Howell v. Hanrick

• Decision Date: 03 January 1894
• Parties: HOWELL v. HANRICK.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

24 S.W. 823

HOWELL v. HANRICK.¹

Court of Civil Appeals of Texas.

January 3, 1894.

Appeal from district court, Travis county; D. W. Doom, Special Judge.

Trespass to try title by E. G. Hanrick against J. V. Howell. From a judgment for plaintiff, defendant appeals. Affirmed.

A. S. Fisher, S. R. Fisher, Terrell & Walker, and Thos. E. Sneed, for appellant. Walton, Hill & Walton, for appellee.

BROWNE, Special Judge.

This is an action of trespass to try title, in the usual form, brought by appellee, E. G. Hanrick, in the district court of Williamson county, Tex., on the 18th day of November, 1877, against appellant, J. V. Howell. Appellee, in his petition, claimed title to 10 leagues of land situated on the San Gabriel, in Williamson county, Tex., describing the same by metes and bounds, and alleged that appellant had caused 98½ acres thereof to be surveyed on the 4th of May, 1876, as a pre-emption survey, and had taken possession of the same, and was holding the same adversely to him. Appellant admitted this allegation to be true; and the land in controversy is therefore the said 98½ acres. One of the instruments on which appellee relied to show title in himself to the said 10 leagues of land was an 11-league grant to Raphael De Aguirre, embracing said 10 leagues of land on the San Gabriel, and another league on Cow bayou in a different locality, the grant purporting to be made by virtue of a concession in sale issued by the government of Coahuila and Texas on the 14th June, 1830, to said Aguirre, to Jose Maria Aguirre, and to Thomas De La Vega, by which concession each one was allowed to purchase 11 leagues of land in Texas; the final title in the grant purporting to be extended on the 22d day of October, 1833, by Luke Lesassier, alcalde at San Felippe de Austin, with Robert Peebles and C. C. Givens as assisting witnesses. Another instrument on which appellee relied to show title was a testimonio of a power of attorney, of date 28th April, 1832, purporting to be from Raphael De Aguirre, Jose Maria De Aguirre, and Thomas De La Vega to Samuel M. Williams, and executed at Leona Vicario before Gonzalez, a notary, with Jose M. Moral and Jose N. Ortez as assisting witnesses, authorizing said Williams to sell the said concession, or to acquire for them the land they were each entitled to purchase under it, and to sell the land. Another instrument on which he relied was a deed, dated May 1, 1838, which purported to be from Raphael De Aguirre, acting by Samuel M. Williams as his attorney in fact, to Asa P. Ufford, with two attesting witnesses, conveying to him said grant. The appellant, in his answer, pleaded a general demurrer, a general denial, not guilty, the statutes of limitation of three, five, and ten years, and that the grant to Raphael De Aguirre was a forgery; and he filed an affidavit charging that the said final title therein, said power of attorney, and said deed were each of them forgeries. By a change of venue, on application of appellee the cause was removed to Travis county for trial. On the trial of the cause, appellant made no attempt to establish any of his pleas, except the one in which he alleged the forgery of the grant, and his proof was directed mainly to show forgery of the final title in the grant; in fact, the only controverted issue between the parties was as to the forgery of said final title. A jury was impaneled to try the cause. The only issue submitted to them by the court was as to the forgery of said final title; and they were instructed that, if they found it to be a forgery, then they should return a verdict for appellant, but, if it was not a forgery, then they should find for the appellee. The jury returned a verdict for appellee for the land sued for, and for rent in the sum of $430, but appellee remitted the rent, and judgment was rendered for the land.

A great mass of testimony was introduced on the trial, covering nearly 300 pages of printed transcript. A view of the facts proved will be necessary in order to decide the questions raised by such of the errors assigned by appellant as are presented in a way properly calling for review by this court. Condensing the testimony as far as the same may be done and preserve its substance, we give it as follows, and upon it will be predicated our conclusions of fact:

