Nathaniel H. Watrous' Heirs v. McGrew

• Decision Date: 01 January 1856
• Citation: 16 Tex. 506
• Parties: NATHANIEL H. WATROUS' HEIRS AND OTHERS v. ELIZABETH MCGREW AND OTHERS.
• Court: Texas Supreme Court

16 Tex. 506

NATHANIEL H. WATROUS' HEIRS AND OTHERS

v.ELIZABETH MCGREW AND OTHERS.

Supreme Court of Texas.

1856.

Where one of several tenants in common, who are co-plaintiffs in an action of trespass to try title against a stranger, dies, it is not necessary to make the heirs or representatives of the deceased, parties to the action. The right of action of the survivors is not affected by the death of their co-plaintiff. [10 Tex. 520;24 Tex. 205.]

It is settled by the decision of this court in the cases of Clay's Heirs v. Holbert (14 Tex. 189), and Ruis v. Chambers (15 Id. 586)--the latter being a decision upon this very title--that the title is not invalid by reason of the want of two witnesses of assistance. [14 Tex. 189;15 Tex. 586;26 Tex. 212, 310.]

The plaintiff did not rely on the testimonio, alleged to have been altered, as evidence of title. Rejecting the part which had been added (the name of an assistant witness), he used only that part of it which was proved to be a copy of the original, as evidence of the contents of the original, together with proof of its execution.

Proof of the contents and due execution of the original dispensed with the necessity of relying on the testimonio as evidence of title. And though the latter had been altered or destroyed, that did not impair the legal effect of the former, or annul the title vested by it in the grantee and those claiming under him by regular mesne conveyances.

An authentic act done before a notary public in Louisiana in 1838, for the conveyance of land situated in the republic of Texas, may be proved by copy authenticated under the act of congress of the 27th of March, 1804.

Laws of which we judicially take notice recognize the Civil Code and Code of Practice of Louisiana as law in that state. (Hart. Dig. pp. 18, 321, and see Ordinances, etc. of the Consultation.) We therefore must judicially take notice that they are so.

We must also take notice of the Spanish law, in force here at the date of the act in question; we must know that the act duly attested (an act before a notary in Louisiana in 1838, for conveyance of land in Texas) makes proof in Louisiana, and that the original act of sale remained an archive in the office of the notary; consequently the plaintiffs could not be required to produce it, and its non-production was not a valid objection to the admission of the evidence (a copy authenticated under the act of congress) produced by them.

An act of sale of land by power of attorney in Louisiana is not evidence of the due execution of the power, although the exhibition of the power be recited in the record, more especially where the power purported to have been executed in a foreign country.

See this case as to the presumption of the genuineness of a power of attorney, by virtue of which an act of sale was made before a notary; in this case its genuineness was not presumed.

Appeal from Washington, transferred from Austin. Tried before the Hon. R. E. B. Baylor.

Action of trespass to try title, commenced on the 6th day of February, 1843, by Edwin Morehouse, the heirs of Nathaniel H. Watrous, and the heirs of John R. Cunningham, against Elizabeth McGrew, William McGrew, Hardin McGrew and Flood McGrew, for four leagues of land on the east bank of the Brazos river, opposite the town of Nashville, in Robertson county. Venue changed by plaintiff to Washington. Elizabeth McGrew, as the widow of James T. McGrew, and the other defendants as the children of said James and Elizabeth, claimed one league on which they had resided since 1834, claiming it as the headright of said James. They pleaded not guilty and the statute of limitations. Morehouse died during the pendency of the suit, and after several continuances to make his representatives parties, the defendants moved to dismiss the suit on the ground of the neglect of the plaintiffs to make said representatives parties. The motion was overruled and the cause continued for want of parties, to which the defendants excepted. Finally, at the spring term, 1853, the plaintiffs declared that they did not intend to revive the suit as to the representatives of Morehouse, and announced themselves ready to go to trial. The defendants again moved to dismiss for failure to make the representatives of Morehouse parties, which motion being overruled, the defendants excepted.

