Mcmullen v. Hodge

• Decision Date: 31 December 1849
• Citation: 5 Tex. 34
• Parties: MCMULLEN v. HODGE AND OTHERS.
• Court: Texas Supreme Court

5 Tex. 34

MCMULLEN

v.HODGE AND OTHERS.

Supreme Court of Texas.

December Term, 1849.

Where territory is acquired by conquest or cession, in the absence of any order, decree, or law of the new sovereign, and in the absence of any treaty stipulations, individual rights of property remain unchanged. (Note 8.)

In the case of conquest it is undoubtedly in the power of the conquerer to destroy all the rights of the conquered; but in doing so, the most flagrant outrage would be done to the moral sense of the age, and such as would never be presumed to have been perpetrated, in the absence of the most positive and explicit affirmation of its author.

So in the case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. It would be in the power of such a convention to take away or destroy individual rights; but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.

The majesty of the law was never destroyed during the Texas revolution; it was in the people, and it still remained in them under a different modification of the government.

The term revolution, when used in reference to governments, has a positive and a qualified meaning; when employed in the former, it supposes a radical change of the whole system and structure of the government; when in the latter, it conveys the idea of a modification only. The revolution of Texas was clearly of the latter description. As a seceding part of the Mexican Confederacy, she was not left without laws made by herself, nor without proper officers for administering them; the laws of Mexico were her laws, and she was under the most sacred obligation to defend and support her own laws and to protect her own citizens.

The first section of the schedule in the Constitution of the Republic continued in full force all laws in force before the separation from the Mexican Confederacy which were not inconsistent with that Constitution.

Taking the first section of the schedule of the Constitution of the Republic with the tenth section of the General Provisions, it would seem that the convention did not intend to destroy any rights or titles, except those enumerated and specially named. Those two sections virtually confirm all other titles that were consummated at the date of the revolution.

We have uniformly decided that in case of imperfect titles, to give them a standing in court, required the action of the political authority; but if consummated before the change of the government and owned by a citizen of the Republic, they were valid without any act of the political authority, and have standing, in propria vigore, in a court of law.

The organization of the Indian missions and the character of their grants of land examined at length, and the conclusion arrived at that the Indians were merely tenants at will; that their rights could neither be alienated nor transmitted by inheritance, and that after the extinguishment of the missions, the lands became a part of the appropriable public domain.

All lands sold under laws 15 and 19, title 12 book 4 of the New Recopolacion, were only in composition, and the purchasers were merely tenants at will. (Note 9.)

I think it may well be doubted whether large grants of pasture land were ever authorized in any case by the laws of Spain. LIPSCOMB, J.

Appeal from Bexar. The plaintiff in the court below, who is the appellant in this court, brought suit to recover a tract of land of eleven leagues, described by metes and bounds supposed to contain twenty leagues. He offered in evidence a copy of a record from Bexar county which, by agreement, was read in lieu of a copy of the same document which might have been obtained from the General Land Office. This document purports to be the record of certain proceedings under the Government of Mexico, whilst it composed a viceroyalty of Spain, in relation to the San Lucas lands. It goes to establish the following facts:

In February, 1764, one Domingo Castillo applied to the cabildo of San Fernando de Bexar for a concession of certain lands at a place known as the San Lucas Springs, alleging that he required the use of the said lands for the stock of himself and his wife, and that he was and had been for several years in possession of the same, and that he had erected thereon a house and an inclosure. This application purported to have been in conformity with the royal decree of 15th October, 1754. The matter was referred by the cabildo, with its report, to the audiencia of the viceroyalty of Mexico for its final decision.

During the prosecution of the claim of Castillo the Rev. Father, the president of the mission of San Jose, made opposition to the claim in behalf of the Indians of that mission, alleging that the Indians of that mission had a better right, having used it for the pasturing of their flocks before it had been occupied by Castillo; that there had therefore been no particular lands set apart for the use of the people of the mission, because that when it was founded it was well understood that it was entitled to as much land as might be needed for pasturing flocksand for culture.