Appellee introduced in evidence, to show title in himself to the land sued for, the following title papers: (1) A certified translated copy from the general land office, made in 1855, of the protocol of the said grant to Raphael De Aguirre, having first proved, as at common law, the execution of the final title, by showing that the signatures of Lesassier and the assisting witnesses were genuine. The grant comprised the following documents: An application by Samuel M. Williams, as attorney of Raphael De Aguirre, made to Luke Lesassier on the 4th day of October, 1833, asking to have ten leagues of land situated on San Gabriel, and one league situated on Cow bayou, surveyed for, and a title thereto issued to, his principal, citing, in the application, the concession in sale, of date June 14, 1830, above mentioned, as authority for Lesassier to act in the matter; a reference by said alcalde of said application on the 4th day of October, 1833, to the empresarios, Austin & Williams, for their action thereon, in whose colonial boundaries the land applied for was situated, directing that, with the approval of said empresarios, the surveyor, Francis W. Johnson, proceed at once to survey the land desired; the consent of the empresarios for the sale of the land, dated October 4, 1833, signed by Samuel M. Williams, for himself, and by Austin, acting through said Williams, as his attorney in fact; the report (without date) of the surveyor, Francis W. Johnson, giving the description of the 11 leagues of land, as in the said application, and describing the 10 leagues of land on San Gabriel by field notes, as appellee sets them out in his petition; an application of date June 13, 1830, by Raphael De Aguirre, Jose Maria De Aguirre, and Thomas De La Vega, to the governor of Coahuila and Texas, for the purchase of 11 leagues of land each, to be selected by them; a concession in sale, granted to them as prayed for, dated June 14, 1830; and, lastly, the final title, which has been already fully described. (2) The power of attorney from the two Aguirres and Vega to Samuel M. Williams, hereinbefore mentioned, — the instrument being not only a power of attorney, but in effect a deed vesting title in Samuel M. Williams to the said concession, and the land purchased by virtue of it, — having first proved its execution as at common law. (3) The deed from Raphael De Aguirre to Asa P. Ufford, of date May 1, 1838, also hereinbefore described, after having proved its execution as at common law. (4) a deed from Asa P. Ufford to Joseph Ufford, dated January 28, 1850, conveying to him said grant. (5) A deed from Joseph Ufford to Edward Hanrick, dated January 9, 1855, conveying to him said grant. It was admitted that the appellee is the sole heir of Edward Hanrick, and, as such, acquired by inheritance whatever title Edward Hanrick had the grant. It was further admitted that the rental value of the 98½ acres per acre per year was 30 cents.

For the purpose of showing that the said final title in the grant to Raphael De Aguirre was a forgery, appellant read in evidence a certified translated copy from the general land office of an incomplete grant to one Perfecto Valdez of 11 leagues of land, the papers read being as follows: An application by Perfecto Valdez to the governor of Coahuila and Texas for a concession in sale to him of 11 leagues of land, to be selected by him, dated July 10, 1830; a concession granted to Perfecto Valdez, as prayed, dated July 13, 1830; a regular chain of transfers from Perfecto Valdez to Jane McManus, under which she acquired the title to said concession on the 8th day of February, 1833; a regular chain of transfers vesting in R. O. W. McManus, the brother of said Jane, on the 14th day of February, 1833, the right to select the land, and apply for title to the same, in the name of Perfecto Valdez; the written consent of the empresarios, Austin & Williams, given on the 8th day of February, 1833, that the said R. O. W. McManus might select the land within their colonial boundaries to satisfy said concession. It was proved that these were the only papers pertaining to this grant on file in the land office, except the English field notes of a survey of 11 leagues of land, made on the east bank of the Brazos river, for Perfecto Valdez by Moore, a deputy surveyor under Francis W. Johnson; and a certified copy from the general land office of these field notes was also read in evidence by appellant. It was proved that there were no Spanish field notes of the survey in the general land office, and that English field notes were never incorporated in a Spanish grant. R. O. W. McManus testified: That he did not select the 11 leagues surveyed by Moore, and made no application to the alcalde or commissioner for the survey of said 11 leagues. That his sister and himself paid for the Valdez concession, and paid the government dues and the fees of the surveyor for surveying the 11 leagues. That his sister bought the concession upon the recommendation of Stephen F. Austin and Samuel M. Williams. That said Williams was agent for his sister to select and have surveyed for her the 11 leagues to which she was entitled under her purchase, and to perfect her title thereto. That said Williams, late in the fall of 1833, informed him that the land was selected and surveyed, and the title was complete. That he did not then see the title, and that if he ever did, at any time, see the title, it was under circumstances as follows: His sister had, in his absence, collected some money due him and spent it, and they quarreled, and she brought him the Valdez papers, and told him to take them, and make...