Jones v. Montes

• Decision Date: 01 January 1855
• Citation: 15 Tex. 351
• Parties: ENOCH JONES v. JUAN MONTES.
• Court: Texas Supreme Court

15 Tex. 351

ENOCH JONES

v.JUAN MONTES.

Supreme Court of Texas.

1855.

Where testimonios were extended on paper wanting the proper stamp corresponding with the year, they were not absolutely null, but only wanted faith and credit, and might be proved by proper evidence of their genuineness; and it seems that since the introduction of the common law rules of evidence, the same prrof is required, although the testimonio be upon paper of the proper stamp.

See this case as to the distinction between that class of cases where a party who had abandoned the country afterwards sought the favor of the government to perfect an inchoate title, and cases where a forfeiture of perfect titles on account of an abandonment of the country and adhering to its enemies is claimed. In the latter cases the forfeiture must have been pronounced according to the due course of the law of the land, for which see 7th article of the declaration of rights of the republic.

Appeal from Bexar. The first page of the instrument was written on paper stamped for the year 1827 only; the balance was stamped for the years 1832 and 1833. The date of the instrument was 1833.

I. A. & G. W. Paschal, for appellant.

Howard and Hughes, for appellee.

LIPSCOMB, J.

We have regarded every point presented to our consideration in this case as settled by previous decisions of this court, excepting the single one that the title extended to Montes does not appear to be upon paper of the proper stamp. We believe that the principle decided in the case of the Heirs of Nestor Clay v. Holbert, the last term of this court at Galveston, must be decisive of this point. In that case, after an examination of all the Spanish authorities accessible, we ruled that the grant having been executed with the assistance of but one witness did not make it a nullity, but that it only affected the faith and credit as evidence, to which it was entitled; that if there had been two assisting witnesses, it would have made full proof and been entitled to full faith; but if only one, it was not proof of itself, but required proof aliunde of its having been executed, before it could be read in evidence. We believe the want of paper of the proper stamp corresponding with the year presents precisely the same category; that it is not an absolute nullity, but that it requires proof additional, before it can be read in evidence. From the authorities, we believe that although, as it stands, wanting the seal corresponding with the year, it cannot have such full faith as would make it proof per se of the grant, but when the grant is proved by other testimony to have been executed, it is valid and may be read in evidence. The authorities examined and cited in the case of Clay v. Holbert are applicable to this case, and will there be found. We believe that the misconception and difference of opinion as to such defects, and more particularly in this case, grow out of a mistranslation of the Spanish words in the...