Howell v. Hanrick

• Decision Date: 07 February 1895
• Citation: 29 S.W. 762
• Parties: HOWELL v. HANRICK.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

29 S.W. 762

HOWELL v. HANRICK.¹

Supreme Court of Texas.

February 7, 1895.

Error to court of civil appeals of Third supreme judicial district.

Trespass to try title by E. G. Hanrick against J. V. Howell. A judgment for plaintiff was affirmed by the court of civil appeals (24 S. W. 823, 25 S. W. 41), and defendant brings error. Reversed.

Terrell & Walker, S. R. Fisher, A. S. Fisher, and Thomas E. Sneed, for plaintiff in error. Walton & Hill, for defendant in error.

BROWN, J.

Hanrick sued Howell in the district court of Williamson county to recover a tract of land situated in that county. The venue was changed to Travis county, where the trial was had, and judgment rendered in favor of Hanrick, which was affirmed by the court of civil appeals. Howell claimed the land under a patent issued by the state of Texas. Hanrick claimed it by virtue of an 11-league grant issued by the state of Coahuila and Texas in 1833. The record is voluminous, but, for the purpose of determining the questions presented in this court, the following statement will be sufficient: In the year 1830, Jose Maria De Aguirre, for himself and as attorney for Rafael De Aguirre and Thomas De La Vega, made a joint application to the governor for permission to purchase, each, 11 leagues of land in the territory of that state. Upon the petition the governor issued the following permit or order: "Leona Vicario, June 14th, 1830. By virtue of article 24 of the colonization law of the 24th of March, 1825, I authorize each one of the applicants to purchase the eleven sitios (leagues) they apply for from the public domain of the state, at such point as may suit them, after the commissioner appointed by the federal government shall have selected a sufficient quantity to cancel the debt due by the state to the federation. The duly-qualified mayor (alcalde) of the municipality within whose jurisdiction said land may be located will put them in possession of the aforesaid sitios (leagues), and issue the respective patent thereto, previously classifying their condition and quality so as to assess the amount they shall pay the state for them, for which payment the terms of the aforesaid law are granted to them. The petitioners will be furnished from the secretary's office with a copy of their application and of this petition, that, upon application with them to the commissioner, the ends proposed may be accomplished. A copy of the original filed in the archives of the secretary's office in my custody, from where it was ordered to be made by direction of Y. E., the governor. Leona Vicario, June 13th, 1830. Santiago Del Valle, Secretary." On the 2d day of May, 1832, the same parties, by Jose Maria De Aguirre, applied to the governor for an order that they be placed in possession of the lands, reciting the former order of date June 14, 1830, and that no objection had been made thereto, and continues in this language: "It appears that the time has now arrived when they can proceed without hindrance to receive the lands they have contracted to purchase and, as it may happen that they might be located within the limits of some of the several colonization contracts for the distribution of whose lands a commissioner of surveys is appointed, he prays Y. E. to direct that not only the mayors (alcaldes) to whom they shall apply to put them in possession of the sitios (leagues) they may select, but also the commissioners of surveys within their respective jurisdictions, shall do the same, so as to avoid any inconvenience that might retard the possession they apply for. He prays Y. E. to comply with his request wherein he will receive justice. Leona Vicario, May 2d, 1832. Jose Maria De Aguirre." Upon the above application the governer issued the following order: "Leona Vicario, May 2nd, 1832. In consideration of the foregoing application, and in conformity with the order issued from this department and transmitted to the head of the department of Bexar on the 23d day of June, 1830, I hereby appoint the commissioner for the distribution of land within the respective colony wherein the sitios (leagues) granted to the applicant and his associates may be located; and, in case they are not included in any colony contract, then the mayor (alcalde) of the respective municipality or the nearest thereto, pursuant to the instructions and orders having reference to the subject, will proceed to give them the possession aforesaid. The applicant will be furnished through the office of the secretary with a copy of his petition and of this order, for the purposes that they may be required attaching the original to the document authorizing the purchase. Letona. Santiago Del Valle, Secretary." October 4, 1833, Samuel M. Williams presented to Luke Lesassier, the alcalde of San Felipe De Austin, a written request that he, as attorney of Rafael De Aguirre, might be permitted to select the lands for said