Menifee v. Hamilton

• Decision Date: 01 January 1870
• Citation: 32 Tex. 495
• Parties: THOMAS MENIFEE AND ANOTHER v. M. C. HAMILTON.
• Court: Texas Supreme Court

32 Tex. 495

THOMAS MENIFEE AND ANOTHER

v.M. C. HAMILTON.

Supreme Court of Texas.

1870.

1. The defendant in an action of trespass to try title having at the first trial relied upon one title, he should not have been permitted, at a second trial granted him on appeal to this court, to have set up a new and different title. The rights of the parties were fixed when the demise was laid.

2. Guardians and tutors of minors, according to the civil law, had power, under the direction of the proper court, to convey the estates of their wards.

3. There must be some presumptions in favor of judicial acts. Hence in this case it is to be presumed that a judge of the first instance, co-operating in 1835 with a guardian in selling land of a minor, was acting with authority; and that the person recognized in his judicial proceedings as the guardian of the minor was the guardian.

4. This court will not reverse judgments of the district courts for minor errors, when no substantial injustice has been done.

5. The case of Hamilton v. Menifee, 11 Tex. 718, cited and referred to as decisive of the validity and locality of the grant in question.

APPEAL from Goliad. Tried below before the Hon. James Webb.

This action was instituted as long ago as November 11, 1851, by the appellee, Hamilton. It was a suit of trespass to try title to a league of land in Goliad county, originally granted to Tomas Buentillo. The particulars relating to this original grant, and the questions arising upon it, will be found reported in 11 Tex. 718, in the case of Hamilton v. Menifee, which was an appeal from a first trial of this suit. The present record comes up from the second trial, which was had at the November term (1854) of the district court of Goliad county, soon after the first judgment was reversed and remanded by this court.

When the suit was remanded to the court below, Barton Peck was allowed to make himself a co-defendant with Menifee, avowing himself to be landlord of the latter. Peck, besides the plea of not guilty, set up the limitation of three years. As title or color of title in support of this defense, he alleged in his plea the following chain of transfer:

“1. The league of land described in plaintiff's petition was granted to one Tomas Buentillo by the government of Coahuila and Texas, by grant dated the 4th day of August, 1833.

2. Francesca Buentillo, who was a daughter of said Tomas Buentillo, by the name of Francesca Uante, sold and conveyed two-thirds of said league of land, being the undivided interest claimed by her as the heir and representative of said Tomas Buentillo (called Tomas Uante, also Tomas Uantez, as well as Tomas Buentillo), and of her mother, both of whom were then deceased, to William R. Hensley, as appears by her deed dated the 11th day of June, 1841.

3. William R. Hensley sold and conveyed the said two-thirds of said league to this defendant and his co-defendant, as appears by his deed (the name of his wife being also inserted), bearing date the 27th day of September, 1841.

4. Said Francesca Buentillo, by the name of Francesca Hernandez, wife of Jesus Hernandez, and by the signature for her of the name of Francesco Buentillo, in conjunction with her said husband, made a deed of confirmation of her said former sale to said William R. Hensley, and through him to said Menifee and Peck, as aforesaid, as appears by the deed dated the 18th day of November, 1853, of said Hernandez and wife.”

The plea concluded with a fifth head, setting forth the locations made upon the land by the defendants in April, 1848, of certain land certificates. And, by further amendment, a tax title was also pleaded as title or color of title in the defendants.

The new line of defense thus assumed is the attempted new title which calls forth the animadversions of this court, to be found in the opinion.

The plaintiff, Hamilton, claimed to have acquired the Buentillo title through Encarnacion Vasquez, to whom the widow of Buentillo, in conjunction with a judge of the first instance, conveyed the entire league on the 17th of June, 1835, professing in her deed to be acting for herself and in the name of her heirs, successors, and all connected with her. In connection with this deed, the plaintiff introduced the receipt of the judge of the first instance, Jose de los Santos, to Encarnacion Vasquez, purporting that the judge had received from Vasquez twenty-five dollars for account of the inheritance and patrimony of the female child Francesca Buentillo, in a sitis of land which the widow of the deceased Tomas Buentillo had sold to said Vasquez for one hundred and fifty dollars; which receipt was given that the purchaser might have proof, and which bore date June 22d, 1835, a very few days after the date of the deed. There is an admission in the record by the defendants that whatever title Vasquez may have obtained, if any, had vested in the plaintiff, Hamilton.

