Hatch v. Dunn

• Decision Date: 01 January 1854
• Citation: 11 Tex. 708
• Parties: HATCH AND OTHERS v. DUNN.
• Court: Texas Supreme Court

11 Tex. 708

HATCH AND OTHERS

v.DUNN.

Supreme Court of Texas.

1854.

That such a contract existed (Power & Hewitson's), and that it authorized the contractors to colonize within the coast leagues, are facts which have been too often judicially ascertained, and are too notorious to require at this day to be established by formal proofs. They are facts which have become a part of the history of the country, and are matter of judicial cognizance.

The consent of the Federal Executive to a grant to a colonist of a colony within the littoral leagues, need not appear upon the face of the title.

A colonial grant affords prima facie evidence that the grant lay within the limits of the colony.

It is no objection to a grant, purporting to be to a colonist, that the grant was issued after the expiration of the colonial contract, and that there was no evidence that the grantee had been admitted as a colonist previous to the expiration of the contract.

The instructions to Commissioners were repealed by the 29th Article of the law of 1834, only in so far as they were opposed to its provisions.

It is not believed ever to have been considered necessary, to entitle the applicant to lands, as the head of a family, under the colonization laws, that he should have a family consisting of a wife and children. On the contrary, having domestics, or servants, was considered as equally entitling the applicant to the grant. It cannot be supposed that the applicant, in this case, was less entitled to favor, under the laws in force at the time, in consequence of having Mexicans instead of Africans in his service.

Whether a man to whom a league of land was granted as the head of a family, was in fact the head of a family, was adjudicated by the grant, and cannot be inquired into, unless it be made to appear that the grantee was guilty of moral fraud, and that the officers were deceived thereby.

Appeal from Victoria. Action of trespass to try title, by the appellee against the appellants. The plaintiff claimed the league of land in controversy, by virtue of a grant to him as a colonist and head of a family, in Power & Hewitson's colony, on the 8th of October, 1834. The defendant pleaded “not guilty;” that the grant to the plaintiff was made in fraud and violation of law, the said plaintiff not being, at the time of said pretended grant, the head of a family; and that plaintiff was not a settler or colonist under the contract of Power & Hewitson, during the continuance of said contract, wherefore the said pretended grant was void. The plaintiff introduced a translated transcript from the General Land Office, of the contract of Power & Hewitson, certified by the Spanish translator, with the certificate of the Commissioner, that the person purporting to be translator, was translator, duly bonded and sworn, of that office. There was a general objection by the defendants, which was overruled, and they excepted. It appeared from said contracts, that they expired on the 11th June, 1834. Plaintiff then proved the execution of the testimonio, and the correctness of an accompanying translation, and offered the same in evidence. The defendants objected on the ground that the authority of the Commissioner, Vidauri, was not proved. The objection was overruled, and the defendants excepted. The petition read as follows:

“Mr. Commissioner. The citizen John Dunn, a native of Ireland, and a Mexican by law, and resident of this town, before you in the best form proceeds, saying that it is now ten years since I arrived in this territory, with the disposition to remain in it, and by and with the consent of the Empresarios, I have selected a sitio of land on the margin of the San Antonio River, adjoining the sitio of Edward Perry, on his east boundary. I ask of you that you will please grant to me that which I am entitled to, in doing me the justice I entreat, knowing that I am entitled to the same. Refugio, September 20th, 1834.” Passed to the Empresarios, “that they may inform me of the civil and moral conduct of the petitioner, and expressing their consent with respect to his admission,” etc.

Reply by Empresarios: “We are instructed in that which we subscribe to, that the petitioner, a native of Ireland, of good habits and of the Catholic religion, and of good conduct, for which we admit him in this new colony, considering him entitled to the land he prays for,” etc.

Title extended October 8th, 1834. The grantee was nowhere denominated the head of a family.

The plaintiff then proved that he resided at Refugio and Goliad (without being very specific as to dates, when at each), from 1829 until the present time; that he had cattle, and sold merchandise, in 1834, and kept house, employing a good many Mexicans; that Vidauri acted as Commissioner for that colony, and was the only person who did so, and that he did not act so until 1834; that the Ayuntamiento of Refugio was organized as early as July, 1834. On cross-examination, the witnesses said Dunn had no wife nor child in the country until 1837. The land was improved when the defendants took possession, but no one was living there at that time.

