Allen v. Parmalee

• Decision Date: 02 January 1906
• Docket Number: 1,449.
• Citation: 142 F. 354
• Parties: ALLEN et al. v. PARMALEE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

142 F. 354

ALLEN et al. v. PARMALEE et al.

No. 1,449.

United States Court of Appeals, Fifth Circuit.

January 2, 1906

John M Duncan and A. C. Bullitt, for plaintiffs in error.

Frank Andrews, H. M. Garwood, and W. L. Hill, for defendants in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

This was the Texas statutory action of trespass to try title to land. The pleadings are formal. It was originally brought by certain of the plaintiffs in error and the others of the plaintiffs in error came into the action on leave as interveners. During the trial the following agreement was had 'It is agreed among the plaintiffs, defendants, and interveners and their counsel, in open court, that plaintiffs and interveners have such title to the land in controversy as was in the original Andrew Dexter at the time of his death; he being the same Dexter whose estate was administered upon in Nacogdoches county, Texas, as shown by the probate proceedings in that county heretofore introduced in evidence by plaintiffs and interveners, and such title as was in Andrew Alfred Dexter and Charlotte S Dexter, in 1843, at the time of their contract with Wade Allen, heretofore introduced in evidence, and that plaintiffs have such title as was in the original Wade Allen and Thos. H. Watts. Further, that if plaintiffs and interveners shall be entitled to a recovery on this trial in this case that the plaintiffs will recover an undivided one-half of the land in controversy and the interveners an undivided one-half.'

In this opinion the distinction between plaintiffs and interveners will be dropped, and those parties will be called plaintiffs. The plaintiffs introduced a duly authenticated translation from the Spanish archives in the general land office of the state of Texas, beginning with a document marked 'N 1,' which in its material part is as follows:

'In the town of Nacogdoches and on the twentieth day of the month of August, one thousand eight hundred and thirty-one, before me, citizen Manuel de los Santos Coy, only constitutional alcalde of the aforesaid town and instrumental witness, who will be hereinafter named, besides my witnesses of assistance with whom I act in conformity with law, appeared citizen Jose Ortega, captain of the 12th battalion permanent, which is now guarding this frontier, in person, whom I certify that I know, and declared: That by these presents he grants and confers all his power, full, complete and sufficient to the extent required by law and with such degree of validity as may be necessary, unto the citizen Frost Thorn of this neighborhood, especially in the representation and exercise of the rights and actions accruing to the grantor to solicit, of the person or persons appointed for the purpose, the possession of eleven leagues of land which he acquired by purchase from the supreme government of the state, with the privilege of selecting them in the place or places which he may deem most suitable, together or in separate tracts, according to the tenor of the concession, dated the twenty-third of September, one thousand eight hundred and thirty, which I certify having seen and which the grantor delivered to his attorney to do and exercise in the name of the grantor all that he could do if present, in as much as for all the aforesaid and everything annexed dependent, pertaining or incident thereto he grants and confers upon him the most full and extensive power, without limitation whatever, and so that the absence of no stipulation or requisite not herein expressed shall prevent this power from having all the effects for which it is intended, in as much as whatever the same may be, he gives it as herein inserted as if it were literally written, that he can name substitute, revoke them and choose others anew, with free, full and general administration in as much as he relieves them all in so far as the law permits; and to adhere to and consent to everything done by his attorney by virtue of this power he duly binds himself and all his property and renounces the laws in his favor.'

As part of document No. 1 the following also appears:

'In the town of Nacogdoches, the sixteenth day of November, one thousand eight hundred and thirty-two, before me, citizen Jose Maria Mora, only constitutional alcalde of the aforesaid town, personally appeared citizen Frost Thorn, with whom I certify I am acquainted, and declared: 'I have substituted, and do by these presents substitute citizen Andres Dexter as my attorney with the same faculties hereby granted him that I as attorney hold.'

'In testimony whereof he signed with me and witness of my assistance. I certify.