Rafael De Aguirre on the west bank of the Brazos river, which was within the limits of Austin and Williams colony. The application was referred by the alcalde Luke Lesassier to Austin and Williams, for their approval, with directions that, in case they consented, it was to be delivered to Francis W. Johnson, surveyor general, to survey the land. On the 5th of same month, Samuel M. Williams, for himself and his partner, gave consent, and Francis W. Johnson surveyed the land, but the date of the survey is not given. Luke Lesassier, alcalde of San Felipe De Austin, with the assisting witnesses Robert Peebles and C. C. Givens, executed the protocol of the final title to the land, which was dated October 4, 1833. This instrument recited that Luke Lesassier, exercising the powers conferred upon him by order of 2d day of May, 1832, and in consideration of the sale made by the governor on the 14th day of June, 1830, put Samuel M. Williams, attorney for Rafael De Aguirre, in possession of the 11 leagues on the west bank of the Brazos river, conferring title upon him thereby; referring to the field notes made by Francis M. Johnson for description. The field notes returned by Johnson begin thus: "The land that I have surveyed by virtue of your foregoing order to the attorney for the citizen Rafael De Aguirre is located on the west bank of the Brazos river, and contains the lines, boundaries, limits, and corners following" (giving the metes and bounds). The title appears to be complete and formal, and was deposited in the land office, as required by law. October 4th (the same date as the first application), Samuel M. Williams, as attorney for Rafael De Aguirre, presented to the same alcalde of San Felipe De Austin a second application, based upon the same permit, to purchase 11 leagues of land, dated June 14, 1830, and the order of the governor of May 2, 1832, for permission to select and have surveyed 11 leagues of land for Rafael De Aguirre, 10 to be located and surveyed on the San Andres river and Cow bayou, which embraces the land sued for, and 1 at another place. This land was also within the limits of Austin and Williams colony, and was by the alcalde referred on the ____ day of October, 1833, to Austin and Williams for their approval, and, upon approval, to be delivered to Francis W. Johnson, surveyor general, and by him to be surveyed. Consent was given by Samuel M. Williams on the 5th day of October, 1833, and Johnson, the surveyor general, surveyed the land, and returned the field notes, which are without date. Upon this second application, a final title was made out, from which we make the following extracts: "At the city of San Felipe De Austin, on the twenty-second day of the month of October, in the year one thousand eight hundred and thirty-three, I, citizen Luke Lesassier, the duly-constituted mayor (alcalde) of this city and its municipality, in the exercise of the powers conferred upon me by the order dated at Leona Vicario on the fourteenth day of June, 1830, and 2d of May of the year last past, and in consideration of the sale authorized by the said executive in favor of the citizen Rafael De Aguirre, resident of the said Leona Vicario, for eleven sitios (leagues) of land, as appears by his executive order, dated at the said Leona Vicario on the said fourteenth of June, 1830," etc., "I confer upon and put the aforesaid attorney of Perfecto Valdez in the full, actual, and corporeal possession of eleven sitios (leagues) of land, the same that he applied for and were sold to him by the government on the San Javiel creek and Cow bayou." This title was signed by Luke Lesassier, with Robert Peebles and C. C. Givens assisting witnesses, and at the bottom, above the names of the alcalde and witnesses, is this note: "Interlined- y 2 de Mayo po po annovalid- Altered Catorce- Rafael Aguirre, arroya San Javiel- valid also Juno- Juno valid." Wherever the words "Rafael De Aguirre," "fourteenth," "June," "San Javiel creek," appear in the application, the reference by the alcalde to Austin and Williams, and the final title, the evidence shows that other words had been scratched out, and the word there appearing written over the erased word. The evidence tends to prove that where the words "Rafael De Aguirre" were thus inserted, the words "Perfecto Valdez" had been erased, and that, where the word "fourteenth" was thus inserted, the word "thirteenth" had been erased; that "July" (Julio) was erased where "June" is inserted; and that in the grant the words "Brazos river" were erased, and "San Javiel creek" inserted, and "Cow bayou" interlined; also that "2d of May of the year last past" were interlined. On the 13th day of July, 1830, the governor of Coahuila and Texas granted permission to Perfecto Valdez to purchase 11 leagues of land, to be selected by him out of the public domain, and directing the alcalde of the municipality where selected, or of the nearest thereto, to put him in possession and give evidence of title. No application appears to have been made to the alcalde on this permit,...