These facts, in connection with those appearing in the opinion and in the case of Hamilton v. Menifee, 11 Tex. 718, suffice to show how the case stood when submitted to the jury at the fall term, 1854. There were verdict and judgment for the plaintiff. The defendants moved for a new trial, which was refused, and they appealed.

S. A. White, for the appellants. The first error assigned, although manifest, merits the chief consideration of this court, for it was the foundation of all the others.

The facts show that the plaintiff claims under the widow of the grantee, and that the defendants claim under the heirs at law.

Plaintiff, to support his title, introduced the deed of the Widow Rangel, which purports to convey the whole of a league of land, which was granted to her deceased husband during her matrimonial co-partnership with him, who left at his death (which was shortly after his grant) three children, two of whom were the children of the widow, and one by a former wife.

The question which determines this suit is, did the widow, in the deed above alluded to, sell or attempt to sell, the interest of Buentillo's heirs, and if she did, had she the power to sell? And another question connected with this one is, had she (admitting the grant was made during their marriage) any interest in the land as ganancia, or which is the same, any interest of her own to sell?

The interest of the plaintiff depends on the answer to these several questions. It is contended, in the first place, that the deed of the widow does not pretend to convey any interest of the heirs of Buentillo; that the deed is for herself, and her heirs and successors. Even an attempt to convey the interest of the heirs of Buentillo would have required that instrument to have named the interest which it proposed to convey, and to have conveyed it legally would have required the formalities of the civil law. See 6 Mart. Cond. 530; 4 Mart. Cond. p. 627. Also, Nov. Recop. l. 13, tit. 20, lib. 10, found in 1 White, p. 117.

The plaintiff himself, I think, would not contend that the deed of Mrs. Rangel conveyed this interest, and in order to extend the deed to cover that interest, they introduced a paper, purporting to be a receipt of Juan Antonio de los Santos to Encarnacion Vasquez for twenty-five dollars, the amount due the daughter of Buentillo, by a former wife, for her patrimonial estate. It is attempted to establish the sale to Vasquez by virtue of this receipt on the foundation of a judicial sale of the probate court, as required by the civil law, to transfer a minor's immovable property. This receipt is the more important inasmuch as it seems to have been the cause of leading the court below into an error, which ran through all his ruling; but which, when calmly considered, amounts to nothing, and should not have been allowed as evidence on the trial. It was objected at the trial that the receipt was a forgery, shown by its face, but the paper, from neglect, is not before this court. I will, therefore, only speak of such objections as are shown by the record. In the first place, the receipt purports to be a receipt for twenty-five dollars for the benefit of Francesca, oldest daughter of Buentillo; it does not connect itself with this or any other contract; but is an isolated thing. The deed of Mrs. Rangel is for the consideration of one hundred and fifty dollars, counted down on the table. There is no reference to the daughter Francesca, or the twenty-five dollars; therefore, if the receipt taken alone is not sufficient to convey the interest of Francesca to Vasquez, it is still in her or her assigns, and the receipt makes no part of plaintiff's title, and as the deed by the widow does not speak of conveying the interest of Francesca, the receipt could not be corroborative of that sale--wherefore it should not have been allowed.

But if the right of Francesca and the widow was sold, still the plaintiff has not made out his case, for there were other heirs of Buentillo, whose interest the plaintiff has made no showing for. The deed of Mrs. Rangel, nor the receipt for $25, can, by the most liberal construction, be made to reach this interest. The deed purports to convey a league of land, which the widow claims as the widow of the grantee, without showing by what title she claims; but, in attempting to show her title, shows that there was an interest in her two children, as heirs of her husband. The interest is not shown to be divested, and must, therefore, be presumed to be still in these heirs or their representatives. This we claim for the defendants, or rather for their heir, Francesca, for it is shown that the widow died long since, and after her, her two sons; wherefore, by operation of law, the half-sister, Francesca, is the heir to the whole of the estate of her father, Buentillo, and the title outstanding against the plaintiff.

I think from the mere inspection of the papers, that it is clear that the plaintiff has not shown title for more than one-half the league.

I think it equally clear, from the...