Fulton v. Bayne

• Decision Date: 01 January 1856
• Parties: MARCUS L. FULTON v. WILLIAM G. BAYNE.
• Court: Texas Supreme Court

18 Tex. 50

MARCUS L. FULTON

v.WILLIAM G. BAYNE.

Supreme Court of Texas.

1856.

It would seem that an acknowledgment by a commissioner for the extension of titles, before a notary or other proper officer, after the revolution, that his signature to a certain testimonio of title extended by him was his act and deed, and made for the purposes therein mentioned, properly certified by the officer, is a sufficient authentication to admit such testimonio to record, etc.

Where there was a concession of five leagues of land, dated the 15th of February, 1831, and in the power of attorney to select, obtain title and sell the land, and in all the other documents where the concession was mentioned, it was called a concession to the person named, of the 15th of February, 1831, for eleven leagues, or the number was not mentioned at all; the question before the court being as to the validity of the extension of title to two leagues under said concession, the court held that prima facie the title to the two leagues was valid, notwithstanding the discrepancies between the number of leagues mentioned in the concession and the number recited in the subsequent papers.

Where the title from the government, under which the plaintiff claims, is rejected, it is not necessary for him, in order to obtain a revision of such ruling, to put in evidence his deraignment of title, in order to exclude the conclusion that he may not have been prejudiced by the ruling.

Where a testimonio was filed September 3d, 1849, and a sworn translation thereof March 5th, 1850, and appended to the testimonio was a certificate of its acknowledgment, by the commissioner, before a notary in 1838, but no certificate of its being recorded in the county, and the cause not coming on for trial until the spring term, 1852, the testimonio and translation were rejected on the general objection to their competency and admissibility; it was held that the ruling could not be sustained on the ground that the signature of the commissioner (special commissioner) was not proved, and that the party had not brought himself within the provision of the statute, that where a deed has been duly authenticated and recorded, and is filed three days before trial, and notice given to the adverse party, it may be introduced in evidence without further proof of its genuineness, unless, etc.

This case would seem to establish the rule, that where a bill of exceptions to the exclusion of evidence (there being no question as to such rule where the bill of exceptions is to the admission of evidence) does not specify the ground of objection, no objection will be heard in support of the ruling, which might have been answered or removed by other evidence to the judge on the question of admissibility. 7 Tex. 593;17 Tex. 70;21 Tex. 407;26 Tex. 674;29 Tex. 429.

Appeal from Brazos. Tried below before the Hon. R. E. B. Baylor.

Action of trespass to try title, commenced March 10th, 1846, by appellant against appellee. There was a statement of facts, showing that at the trial the plaintiff offered his title in evidence, that it was rejected, and that no other evidence was offered. The trial was at the spring term, 1852. Bill of exceptions by the plaintiff to the exclusion of his title, showing that he offered in evidence the original Spanish title and a translation thereof, “to the competency and admissibility of which original title and translation the defendant excepted; and the court sustained the defendant's exceptions to said title and translation, which title and translation are as follows.” Here followed the testimonio of the title to Thomas Jefferson Chambers, attorney of Alexander de la Garza, and a translation thereof, which is described in the statement of the case of Fulton v. Duncan, supra, 38, except that it was not copied beyond the extension of the title of the two leagues, on the Brazos, by the commissioner, Lewis. The special commission to Lewis was inserted between the permission of the empresario and the application of Chambers to said commissioner to extend title. In the application of Chambers to the alcalde, of December 22d, 1832, in this case, he, in reciting the concession, calls it a concession of eleven (once) sitios, whereas in the copy of same document in Fulton v. Duncan he is made to call it a concession of five sitios. In the application to the governor, Vidaurri, to appoint the special commissioner, and in the application to Commissioner Lewis to extend the title to the two leagues, part of which is in controversy in this suit, the number of sitios granted by the concession is not mentioned. The commissioner, in extending the title to the two leagues, commenced as follows:

Citizen Ira R. Lewis, commissioned by the supreme government of the free state of Coahuila and Texas, by decree of the 28th of July, 1834, to put citizen Thomas Jefferson Chambers, attorney of Alexander de la Garza, in possession of the eleven (once) sitios of land which he has bought from the same supreme government, by concession of the 15th of February, 1831, etc. The only place, therefore, in this document, where the concession was called a concession of five leagues was in the concession itself. As to the date of the concession, it perhaps should be here stated, that is always referred to as of the 15th of February, 1831. The petition of de la Garza, who it appears could not write his name, was dated at the village of Austin, December 2d, 1830, without his signature, but subscribed as follows: “Excellent Sir: I, Manuel de la Fuente, sign it at the request of the party; Leona Vicario, 15th of February, 1831.” Then followed the concession, without further date, except as follows: “A copy of the original which exists in the archives of the secretary in my charge, whence this was ordered to be taken by direction of his excellency the governor. Leona Vicario, 16th of February, 1831. Santiago del Valle, Secretary.

Attached to the testimonio was an authentication as follows:

Personally appeared before me Lualan D. Groais, chief justice and ex-officio notary public for the county of Matagorda, the above named I. R. Lewis, and acknowledged the above signature to be his act and deed for the purposes therein mentioned. June 19th, 1838. Lualan Groais [L. S.], chief justice and ex-officio Not. Pub.

Indorsed--Filed 3d Sept., 1849, Arthur Edwards, D. C. B. C.

There was copied into the transcript a notice to the defendant, of the filing of the original testimonio, and a copy of said notice; they were both marked filed Sept. 3d, 1849; but there was no evidence that either was served.

The translation was a sworn translation by John Sayles, and was filed March 5th, 1850. The mistake of 1836 instead of 1831, in the first application to Commissioner Lewis, did not occur in the testimonio or translation thereof.Hancock & West, for appellant. The court erred in rejecting the title of Fulton, which appeared perfect on its face--without assigning a shadow of a reason.

The rule laid down by this court, as to exceptions to testimony, is, that the objection to the evidence sought to be excluded must not be general in its character, but must be so specific as to point to the precise error relied on; it was the duty of appellees, as it were, to put their finger on the defect; the court ought not to sustain an exception general, vague and...