The case was submitted to the court without a jury. The plaintiffs claimed under a concession of nine leagues to Lieut. Col. Francisco Ruis; title extended on the 31st of August, 1833. They introduced in evidence a certified translation from the general land office, taken from the original or protocol, from which it appeared that there was only one assisting witness, viz.: C. C. Givens. They then introduced a paper purporting to be the title of possession for said nine leagues, in connection with the testimony of said Givens. Givens testified that the testimonio was an exact copy of the original on file in the land office, except the signature of W. T. Lightfoot as an assisting witness; that he had compared it with the original; that the name of W. T. Lightfoot was not in said original in the land office; “that his own name is to the said original; that the same was signed by L. LeSassier, who purports to execute the same, and that at the time of said signing the said L. LeSassier was acting alcalde at San Felipe de Austin; that he recollected the transaction by reason of other matters connected with the same, and he is acquainted with the signature of said L. LeSassier, and that the said original is his handwriting; that he, Givens, was the only witness to said original, and neither W. T. Lightfoot or any one else beside himself, was an assisting witness to the same.”

The competency of the translation was objected to on the ground that the absence of the second original was not accounted for, and because there was only one assisting witness.

The competency of the testimonio was objected to on the ground that it had been altered.

The plaintiffs then introduced in evidence a copy of an authentic act of conveyance, executed before Edward Barnett, a notary public in the city of New Orleans, in the state of Louisiana, from Francisco Antonio Ruis, attorney in fact for Francisco Ruis, to Edwin Morehouse, John Randolph Cunningham and Nathanial Huntington Watrous, dated 14th day of April, 1838, certified March 6, 1851, by Emile Hiriart, notary public, with a certificate by the judge of the second district court of New Orleans, that the attestation was in due form of law and by the proper officer, with the certificate of the clerk of said court of the official capacity of said judge, with the seal of said court. The act recited that personally came and appeared Mr. Francisco Antonio Ruis, of the republic of Texas, attorney in fact of Francisco Ruis of same place, duly appointed by act of procuration under private signature, dated at Bexar, in the said republic, on the 1st of February, 1838, and on the same day duly acknowledged before Erasmo Seguin, chief justice and ex-officio notary public for the county of Bexar, which power has been exhibited to the purchasers hereinafter named, and afterwards returned to the appearer, who declared that for the consideration of twenty thousand dollars, etc., conveying the four leagues of land described in the plaintiff's petition. The objections made to this evidence were:

1st. That the absence of the original was not accounted for. 2d. That the absence of the second original or testimonio is not accounted for.

3d. That the paper offered has not been recorded and cannot go to record.

4th. That said paper was not filed three days before the trial, and notice thereof given.

5th. That the said paper cannot be used as evidence without the production of the power or letter of attorney therein referred to, by virtue of which the same purports to be executed.

The plaintiffs then proved their heirship, and that the four leagues surveyed included all of the league claimed by the defendants, except a few acres in the lower corner on the river, where defendants' improvements were situated. No evidence of any possession under the Ruis grant.

The defendants then proved that James T. McGrew settled upon said league by permission of the empresario, Sterling C. Robertson, as his headright, and that he and the defendants had continued to occupy it ever since, claiming it as the headright of said James; that it had been surveyed by the surveyor of the colony for McGrew, on the 23d of December, 1835, the field notes of which survey were introduced in evidence; headright certificate No. 45, for a league of land issued to said McGrew on the 5th February, 1838, by the board of L. C. of Robertson county; field notes of a survey, dated April 15, 1839, for James T. McGrew, of one league of land situated on the east side of the river Brazos, opposite the town of Nashville, it being the quantity of land to which he is entitled by virtue of land certificate No. 45, issued by the board of land commissioners of Robertson county, the 5th of February, 1838. Oath of James Scofield, deputy surveyor for Robertson county, Franklin, April 20, 1839, that the foregoing survey was made according to law and that it had been made since the 1st of February, 1838. Certificate of examination and approval, Franklin, May 10, 183--(no signature), recorded in book A, page 156. Certificate dated September 2, 1846, by the surveyor of Robertson district, that the within certificate and field notes are recorded in book A, page 186 of his office. The defendants then proved that the certificate had been recommended.

The foregoing statement was submitted to the court upon the...