Cavazos v. Trevino

• Decision Date: 01 January 1871
• Citation: 35 Tex. 133
• Parties: MARIA JOSEFA CAVAZOS v. MANUEL TREVINO AND OTHERS.
• Court: Texas Supreme Court

35 Tex. 133

MARIA JOSEFA CAVAZOS

v.MANUEL TREVINO AND OTHERS.

Supreme Court of Texas.

1871.

1. Plaintiffs, in action of trespass to try title, offered in evidence, as a muniment of their title, a copy of a testimonio of a title of possession executed in 1829 by an alcalde of Matamoras, who, in 1857, appeared before the United States consul at Matamoras and acknowledged the execution of the testimonio. The document offered comprised not only the land in controversy, but also two adjacent tracts conceded to other grantees, and also the final title to one of these other grantees, which last instrument bore the signatures of the then governor and secretary of the state of Tamaulipas; and the United States consul, besides authenticating the acknowledgement of the alcalde, certified that two certain affiants appeared before him and made oath that the governor and secretary were both dead, and that their signatures were genuine. On these proofs the document was recorded in Cameron county, and was now offered as a recorded instrument. The defendant objected, alleging that it was not such an instrument as was permitted by law to be recorded, being a copy of a title to land issued by the state of Tamaulipas, a foreign government, and not a patent issued by the republic or state of Texas, nor a copy of a title or paper found in the general land office. Held, that it was not error to overrule these objections, and to admit the document as an “instrument of writing of and concerning lands and tenements,” entitled to be recorded under the act of May 12, 1846. Pas. Dig. art. 5001, et seq.

2. The prohibition against the colonization of the twenty border and ten littoral leagues, contained in the national colonization law of Mexico (art. 546, Pas. Dig.), had no application to grants of land to citizens of Mexico; it applied only to foreign colonists. Arguello v. United States, 18 How. 548, cited by the court.

3. The colonization law of Tamaulipas did not, in all cases, limit grants of land to five leagues. It was competent for the executive of that State, on a proper showing of the necessities of the grantee, to nearly double that quantity; and as that functionary was the proper judge of such necessities, this court will not question his exercise of the power.

4. This court has repeatedly announced that it will defer to the political and judicial authorities of other governments in the administration and interpretation of their own laws; and this doctrine applies to grants within the littoral leagues made to Mexican citizens by the political authorities of Tamaulipas, even after the promulgation of the national colonization law of 1824.

5. Long-continued and peaceable possession under a Mexican grant, undisturbed by any action of the political authorities, raises a presumption that the grant was regularly and legally made under the laws of Mexico.

6. The case of Cavazos v. Trevino, decided by the supreme court of the United States, and reported in 6 Wallace, 773, referred to, and the rulings therein approved.

APPEAL from Nueces. Tried below before the Hon. M. P. Norton.

This cause was decided in the district court as long ago as 1858. It was instituted in the county of Cameron, within which the land in controversy is situated, and the petition was filed in the district court of that county on the ninth of April, 1852. The venue was changed to the county of Nueces.

The land in controversy was an extensive tract comprising five and a half leagues, and extending from the mouth of the Rio Grande for some distance up that stream. It is known as the “San Martin grant,” and is one of the specified tracts to which the state of Texas, by act of the legislature of February 10, 1852, relinquished all claim in favor of the original grantees, their heirs or assigns. See Pas. Dig. art. 4461, No. 35, under the caption of “County of Cameron.” The original grantee of this tract was Ignacio Trevino, and his heirs and administrator are the plaintiffs and appellees in this cause. The grant itself was made in the year 1829, by the authorities of the state of Tamaulipas, within whose dominions the land lay.

Maria Josefa Cavazos, the defendant and appellant, was part owner of the still more extensive grant called “El Espiritu Santo,” which comprises fifty-nine and a half leagues, or something over two hundred and sixty thousand acres. She claimed under Don Salvador de la Garza, the original grantee of the crown of Spain, in the year 1781. Her defense was, that the lands known as the San Martin, and now in controversy, were comprised within the limits of the Espiritu Santo grant, and she asserted this by plea in reconvention also.