The defendants proved the location of the land by them, by virtue of genuine land certificates.

The defendants asked the Court to charge the jury:

1st. Parol proof that Jose Jesus Vidauri, acting as Commissioner in extending titles to the persons claiming to be colonists of Power & Hewitson, after the 12th of June, 1834, is not sufficient evidence of his authority to do so.

2d. If the jury believe from the evidence that the plaintiff had no wife nor child, before the year 1837, he was not entitled to a league of land as a colonist of the colony of Power & Hewitson; and his testimonio for a league is null and void.

3d. If the jury believe from the evidence that the plaintiff had no wife nor child, and had no other persons employed in his business, to attend to stock, or to cook for him, or to do other business, except Mexican citizens employed for such services, he should not be regarded as the head of a family, nor entitled to the league of land as such colonist.

4th. If the jury believe from the evidence that the plaintiff had not been introduced by the Empresarios as a colonist, nor admitted by them as such until after the 12th of June, 1834, he was not entitled to be admitted afterwards, nor to receive a title as such; and although by application to the Ayuntamiento, independent colonists might be admitted, yet that privilege would not authorize such an extension of title as that of plaintiff.

The Court refused to give the above charges. Verdict and judgment for the plaintiff.

Allen & Hale, for appellants. There are two principal questions in this cause.

First. Is the fact that a single man, without relatives or children living with him, but employing Mexican servants in out-door work, applies for and receives a grant of a league of land under the Colonization Laws, such evidence of fraud on the part of the grantee, as to invalidate the grant?

Second. Was it within the power and authority of the Commissioner of a colony to receive as a colonist, at any time, and especially after the term of the empresa had expired, a naturalized Mexican citizen, who had emigrated to the country before the term of the empresa commenced?

I. Under the 15th and 16th Sections of the Colonization Law of 1825, a single man, who was not part of a family, was entitled to receive one-fourth of a league of land only. But it is contended that Dunn was not a single man in the meaning of the law, but the head of a family; and it becomes necessary, therefore, to ascertain what was comprehended under the term “family” or “““ familia.”

There are three modes by which we determine the signification of words: 1st, dictionaries and grammars, and commentators; 2d, the common, public, and local usage; 3d, the context and apparent intention of the writer. If we resort to the first, we shall notice that the word “ familia” in the Spanish, is derived from the same word in the Latin language, and that from “““ famulus” meaning a house-servant or domestic slave. As all the inmates of a household in former times were, under the Roman Law, completely subject to the authority of the master, and whether wife, children or servants, virtually his slaves, the term familia was gradually applied to all. (Smith's Dic. of Greek and Rom. Antiq., Art. FAMILIA; Leverett, Lex., Verb. “FAMILIA;” Dig. L. 16, 195; Muhlenbruch, Doct. Pand. Sec. 204.

This meaning was transplanted with the word and was retained, with a slight modification in the Spanish language. Only, as slavery no longer formed so important a part of the social system, the term now embraced only the wife and children, domestic servants and other dependents living in the house and under the control of the master; and to constitute a family in the legal sense, more than two of such dependents were necessary. (Escriche, Dic. de Leg. Verb. FAMILIA; Pand. VII. 33, 6; see Notes of Greg. Lopez; Pandectas Hisp. Mex., Art. 5298.)

And it is to be observed that the qualification of living in the house, or being a part of the household, was absolutely indispensable. Out-door servants, vaqueros, pastores, etc., did not belong to or constitute a family. (Loc. cit., and Dec. Cortes, 24th June, 1821, p. 203.)

It appears, then, that in this sense of the word, Dunn had no family; for after leaving Goliad, his only servants or dependents were men employed to drive his horses and cattle, kept at Portillos, at a distance, evidently, from his own place of residence on the San Antonio river.

But if we look alone to dictionaries, or fixed and arbitrary definitions for the meaning of words, we are often misled. Different significations are attached to almost every term, and the precise idea intended to be expressed can only be understood by referring to usage and to the context of the passage. Of these, the last is the most satisfactory, and we will, therefore,...