Blanco transferring to Williams all the powers conferred upon him so far as to enable him (Williams) to take possession of the eleven leagues of land. The defendants claimed that after the title was thus extended, to-wit, on the 25th of May, 1836, Victor Blanco, under and by virtue of the power of attorney referred to, sold the land in question, in the city of Mexico, to one Guillermo Laguerenne by an act of sale passed before one Bonilla, a notary public; and that Laguerenne, on the 10th of January, 1837, in the city of Mexico, executed before one Madriago, a notary public, a power of attorney to Francisco Priolland, of New Orleans, authorizing him to sell all and any real estate belonging to Laguerenne; and that the latter, in pursuance of said power, did sell the said eleven leagues on the 15th of February, 1837, to one George L. Hammekin, by act of sale passed before one Caire, a notary public of New Orleans. It was admitted that the defendants had a regular chain of title from Hammekin. The course of the trial was as follows: The plaintiff first gave in evidence a duly certified translation of the title of Rabago, from the records of the general land-office of Taxas, consisting of: (1) A testimonio of Rabago's application for the grant, dated November 28, 1828, and of the concession made thereon, dated December 2, 1828. (The above testimonio was dated December 2, 1828, and signed by the government secretary.) (2) The extension of title, comprising the application for extension by S. M. Williams, as attorney of Rabago, dated December 3, 1833; the approval of the empressarios (of whom Williams was one;) the order of survey; the field-notes of the survey, etc.; concluding with a formal patent. This expediente was indorsed as filed in the land-office June 7, 1875. The plaintiff then proved the death of Rabago, and deduction of title from Rabago's heirs to himself, and rested.

The defendants, preparatory to offering their documentary evidence of title, including, among other things, (1) the said protocol, or first original, of Rabago's application for the grant, with his signature thereto, and the original concession made to him thereon; (2) the original power of attorney, above mentioned, from Rabago to Blanco; (3) the act of sale from Rabago, by his attorney Blanco, to Laguerenne; (4) Laguerenne's power to Priolland; (5) Priolland's act of sale to Hammekin,—submitted the following evidence, to-wit: The depositions taken at Saltillo, Mexico, in August, 1881, of Jose M. Musquiz, secretary of state of Coahuila, and ex...