Another v. Jackson
| Decision Date | 01 January 1854 |
| Citation | 11 Tex. 391 |
| Parties | RYAN AND ANOTHER v. JACKSON AND OTHERS. |
| Court | Texas Supreme Court |
A plea to the jurisdiction of the Court in an action of trespass to try title, on the ground that the land lies without the limits of the county, comes too late after a plea to the merits. (Note 60.)
It seems, that under the statute (Hart. Dig., Art. 667), “where the recovery of land, or damages thereto, is the object of a suit,” it may be brought in any county where part of the land lies, although the adverse party claims only a part of the land, which lies wholly in another county; and it is therefore not sufficient to allege in a plea of abatement, that so much of the land as is claimed by the defendant lies in another county, but the plea must negative the fact that any part of the land sued for lies in the county where the suit is brought.
A party, objecting to written evidence, for any cause not going to its relevancy or competency, but only for the manner of its authentication or proof, must specially assign the grounds of his objection at the trial, and cause them to appear upon the record. Objections which go to the competency of evidence, and which need not be specially taken below, appear to be objections which show, not merely that the evidence is not the best evidence, but that it is not admissible under any circumstances. (Note 61.)
It seems that purchasers, under the 24th Article of the law of 1825, could alienate, subject to the performance of the condition of cultivation by the grantee, as soon as the concession was made, before the land was selected or the title issued. (But this was the usual case of a power of attorney.) (Note 62.)
The condition of payment of the purchase money in purchases under the 24th Article of the law of 1825, where the terms of Art. 22, as to credit, were granted, was a condition subsequent, the failure to perform which cannot be set up by one claiming by patent issued under the Republic.
It does not appear by any evidence in the record, nor by any law to which we have been referred, that the municipality of Liberty was comprised within the same boundaries as the county of Liberty; or that the land in question was not within the limits of that municipality. (The land lay principally in Trinity county, and partly in Polk, the original survey having been commenced in what is now Trinity.) (Note 63.)
Where a patent to James McKim (the defendant), assignee of Polly Ryan, together with a certified copy of the original certificate and field notes on file in the General Land Office, all for one league and labor, were offered in evidence (the latter to prove color of title before the patent), and the Court rejected the certified copy of the certificate and field notes, but admitted the patent, the Court said the certificate and survey were rightly rejected, for the reason that the certificate was not accompanied by evidence of its having been recommended as genuine; that it did not appear that the patent was issued upon this certificate, and there was no evidence of its genuineness; but that if the evidence had been admitted, there was not such possession as was necessary to make good the defense of limitation, because the defendant who claimed title, had failed to prove that his co-defendant, who was the only person in possession a sufficient time to complete the statutory bar, held the possession under him or in his right. (The proof was that the defendant “got James Ryan to go there,” that Ryan died soon after, and that his widow Kitty Ryan, the co-defendant, had been living there ever since.
It is not legitimate to request the Court to give certain Articles or Sections of the law, in charge to the jury.
Appeal from Polk. The statement of facts did not contain either of the documents referred to in the bill of exceptions, but read as follows: And so it continued as to all the documentary evidence. There was copied into the transcript what purported to be a copy, in Spanish, from the records at Nacogdoches, of a title such as that under which the plaintiff claimed. It was certified as follows:
In connection with the foregoing was a translation certified as follows: Dated General Land Office, Austin, January 27th, 1840. Then followed the certificate of the Commissioner of the General Land Office, that Western, “whose signature appears above, is Translator to this office, duly appointed according to law.” They did not purport to be transcripts from the General Land Office; nor to have been given in evidence; as they not only were not embraced in the statement of facts or bill of exceptions, but did not even answer the description contained in the bill of exceptions, to wit: “a certified transcript from the Land Office, of a Spanish title to De la Garza,” etc.
The concession to De la Garza was not descriptive, but the lands were to be selected wherever it might suit him. Blanchet selected the lands and obtained the title, in 1834. The purchase money was not paid within the time required by the law. It was proved, however, that it was paid to G. W. Miles, Receiver, in 1842, in Texas promissory notes. The league of land, claimed by the title to De la Garza, lay principally in Trinity county, and partly in Polk, the original survey having been commenced in what is now Trinity.
The certificate and survey, offered in evidence by the defendants, and rejected by the Court, were certified by the Commissioner of the General Land Office, to be correct copies of the originals on file in this office; were in favor of James McKim, assignee of Polly Ryan, and were for a league and labor. The patent, which was admitted, was also to James McKim, assignee of Polly Ryan, and was for a league and labor. The other facts of the case will be found in the first part of the opinion.
Yoakum & Branch, for appellants. I. The plaintiffs had no right to bring a suit in Liberty county, to try the title to lands lying in Houston county. The suit should be brought in the county where the land lies. Under the general issue, the defendants should be allowed to prove this fact. John R. Johnson, the witness and Surveyor, proved it. The defendants pleaded specially that their league lies entirely out of Liberty county, and in Houston county, and disclaimed all title to any of the land lying in old Liberty county, as set out in plaintiffs' petition.
II. The deed from Blanchet to Hugh Jackson excepts twenty acres of the league. The same exception is in the deeds from Hugh to John and James Jackson. So plaintiffs show no title whatever in the twenty acres excepted; yet they have judgment for the whole league.
III. The Spanish documents, presented in evidence as a muniment of title from the government in this case, are sui generis. The first paper presented purports to be a power of attorney from De la Garza to Blanchet, dated 18th March, 1833. The next paper, dated the 11th February, 1834, is a petition from Blanchet to Woods, the Alcalde of Liberty, averring the sale of land from the government to Garza, designating the same and asking a survey. The next is the order made by Woods admitting the application and directing Hardin to survey the land. The next is the survey, without any date. The next is the petition of De la Garza, dated 31st August, 1830, to the Governor of Coahuila and Texas, asking for the grant of five leagues. The order then follows, dated October 19th, 1830. Then follows the decree of Alcalde Woods, conveying the land, dated 5th July, 1834. Then follows the certificate of Henry Rueg, dated 6th August, 1835, directed to the Political Chief of the department of Nacogdoches, certifying the Spanish documents aforesaid to be a legal copy of the original, which, at the request of the party interested, he (Rueg) had ordered to be placed in the archives of that department then under his charge. A translation of these documents then follows certified from the Land Office in 1840.
Now, is this Spanish document a paper which the law permits to be read as a title? It is not a testimonio or protocol, such as is given to the grantee, under our laws, as a muniment of title. It is not a certified copy from the General Land Office (Hart. Dig., Art. 744), of the original. The testimonio, with the certificate which makes it such, is signed by the Commissioner, not by Rueg. The latter informs us he has charge of the office of the department of Nacogdoches. How did he get possession of the original? Its proper place was in the Alcalde's office, until it was ordered to be placed in the General Land Office. Where is the original? It does not appear from the papers to be in existence. Nothing but Rueg's copy is in the Land Office. On the 10th October, 1848, Mr. Abbott, counsel for plaintiffs, made an affidavit (p. 34), continuing the cause for want of a translated copy from Austin of the Spanish title, stating that he could not get one that would be evidence from any other source. Yet that translated copy from Austin never appeared; the Judge permitting them on trial to read Rueg's copy, and the translation of Rueg's copy made in 1840. We know of no law permitting Rueg's copy to be filed in the Land Office, still less of a law allowing a translation of it to be read in evidence.
IV. The reading of the power of attorney is objected to on like grounds. It is not a muniment of itself. It is not in accordance with...
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