Manchaca v. Field

• Court: Texas Supreme Court
• Writing for the Court: BASSETT
• Citation: Manchaca v. Field, 62 Tex. 135 (Tex. 1884)
• Decision Date: 20 June 1884
• Docket Number: Case No. 5182.
• Parties: JOSE A. MANCHACA ET AL. v. C. P. FIELD ET AL.

62 Tex. 135

JOSE A. MANCHACA ET AL.

v.C. P. FIELD ET AL.

Case No. 5182.

Supreme Court of Texas.

Jun. 20, 1884.

APPEAL from McLennan. Tried below before the Hon. B. W. Rimes.

The case is sufficiently stated in the opinion.

Wm. H. Hamman and Francis M. Adams, for appellants, on the proposition that the concession was community property and the subject of sale, cited: L. C. and Tex., vol. 1, pp. 60, 61, § 1; 1 Cp., 5, also p. 115, § 2; Yates v. Houston, 3 Tex., 452;Jones v. Jones, 15 Tex., 147;Stramler v. Coe, 15 Tex., 215;Allen v. Harper, 19 Tex., 502;Wilkinson v. Wilkinson, 20 Tex., 244;Porter v. Chronister, 58 Tex., 54, 55; Land L. Cal., O. and Tex., vol. 1, pp. 60-63; McMullen v. Hodge, 5 Tex., 72;Ryan v. Jackson, 11 Tex., 399, 402;Portis v. Hill, 14 Tex., 70, 71;Martin v. Parker, 26 Tex., 260;Johnson v. Harrison, 48 Tex., 257;Hodge v. Donald, 55 Tex., 349;Veramendi v. Hutchins, 56 Tex., 414;Hanrick v. Barton, 16 Wall., 170.

On the proposition that one having a legal right and in constructive possession is not required within any time to take active steps against opposing claims, they cited: Johnson v. Harrison, 48 Tex., 268;McKin v. Williams, 48 Tex., 89-92;Williams v. Conger, 49 Tex., 583, 602.

That the power of attorney did not convey the property, they cited: Ryan v. Jackson, 11 Tex., 391;Martin v. Parker, 26 Tex., 260;Rogers v. Kennard, 54 Tex., 35;Watrous v. McKie, 54 Tex., 71; 2 Story's Equity, § 1531; 1 Addison on Con., §§ 220, 221; Judson v. Sierra, 22 Tex., 371.

Hefley & Wallace, A. S. Lathrop and Anderson, Flint & Anderson, for appellees, on their proposition that the wife of Jose David Sanches never had a community interest in the land, cited: Colonization Laws, 1825, arts. 24-28; Laws of Coahuila and Texas, 19, 20; Webb v. Webb, 15 Tex., 274;Caudle et als. v. Welden, 32 Tex., 355.

That the power of attorney conveyed to Penida, they cited: Martin v. Parker, 26 Tex., 253;Fulton v. Duncan, 18 Tex., 34;Ryan v. Jackson, 11 Tex., 391;Clay v. Holbert, 14 Tex., 196.

On the instruction to the effect that the jury might presume a conveyance from Thorn to Punchard, they cited; Sanger v. Moody, 60 Tex., 96.

BASSETT, SPECIAL JUDGE.

This suit was brought on the 22d of December, 1881, by the appellants Manchaca and others as plaintiffs, to recover of the appellees Field and others an undivided half of four leagues of land, part of a ten-league survey granted by the government of Coahuila and Texas to Jose David Sanches. The cause was tried by a jury and resulted in a verdict and judgment for the defendants, from which the plaintiffs appeal.

The plaintiffs are the descendants and heirs of Maria Dorotéa Sanches, deceased, who was the wife of the grantee, Jose David Sanches. On the 16th of March, 1831, Sanches applied to the governor of Coahuila and Texas for a concession of eleven leagues of land under the twenty-fourth article of the colonization law of March 24, 1825. The concession was issued March 18, 1831. The final title to ten leagues, of which the four leagues in controversy are a part, was extended in the name of Jose David Sanches on the 3d of October, 1833. Mrs. Sanches died in April, 1832, between the date of the concession and that of the grant, and the plaintiffs claim through her a community interest in the premises.

The defendants contest the right of plaintiffs to recover on the ground: 1. That Mrs. Sanches had no such right under the concession as would entitle her heirs to claim an interest in the land which was selected and granted under it after her death.

2. That whatever interest she may have had in the concession was divested by the instrument called a power of attorney, executed during her life-time by her husband to one Jose Penida. And

3. That if Mrs. Sanches and her heirs had any interest in the land it was divested by a sale made in 1839, for the payment of community debts, by Sanches to Wm. Punchard, under whom the defendants deraign title.

