3 S.W. 264 (Tex. 1887), Sydeck v. Duran

• Citation: 3 S.W. 264, 67 Tex. 256
• Opinion Judge: [67 Tex. 258] GAINES, J.
• Party Name: SYDECK and others v. DURAN and others.
• Attorney: [67 Tex. 257] George P. Finlay, for plaintiffs in error. Stayton & Kleberg, for defendants in error.
• Judge Panel: STAYTON, J., did not sit in this cause.
• Case Date: January 25, 1887
• Court: Supreme Court of Texas

Page 264

3 S.W. 264 (Tex. 1887)

67 Tex. 256

SYDECK and others

v.

DURAN and others.

Supreme Court of Texas

January 25, 1887

Appeal from Victoria county.

Trespass to try title. Defendants had judgment below.

Page 265

[67 Tex. 257] George P. Finlay, for plaintiffs in error.

Stayton & Kleberg, for defendants in error.

[67 Tex. 258] GAINES, J.

This was an action of trespass to try title brought by appellants, as heirs of Antonio Sydeck, against Juan Duran and M. L. Labosky to recover a league of land in Refugio county. The suit was originally instituted in the county in which the land is situated, but was subsequently transferred to the district court of Victoria county. Before the change of venue, the surviving widow and heirs of John Welder and the heirs of James Power appeared, and made themseives [67 Tex. 259] parties defendant, alleged that the original defendants were their tenants, and pleaded their respective titles. Appellants claimed under a grant issued to their ancestor, Antonio Sydeck, on the fourth day of August, 1832, by the alcalde of Goliad. The heirs of John Welder claimed a portion of the land sued for under a title extended to one Manuel Blanco on the twenty-ninth day of October, 1834, issued by the commissioner of Power & Hewitson's colony; and the other appellees, the heirs of James Power, set up title to the other portion of the premises in controversy under a grant of two and a half leagues of land, conceded to Power & Hewitson, on the twelfth of October, 1834, as a part of the premium lands to which they became entitled under their contract.

The cause was submitted to the judge in the court below without a jury, and the findings of his conclusions of fact and law appear in the record. There is but little controversy about the facts. We state such of them as we think necessary to be considered in the decision of this case. The land in controversy lies between the Guadalupe and the Nueces rivers, and is within the limits of the augmentation to Power & Hewitson's colony if it be within 10 leagues from the sea. On the twentieth day of April, 1831, Antonio Sydeck made application, on behalf of himself and a sister, as heirs of their deceased father, for the land. His application was favorably reported by the ayuntamiento, with a statement that the grant applied for lay without the littoral leagues. The order granting the application, dated July 27, 1831, directed that the commissioner of the colony to which the land belonged, or, in case it belonged to no colony, the first or only alcalde of the municipality, should put the applicant in possession, and extend the final title, which was accordingly done on the fourth of August, 1832, by the alcalde of Goliad. On the twenty-seventh day of October, 1834, Sydeck made application to the commissioner of Power & Hewitson's colony, stating that he was convinced that his previous grant was within the littoral leagues, and that the 'judge' (meaning the alcalde) had no authority to make it, and prayed that the commissioner would issue to him 'a formal title to land upon the same run' 'according to the surveys recently made,' etc. His application was favorably indorsed by one of the contractors, and a final title extended, all on the same day, to a league lying on the other side of the river from his original grant. On the twenty-ninth day of October, 1834, Manuel Blanco (who also seems to have [67 Tex. 260] been called Jose Manuel Blanco) made...