Frost Thorn.' The other authenticating signatures we omit.

This is followed by a document No. 2, containing the application of Jose Ortega for a grant to him in sale conformably to article 24 of the colonization law of Coahuila and Texas of March 24, 1825, for 11 leagues of land in the vacant lands of the department of Nacogdoches in the place or places which may best suit his interest, with the privilege of selecting them together or in separate tracts, etc., and on it is indorsed the order granting the concession, as follows:

'Conformably to article 24 of the colonization law of March 24, 1825, I grant in sale to the applicant the eleven leagues for which he applies in the vacant lands of the state in the place which suits him best, after a sufficient quantity for the payment of what the states owe the federation, has been selected by the commissioners of the supreme government. The constitutional alcalde of the municipality, to which the aforesaid land belongs, will put him in possession of said leagues, and issue the corresponding title, ascertaining beforehand their classification to determine what should be paid the state, for the payment of which I grant him the terms granted by article 22 of the aforesaid law. A copy of which application and this decree will be given by the secretary to interested party that he may proceed with it to the commissioners to secure the effect desired and consequent.'

As a part of this document No. 2 appears an act of sale by Jose Ortega to Frost Thorn in which he (Ortega) invokes the right conceded to him by article 27 of the state colonization law, and acknowledges that he confers and grants in real and public sale as a property right (heritage), forever unto citizen Frost Thorn of this neighborhood, the following, to wit (describing the concession), under the same conditions, privileges, and obligations imposed upon the grantor for possession and title, of which the same purchaser holds a special power conferred the 20th day of the present month, and for the consideration of $5,000, the purchaser to pay the cost of the survey, the commissioner stamps for the issuance of title and the rights of the state to the value of the lands, in accordance with their price and according to law, which expenses are to be regarded as an augmentation of the price above stated for which the concession named was sold, with the customary covenants then in general use in such transactions. This act of sale is dated August 22, 1831. Immediately after this document No. 2 comes the application of Andres Dexter:

'To the Only Constitutional Alcalde: I, Andres Dexter, citizen of the town of San Felipe de Austin, and now a resident of this town, without prejudice to my legal rights, with respect represent, that conformably to the judicial power with which the necessary oath accompanies under No. 1, I am the attorney substitute for citizen Frost Thorn, of this neighborhood, to apply for and obtain possession of and title to eleven leagues of land which was acquired from the supreme government of the state by Captain Jose Ortega, as evidenced by the document of concession dated twenty-third of September, one thousand eight hundred and thirty, which is also joined with proper solemnity under No. 2, and as one of the clauses contained in the aforesaid power, with reference to the concession, authorizes the interested party to select the lands together or in separate tracts, provided they are entirely vacant, it suits my interest that their location be made on the east bank of the Trinity river in any place suitable. To that end I pray you to dictate the conducive decrees as commissioner of the supreme government appointed for this case and according to the tenor of concession, document No. 2, to have the lands measured, surveyed and delineated by an apt surveyor and a corresponding title issued me as the record directs, in as much as I guarantee all the costs and swear to the necessary, etc.

'Nacogdoches, 17th of November, 1832.

'Andres Dexter.'

Thereupon the proper action was taken by the constitutional alcalde of the municipality to which the land belonged to put Andres Dexter in possession of the leagues embraced in the concession and issue to him the corresponding title. The alcalde recites in the title which he gave the interested party that:

'I grant, convey and put citizen Andres Dexter in real and personal possession of two leagues of land (the land involved in this case) as substitute attorney of citizen Frost Thorn. * * * I issue the present instrument and order that a certified copy of this decree, with a map of the land made by the surveyor of the land attached, be transcribed and handed to the interested party that it may serve him as a title of property, that he may possess and enjoy the land for himself, his children and successors, or whoever of him or them cause or right may have, on condition that no one shall dispossess them of the lands, except they first be heard and overcome in court.'

The town of San Felipe de Austin was the capital of Austin's colony. Andres Dexter...