It is obvious that if either of the foregoing propositions be sustained the judgment for the defendants must be affirmed. Without undertaking to follow in detail the numerous propositions under which counsel have presented the case, it will be sufficient for us to indicate our views on the questions stated.

I. Did Mrs. Sanches have such a community interest in the concession granted during the marriage of herself and husband as would entitle her heirs to claim the land selected and granted to the husband after her death?

The facts pertinent to this inquiry are as follows: On the 16th of March, 1831, Jose David Sanches, being a married man, the husband of Maria Dorotéa Sanches, made application to the governor of Coahuila and Texas for the purchase of eleven leagues of government land under the twenty-fourth article of the colonization law of March 24, 1825. This law (Laws and Decrees of Coahuila & Texas, p. 19; P. D., 586) authorized the sale to Mexicans, and to them only, of such lands as they might wish to purchase, provided that not more than eleven leagues should be united in the same hands and subject to forfeiture should the purchaser fail to cultivate the land within six years. The lands selected were to be classified, when surveyed, whether as pasture lands, tillage lands not irrigable, or irrigable tillage lands, the price varying, according to classification, from $100 to $280 per league.

The right of the purchaser under this article to sell his concession or to alienate the land previous to the expiration of the six years, the subsequent purchaser assuming the performance of the conditions as to payment and cultivation, seems to have been contemplated by article 27 (Laws and Decrees C. & T., p. 20; P. D., 589), and has been recognized by this court in Fulton v. Duncan, 18 Tex., 37.

The law of 1825 contains no express direction as to the time of payment by purchasers, and this court has held, in Hancock v. McKinney, 7 Tex., 440, that it was discretionary with the executive whether the sale should be for cash or on time. In practice the sales were generally made on credit, and the sale in this instance appears to have been so made.

It is urged by the defendants that although the concession had issued in the life-time of Mrs. Sanches, no step had been taken to appropriate any land under it; that before the grant could be made effectual by the issuance of the final title, it was necessary to obtain the consent of the empresario to locate the concession within his colony; that the particular land must have been selected, and surveyed and classified by an authorized surveyor, and the survey and classification approved by the commissioner, and that the fees of the empresario and other colonial officials, and the amount due the government for the land according to its classification, must have been paid or secured; and that the mere concession, which was nothing more than a license to purchase so many leagues of the public domain, to be subsequently selected, and at a price and on terms to be subsequently determined, ought not to be treated as property in being at the death of Mrs. Sanches so as to entitle her heirs to claim a community interest in the land afterwards granted under it.

There is much force in the argument, and it finds an apparent sanction in Webb v. Webb, 15 Tex., 274;Walters v. Jewett, 28 Tex., 192, and perhaps other decisions of this court; but the later decisions and the weight of authority seem to favor the proposition of appellants, that the concession having a money value, and being the subject of sale, was property, in which Mrs. Sanches had a community interest which descended to her heirs at her death, and which attached to the grant subsequently extended in the name of her husband. Porter v. Chronister, 58 Tex., 54;Wilkinson v. Wilkinson, 20 Tex., 244;Yates v. Houston, 3 Tex., 452.

II. Assuming then that Mrs. Sanches had a community interest which would attach to the land when subsequently granted, and of which her heirs could avail themselves, it becomes necessary to consider the effect upon her rights and those of her heirs of the instrument called a power of attorney executed by her husband during their coverture.

On the 22d of November, 1831, Sanches, whose wife was then living, executed to one Jose Penida an instrument which empowered Penida, as his attorney, to take possession of ten of the eleven leagues to which he was entitled under his concession, and to hold and alienate the same as his own property, Sanches undertaking to abide by and ratify the acts of Penida done under the authority so conferred.

On the 9th of July, 1832, after the death of Mrs. Sanches, Penida indorsed this instrument to one Frost Thorn, to whom he grants and conveys all the powers conferred on him by the instrument, designating it as a power of attorney. On the same day, Penida executed to Thorn a bond reciting the payment of $50,000, and binding himself under a penalty in a like amount to convey to him said ten leagues so soon as he, Penida, should have complied with his obligations to the government and obtained possession of the land.

The final title was extended on the 3d of October, 1833. It is issued in the name of Jose David Sanches, and recites that the grant is made on the application of his attorney, Frost Thorn, who is put in possession of the land.

Under repeated decisions of this court construing similar instruments, it must be held that the instrument executed by Sanches to Penida, though in form a power of attorney, was in effect a sale of the concession and of the right to the land which might be acquired under it, and that the superior title was thereby diverted out of Sanches and his wife so as to leave no interest to be inherited by her heirs at her death. Martin v. Parker, 26 Tex., 253;Ryan v. Jackson, 11 Tex., 391;Fulton v. Duncan, 18 Tex., 34;Clay v. Holbert, 14 Tex., 196. By the indorsement of the instrument by Penida to Frost Thorn and the contract to convey to him, the superior title to...