Biencourt v. Parker

• Decision Date: 01 January 1864
• Citation: 27 Tex. 558
• Parties: P. BIENCOURT AND ANOTHER v. F. J. PARKER.
• Court: Texas Supreme Court

27 Tex. 558

P. BIENCOURT AND ANOTHER

v.F. J. PARKER.

Supreme Court of Texas.

1864.

By force of the constitutional inhibition against the holding of two lucrative offices by the same person at the same time, the acceptance of and qualification for a second office, incompatible with the precedent one, ipso facto, vacates the precedent office; and neither a quo warranto, nor other amotion from the office thus vacated, is necessary before the vacancy can be supplied.

Under the state constitution of 1845, the offices of notary public and county clerk were incompatible; and when a notary public was elected county clerk, and qualified as such, his office as a notary was thereby absolutely determined.

In support of exceptions to a deposition which purported to have been taken by a notary public, it was competent to show, by parol evidence, that the person taking it had previously ceased to be a notary by the acceptance of another office of profit; and that fact being thus established, the deposition was properly suppressed. A single act of this character could not constitute him a notary de facto, and so give validity to the deposition.

NOTE.--Thulemeyer v. Jones, 37 Tex., 560.

The cases of Yancey v. Norris (ante, 40), and Taylor v. Watkins (26 Tex., 688), cited as establishing the principles by which the courts are to be guided in the presumption of grants from the state.

NOTE.--Plummer v. Power, 29 Tex., 6;Paschal v. Dangerfield, 37 Tex., 273.

In the adjudications of this court, a distinction is recognized between presumptions of grants from the state, and presumptions of intermediate links in a chain of conveyance. The case of Daily v. Starr (26 Tex., 562) cited as an illustration of the latter class of presumptions.

NOTE.--Johnson v. Shaw, 41 Tex., 428.

See this case for evidence held to be too meager and indefinite to warrant either a presumption of a grant from the government to a public corporation, or a presumption that the title of the former owners had been divested out of them and acquired by the public corporation, in which it was attempted to show an outstanding title to the land in controversy.

In action of trespass to try title, a discontinuance or abandonment of the suit by one of the plaintiffs does not abate the suit, nor preclude a recovery by the other plaintiff; nor will the fact that there is verdict and judgment for only one of the plaintiffs below, furnish a ground for the reversal of the judgment at the instance of the defendants.

In trespass to try title, mesne profits are recoverable as part of the plaintiff's damages, and it is immaterial that they are not called damages in the petition. Where the petition prayed judgment for a certain sum as damages, and also for mesne profits, and the verdict allowed as damages a larger sum than was claimed, eo nomine, in the petition, and the evidence showed that, inclusive of mesne profits, the verdict was not for a greater amount than the plaintiff was entitled to recover: Held, that the verdict should not be disturbed.

ERROR from Calhoun. Tried below before the Hon. Fielding Jones.

This was an action of trespass to try title and for damages, commenced in Cameron county on the 3d day of September, 1852, by Francis J. Parker and Miflin Kennedy, against Pierre Biencourt and Joseph Mante, as defendants. The property in controversy was a lot in Brownsville, and the buildings thereon.

This cause was continued from term to term until the spring term, 1855, when, upon a showing made by the plaintiffs in this and other cases involving titles to town property in Brownsville, the venue was changed to Nueces county. At the spring term, 1857, of the Nueces district court, the judge presiding announced that he was disqualified from sitting in the case by reason of having been of counsel, and, in consequence, the venue was changed to the county of Calhoun.

The petition of the plaintiffs alleged their ouster by the defendants on the 1st of August, 1852, and averred that the defendants had “ever since continued in such wrongful possession, taking and receiving the fruits and profits of said land to the value of one thousand dollars by the year, and other wrongs then and there did, to the damage of your petitioners five hundred dollars.” Their prayer was for “judgment for their damages aforesaid, mesne profits and costs of suit,” and for possession, etc.

The defendants pleaded not guilty and title in themselves, and suggested valuable permanent improvements in good faith.

By a document filed August 13, 1857, the plaintiff, Kennedy, “authorized a discontinuance,” having, as the document expressed, “parted with his interest in the subject matter of this suit.” No order of the court appears on the subject.

The case came to trial on the 14th of August, 1857. It is not necessary to detail the deraignment of the plaintiff's title from Jose de la Garza, the original grantee, more explicitly than is done in the opinion.

The plaintiff, Parker, introduced the depositions of three aged Mexican witnesses, as to the possession of the tract known as “El Espiritu Santo,” which comprised the site of the city of Brownsville. The witnesses testified, in general terms, that it had, for as long as they could recollect, been in the possession of Don Jose de la Garza, and those claiming under him by devise, descent and otherwise; but on cross examination, they stated that portions of the tract, including the property in controversy, were, for some years previous to the occupation of the American army in 1846, in the possession and cultivation of one Miguel Salinas and others, who held it as tenants of the city of Matamoros. That the city of Matamoros, from the year 1830, had leased out these portions as part of the ejidos, or town lands; that any one who chose could lease from the city a certain amount of its ejidos at the rate of one dollar and a half per year, but no person could lease more than one allotment; but that the lessee had the right, with the assent of the city authorities, to transfer his lease to another, by which means the same person could obtain more allotments than one. None of the witnesses knew how long, previous to 1830, the city had leased out these lands, nor did they throw any light on the origin of the claim or possession of the city. The leasing of the lands was the only exercise of ownership by the city of which the witnesses made mention.

The defendant offered in evidence the deposition of Felipe Salazar, for the purpose of authenticating by him, as secretary of the ayuntamiento of Matamoros, certain copies taken from the archives of the city. This deposition purported to have been sworn to before Budd H. Fry, as a notary public, on the 23d day of May, 1857. The plaintiff objected to its being read, because “in law, and in fact, said Fry was not, at the time of taking said deposition, a notary public, nor authorized to take the same, which objections had previously been filed in writing.” The plaintiff offered Israel Bigelow as a witness to prove that Fry was county clerk of Cameron county at the time the deposition was taken by him. The defendants objected to the admission of the testimony of Bigelow, “because no evidence of such fact was admissible, and particularly oral evidence.” The court overruled the objection of the defendants, and admitted the witness, who testified that Fry was elected county clerk at the general election in August, 1856, and since that time had been acting as such county clerk, and had been generally recognized as county clerk of Cameron county; that before said election he had been a notary public, but since his election witness did not know of his acting as a notary, except in taking the depositions in the class of cases of which this is one. On this proof the court excluded the deposition of Salazar, for the reason that Fry, by whom it was taken, was not a notary public, nor legally competent to take it. The defendants excepted.

In consequence of...