Flores v. Hovel

• Decision Date: 02 February 1910
• Parties: FLORES et al. v. HOVEL et al.
• Court: Texas Court of Appeals

125 S.W. 606

FLORES et al. v. HOVEL et al.

Court of Civil Appeals of Texas.

February 2, 1910.

Rehearing Denied March 2, 1910.

Appeal from District Court, Bexar County; Hon. J. L. Camp, Judge.

Action by Jose Maria Flores and others against J. C. Hovel and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

J. B. Polley, Swearingen & Tayloe, and Don A. Bliss, for appellants. T. B. Cochran, Denman, Franklin & McGown, Houston, Boyle, Storey & Davis, and Cobbs, Taliaferro & Cunningham, for appellees.

NEILL, J.

This is an action of trespass to try title brought by appellants against J. C. Hovel and a number of others to recover possession and title of a certain tract of land containing 22 acres situated in the city of San Antonio, and specifically described in plaintiffs' petition. The defendants filed separate answers. Hovel, after disclaiming all of the land save a designated portion thereof, as to which he pleaded not guilty, the 3, 5, and 10 year statutes of limitation, and improvements in good faith. In replication to the pleas of limitation, certain of the defendants pleaded coverture. By consent of the parties, a severance of the case as to appellees was granted. The case then, as between plaintiffs and them, was tried before a jury, who, in obedience to a peremptory charge of the court, returned a verdict in favor of appellees. From the judgment rendered upon such verdict this appeal is prosecuted.

The first assignment complains of the court's peremptorily instructing a verdict for the defendants. The main proposition asserted under it is: First: "The grant to Vicente Flores, made by the Spanish government, acting through Baron Riperda, Governor of the province of Texas, in 1778, vested in Vicente Flores a perfect title to the land described in the grant, subject to a condition subsequent, and not an inchoate title."

In addition to it, are asserted these sub-propositions: (1) "A perfect title is one that requires no further act of the granting power to pass the fee in the lands granted to the grantee, and an imperfect or inchoate title is one that requires a further exercise of the granting power to pass the fee in the lands. (2) The obligation to till and cultivate the land within the time prescribed by law, as well as to keep a horse, arms, and ammunition for the purpose of going out against the public enemy when necessity should demand, and he should be ordered to do so in conformity with the royal regulations, was a condition subsequent, which did not prevent the title from vesting in Vicente Flores. (3) The Governor of the province of Texas, at the date when he made the grant to Vicente Flores, September 22, 1778, had authority to make such grant extending the final title. (4) Grants of town lots, and labores (small tracts to till) made by the Governor of the province of Texas to settlers of a town, out of lands already set apart by the crown of Spain for such purpose, were not required to be confirmed by the viceroy or any audiencia at the time the grant of the labor in question was made to Vicente Flores by Baron Riperda, Governor of the province of Texas, out of the lands already set apart by the crown of Spain for distribution among the settlers of the village of San Fernando and the royal presidio of San Antonio de Bexar."

The plaintiffs introduced in evidence an original document, in Spanish, produced from the office of the county clerk of Bexar county, Texas, together with what was shown to be a correct translation of the same into English, which is as follows:

"To the Governor: Vicente Flores, a resident of this village, in due form of right and to his benefit, before you appear and say: That there being a vacant piece of land at the end of the New upper Labor of Santa Maria, bounded on the West by the ditch of the San Pedro Springs; on the South by lands of Mr. Francisco Xavier Rodriguez; on the East by the course of the upper Labor ditch, and on the North by the San Pedro Springs hills: To you most humbly asks that you be pleased to donate the same to him, as he is without any land nor water to maintain himself and family, and enable him to use the surplus water from the upper Labor ditch to cultivate it, or otherwise for his maintenance. Therefore he asks and beseeches that you may command and do as asked, and to admit this writing on this present paper, as there is none with seals in this province, for all of which your petitioner will receive every favor and the justice he seeks, declaring this to be in good faith, without malice, and in all that is necessary, etc.

                "San Antonio de Bexar, August 24th, 1778
                             "Vicente Flores. [Rubric.]
                

"Juan Maria de Riperda, Baron of Riperda, Colonel of Cavalry, and Governor of the Province of Los Texas, its Missions, Conquests and Frontiers, and Commandant of the Army of the same, having viewed the foregoing writing, the same is acknowledged as presented and admitted, and in consideration of the statements in it made by the neighbor Vicente Flores, as well as to the increase of this settlement and the cultivation of lands, and the land asked for by petitioner being entirely vacant: In the name of his Majesty (whom God may keep) I hereby cede and grant the same to him under the same boundaries asked for, and in which form he may possess, enjoy and use the same as the legitimate owner, now and forevermore, for his heirs and successors, with all its ins and outs and appurtenances, as customary, its quiet and peaceable possession without contradiction of better title; under the precise obligation to till and cultivate it in the time prescribed by law, as well as to keep a horse, arms and ammunition to go forth against the enemies whenever required or necessity may arise, or whenever he may be commanded so to do in accordance with royal commands: For all of which, I ought to command and by these presents do command, that the aforesaid Vicente Flores be placed in possession of the land he asks for, with all formalities provided by law, for which purpose I hereby nominate the Lieutenant Governor of this Province, Simon de Arocha, who will survey it and state the varas contained in each course of the aforesaid land, placing a permanent mound, and who will practice this survey together with the procurer of this Village, the party adjacent thereto and other witnesses, together with the attesting ones, and which proceedings will be made to appear in the aforesaid possession which will be made at the foot hereof, and to record this original in the archives of this Government under my charge, and also hereby command to issue to the party one or more copies if he should so require them.

"Thus I have provided, commanded and signed in this Royal Province and Village of San Fernando this 22nd day of September, 1778, acting under delegated powers with my attesting witnesses in fault of a Notary Public, there being none as the law directs, and on this common paper, there being none with seal. To all of which I certify.

                      "J. M. Baron de Riperda. [Rubric.]
                "Attest: Antonio de la Barcenas. [Rubric.]
                        "Fernando de Beramendi. [Rubric.]
                

"In the village of San Fernando, Government of Texas, on this 25th day of the month of December, 1778, I, Simon de Arocha, Lieutenant General of this Province, in company with the procurer of this village, and in compliance with the command of the Governor, Juan Maria de Riperda, went to the piece of land aforesaid and summoned the nearest neighbors and the witnesses Manuel Flores y Valdez and Manuel Gonzales Vibas and Toribio de le Fuente, and measured from North to South three hundred and twenty-five varas, and from East to West two hundred and sixty-three, bounded on the South with the suerte and a half of land of Francisco Xavier Rodriguez, on the West by the main ditch of this village, on the North and East by vacant land, this being the same boundaries asked for by Vicente Flores, whom in the name of his Majesty (who God may keep) and by mandate of the aforesaid Governor under the conditions set forth in the foregoing decree gave him possession of the aforesaid piece of land, which he took quietly and peacefully, without contradiction as its true owner and possessor; he placed boundaries, placed stakes and made all other demonstrations as customary and as legitimate owner. And in order that it may so appear I note the same with my attesting witnesses, to which I certify.

                            "Simon de Arocha. [Rubric.]
                  "Attest: Merejildo de la Santa. [Rubric.]
                           "Angel Navarro.       [Rubric.]"
                

The appellees, by their first cross-assignment of error, complain of the court's admitting said writings in evidence. The substance of the propositions under this cross-assignment is that they were inadmissible because: (1) They did not come from the proper custody, and did not appear free from suspicion; (2) that,...