The material facts involved in the questions raised and decided are disclosed in the opinion of the court. The case of Cavazos v. Trevino, reported in 6 Wallace, United States Reports, and referred to in the opinion of this court, was an action brought in the District court of the United States, at Brownsville, Texas, by the appellant in the present cause, against the appellee, for the recovery of the same land. The report of that case, therefore, will afford further details respecting the litigation to such gentlemen as desire more specific information than that here furnished.

The written arguments filed in this cause, by counsel on both sides, on an application for a rehearing as well as on the original submission of the case, were very able and elaborate; and the reporter is well aware that the extracts now presented with this report do the counsel but scant justice. This, however, is often unavoidable, in consequence of the limited space allowable to the arguments of counsel. The motion for a rehearing was overruled.

W. G. Hale, for the appellant.

I. The deposition of Domingo de la Garza was not properly taken; the person taking it not being a notary public at the time; and the objection to its admission ought to have been sustained. A notary accepting the office of county clerk vacates his office as notary. Const. state, art. 7, § 26; Biencourt v. Parker, Galveston, 1864. In this case Fry was not even a notary de facto, for he declined to act, except at the risk of the plaintiff's attorney.

II. The document, marked A, purporting to show the proceedings which led to the issuance of the title to Ignacio Trevino, was improperly admitted in evidence; for, 1. The deposition of Domingo de la Garza, upon which it was offered, was itself improperly admitted, as before shown. 2. That deposition stated that the document was a copy of the testimonio of title, and did not state that it was a copy of the protocol of title. 3. The document was not legally recorded; for only patents from the republic or state, or copies of titles in the general land office could be properly recorded. Hart. Dig. 2789, 2800.

It will not do to say that the act of 1846 authorized the recording, because the act of 1846 specified particularly the classes of document emanating from the government which could be recorded, and by necessary intendment excluded all others. The paper offered by the plaintiffs was only a foreign copy--not even the testimonio.

III. The document B. C. was not properly recorded, and the other papers offered in connection therewith--the grant, survey, etc.--were improperly admitted, because, at best, they only tended to show a void grant.

1. Because they showed a grant of land within the littoral leagues, without the consent or approbation of the general government. Edwards et al. v. Davis et al. 3 Tex. 321; Republic v. Thorn, 8 Tex. 499; Smith v. Power, 14 Tex. 146; Rec. de Indias, IV, tit. 7, ch. 6, Gen. Col. Law, Aug. 18, 1824. The attempt on the part of the plaintiff's counsel to distinguish this case from those already decided by the court, on account of a supposed difference between the laws of Tamaulipas, and of Coahuila and Texas, is entirely unfounded, because the general colonization law of 1824 imposed the restriction, and of course applied to all the states alike.

2. Because the alleged grant appeared on its face to include over five leagues of land, and was thus prohibited by law, and not within the power of the officers to make. Col. Law of Tamaulipas, art. 25: Patterson v. Winn, 11 Wheat.; U. S. v. Cambuston, 20 How. And as it is impossible for the court to revise the survey so as to exclude the excess, the whole grant must fail. Nor can the authorization to make two grants to the same person permit more than five leagues to be united in one grant, because both clauses must be construed together and have proper effect, and the construction must therefore be, that while two grants may be made in different places to the same person, both grants together shall not comprise more than five leagues.

3. Because it appears that no citation was served on Francisca Cavazos or the defendant, then co-proprietors of the land; and the proceedings and grant were therefore void as to them. Col. Law, Tamaulipas, arts. 22-9; Curia Filipica, I. 12, 2.

IV. From an examination of the Espiritu Santo grant, under which the defendant claimed, as it appears in both translations, it is clear that it included the land in controversy. The contest as to this point may be reduced to a narrow compass. It appears that after the grantee, Salvador de la Garza, had been in possession of a large tract of land, extending down to the coast, for about eleven years, he denounced it as vacant public land, and applied for its purchase. His application was granted; and in the proceedings preliminary to the survey, five witnesses were called to identify the land denounced. They all stated that the tract was a natural enclosure (potrero), bounded on the south by the Rio Grande; on the east by the sea and lagunas communicating with the sea; on the north by the Aroyo Colorado; and on the west by a dense thicket extending from the aroyo to the river. The “Vista de ojos” was ordered, and resulted in the same conclusion as to boundary. The...