This opposition was also referred to the royal audiencia for its decision. The land had in the meantime, in conformity with instructions from the viceroyalty, been surveyed, appraised, and cried for the best bid for thirty days, and knocked off for the use of the mission Indians at one hundred dollars, being the best bid; a formal report of all the proceedings was made to the royal audiencia for its final approval. It resulted in favor of the mission Indians, and on the 18th of November, 1766, a grant was made to them of eleven leagues of land, in the following words:

“In consideration of the foregoing acts, I do hereby order that the mandate of their lordships of the royal audiencia, and in conformity, that the sum of one hundred and fifty dollars be made into the royal treasury, sin media annata, on account of their being Indians of the population of San Jose to whom the sale of eleven leagues of land is proved, and the same be granted to them by way of sale for their labors, pastures, and other purposes, without the right of alienating, conceding, or selling any part thereof, without the superior license of the Supreme Government of the kingdom, under penalty of annulling this sale, without prejudice to his majesty or a third party.”

The plaintiff read in evidence, to deraign his title from the original grantees, a deed from Antonio Garcia, acting for himself, and pretending to act in behalf of Eusbrio Ausunes, Louis Romero, Jose Maria Garcia, Juan dela Cruz Celuca, and Apolonario Roderegues, alleged to be the only natural descendants of the extinguished mission of San Jose, dated 10th January, 1833, to Refugio de la Garza, describing the eleven leagues of land, as set out in the ancient field-notes of the survey made under the order of the cabildo of San Fernando de Bexar, referred to in the proceedings on the application of Castillo, and a conveyance dated the 18th of the same month from De la Garza to McMullen, the plaintiff in this suit. To prove the authority of Antonio Garcia to act for his constituents, a paper was read, dated 7th October, 1833, in which Margaretta Del Toro, Louis Romero, and Jose Maria Garcia acknowledged what Garcia had done for them in January, 1833, and on the 30th November, 1846, after the commencement of this suit, a similar act of confirmation from Del Toro. There were several witnesses sworn whose evidence conduced to prove that the vendors to De la Garza were the only surviving descendants of the Indians of the mission of San Jose, and also some to prove the manner in which the mission Indians were governed at the mission and the object of the institution, as also the manner in which the missions were broken up. The defendant offered in evidence a headright certificate granted to him under the laws of the Republic of Texas, and located on a part of the land claimed by the plaintiff.

The case was submitted to the judge without the trial by a jury; and the judgment was against the sufficiency of the title of plaintiff, from which he appealed.

V. E. Howard, for appellant.

I. It appears that the lands claimed by Castillo and the Indians were duly put up for sale at public auction, being first valued according to law. In both methods of disposition this was the rule of proceeding. The only question is whether the lands were disposed of by composition, so called, which it appears, under law 15, tit. 12, lib. 4, of the laws of the Indies, (2 White, 53,) rendered the purchaser a tenant at will. It should be observed that that law is not referred to in any part of the proceedings as furnishing the rule under which this grant was made. On the contrary the only law referred to is 19 of the same book and title, referred to by the royal attorney, as giving the Indians the preference in the disposition of the lands, whether by sale or composition. Admitting, for argument's sake, that the law referred to speaks of composition and not of sale, yet a mistake of the purport of the law by the attorney could not affect the character of the sale actually made. The law is as follows: “No one shall be admitted to make composition of lands who shall not have been in possession thereof for the term of ten years, although he should state that he is in possession at the time; for such circumstance by itself is not sufficient; and communities of Indians shall be admitted to make such compositions in preference to other private individuals, giving them all the facilities for that purpose.” (2 White, 54.) We should further observe that in the very preceding sentence to his reference to the law, the attorney states that there was no contest which required proof; that the lands were vacant, as decided...