Herndon v. Casiano

• Court: Texas Supreme Court
• Writing for the Court: WHEELER
• Citation: Herndon v. Casiano, 7 Tex. 322 (Tex. 1851)
• Decision Date: 01 January 1851
• Parties: HERNDON v. CASIANO.

7 Tex. 322

HERNDON

v.CASIANO.

Supreme Court of Texas.

1851.

Testimonios of public acts done under the former Governments, are receivable in evidence in all respects as originals. (Note 50.)

Proofs are made in our courts conformably to the common-law rules of evidence. These, being the law of the forum, must, in general, govern. And these rules are sufficiently expansive to afford some mode of proof of every existing fact on which the rights of parties depend. By the common law, originals duly proved are always admissible.

Where the bill of exceptions to the admission of documentary evidence does not state the objections, the only question which can be considered as presented is, whether a document of the character and import of the one objected to is admissible at all, however proved. And where the bill of exceptions states the objections, the appellant will be confined to the same objections in the appellate court.

Archives of the offices of the former Government are admissible in evidence in cases where they are not irrelevant; and where an archive which concerned the title to land was produced from the possession of the person who possessed and claimed the land, and it was identified by a witness who testified that he had seen it on record among the archives of the department at San Antonio, in 1834 and 1835, the same witness testifying that during the Revolution of 1836 the public records were scattered about the rooms in which they were kept, that persons took possession of those in which they were interested, and that this archive was taken possession of by some one, he did not know by whom: Held, That, under the circumstances, the fact that it did not come directly from the proper custody was no objection to its admissibility.

The Commissioner of the General Land Office is authorized to give certified copies, to be read in evidence, of all records, books, and papers, the legal custody of which belongs to his office. But his certificate will not give legal authenticity to papers which are mere private property, and which do not belong to or constitute archives of his office. (Note 51.)

Quere whether a certified copy, from the General Land Office, of a testimonio of a public act is admissible. It seems that where the testimonio had been recorded in the office of the county clerk, a certified copy from the record is admissible, as in other cases.

The cases of Houston v. Perry and Williams (5 Tex. R.) and Smith v. Townsend (Dallam 572) referred to for some general principles applicable to the proof of testimonios of public acts.

Although certain rules upon the subject of the presumption of a grant, from possession and lapse of time, have been established, yet the question will still depend, in some degree, on the particular circumstances of the case.

It seems that the Spanish Government recognized verbal as well as written grants to land.

Long continued possession, tending to create the presumption of a grant, will be aided by the admission, without objection, of verbal testimony that a grant did once exist. (Note 52.)

Where it was proved that the family of Hernandez, under whom the defendant claimed, had been in the continued possession of the land in controversy, claiming title for more than half a century previous to 1813, when they were driven away by the incursions of hostile Indians; and it was further proved that the defendant had been in possession of the land, with his deed recorded, for the last ten years; and the claim was plotted on the county map as early as 1838 or 1839, and was respected by the authorities and surveyors until the plaintiff made his location in 1847: Held, That a grant to the Hernandez would be presumed, and that there was nothing in the interruption of the possession in 1813 to repel the presumption: Held, also, That the presumption was corroborated by the fact that nearly a century ago the land was the subject of litigation between the Hernandez and other individuals.

It seems that the common-law rule, that the presumption derived from possession is, that the possessor owns absolutely, is applicable to possession before the introduction of the common law.

The improper admission of testimony will not cause a reversal of the judgment where the evidence is ample without it. (But in this instance the case was submitted to the court.)

It is legitimate for the defendant in a controversy respecting lands, to pray that the locations, &c., of the plaintiff, being a cloud upon his title, be removed, &c.

Appeal from Bexar. The appellant brought suit to recover from the appellee a league of land, claimed by the former, by virtue of a headright certificate, located in October, 1847.

The defendant claimed the land under an ancient Spanish grant to one Louis Menchaca, and by legal mesne conveyances. In his answer, he averred that Menchaca and those claiming under him were in possession of the land for about ninety years, using and enjoying it for the purposes of agriculture and grazing; that the title was in the defendant; and that the locations of the plaintiff upon it constituted a cloud over his title, &c. Wherefore he prayed that the locations of the plaintiff might be canceled, &c. The plaintiff gave in evidence his certificate and location. The defendant introduced a document, marked B, to the admission of which the plaintiff objected, but on what ground did not appear. The court overruled the objection, and the document was read in evidence. The defendant also offered in evidence a certified copy, from the General Land Office, of a document, which copy was marked A; to the introduction of which the plaintiff objected, on the ground that it was a copy of a copy; which objection the court overruled, and admitted the copy in evidence.

Document B purported to be the original testimonio and dispatch from the superior tribunal of the judicature at the city of Mexico, to the local authorities at San Antonio, in 1757, of proceedings in a suit between Jose Antonio Menchaca and the heirs of Francisco Hernandez, respecting the right to the lands of which that in controversy was a part. From this document it appeared that a controversy had arisen between the parties, respecting the ownership of the land, before the authorities at San Antonio; the former claiming by virtue of grant of fifteen leagues between the Cibolo and the San Antonio rivers, at their junction, and the latter claiming four leagues included within the boundaries of the grant to the former under a grant to their father, and possession taken under it in 1737. The decision of the local authorities appears to have been favorable to the title asserted by Menchaca; and the heirs of Hernandez appealed to the superior tribunal at the city of Mexico. The document contained a history of the proceedings before the tribunal; it recited the claims and pretensions of the contending parties at great length; and concluded with the decree and mandate to the local authorities, settling the principles upon which they should proceed to determine the controversy, recognizing the validity of the grant to Menchaca, declaring that to Hernandez invalid, by reason of having been issued by a governor ad interim, who had not authority to make it; but at the same time declaring that the Hernandez, by reason of their possession in good faith, were entitled to the preference; and commanding the local authorities to restore to them the four leagues claimed, upon certain prescribed terms and conditions.

Document A was a certified copy from the General Land Office of what purported to be the original testimonio of proceedings in a compromise and adjustment of the litigation theretofore existing between Menchaca and the heirs of Hernandez respecting the four leagues of land claimed by the latter, made and passed before the alcalde, in the absence of a notary, at San Antonio, in the year 1758, by which it appeared that, for various causes set forth, they agreed to compromise the litigation respecting the land, passing mutual releases, and Menchaca released and conveyed to the Hernandez the four leagues claimed by them.

It was admitted that the plaintiff was owner of the certificate under which he claimed, and that all the title ever in the Hernandez was vested in the defendant before the plaintiff's location by valid mesne conveyances, of record in the county since September, 1837. It was further admitted that the land claimed by the plaintiff under his location was in the possession of the defendant, and claimed by him under the Menchaca and Hernandez title. The plaintiff gave in evidence the map of the district surveyor, to prove the situation of the land, and so much of the map as showed the locality of the Menchaca and Hernandez tract, which was read in evidence, was made a part of the statement of facts.

Domingo Bustillo, a witness for the defendant, testified that Menchaca and his heirs and Hernandez and his heirs had been in the actual possession and occupancy of the land for a great many years previous to 1813 and 1814, when the ranches of Hernandez were broken up by the Revolution and the hostilities of the Indians. The Hernandez had a ranch on the Cibolo, and Menchaca two ranches on the San Antonio, on the same tract of land before described. The witness saw these ranches when he was eighteen or twenty years of age, and his age is now (1848) sixty-nine years; these possessions were very ancient, as the witness learned from old persons when he was a boy. The defendant having previously filed an affidavit of the former existence and loss of the original grant from the Government of Spain to Menchaca, the witness testified that he had seen in the archives at San Antonio a grant to Menchaca for this tract of land from the Government of Spain. He had also seen the papers in the suit between Menchaca and the Hernandez for four leagues of the grant, and also the papers in the subsequent compromise which took place between them, by...