Paschal v. Perez

• Decision Date: 01 January 1851
• Citation: 7 Tex. 348
• Parties: PASCHAL AND OTHERS v. PEREZ AND OTHERS.
• Court: Texas Supreme Court

7 Tex. 348

PASCHAL AND OTHERS

v.PEREZ AND OTHERS.

Supreme Court of Texas.

1851.

A certified copy of a paper, &c., coming from the General Land Office, is not admissible in evidence in cases where the original would be admissible, unless the paper, &c., be a public document of which the Commissioner of the General Land Office is the legal custodian.

A paper, to be entitled to admission into the General Land Office as an archive, must have constituted an archive or record of some former office. It is immaterial in whose possession the paper may have been found before its deposit--whether in that of an empresario, political chief, alcalde, commissary, or commissioner for issuing land titles, or any other person-- provided it shall have been an archive or an original document or register in some office, and appertained to the land of the Republic.

A second copy of a title, which was granted by the Governor of Coahuila and Texas on the petition of the interested party, and certified as true by the Secretary of State, being issued to the interested party for his protection and to serve him as evidence of his title, was held not to be in the official custody of the Commissioner of the General Land Office; and a certified copy of it from the General Land Office was, therefore, held to be inadmissible. (Note 56.)

The provisions of the registry act of 1836 are not a little obscure; and such interpretation, consistent with the intent of the act, should be given as would secure the registration of the titles under which persons claimed their lands.

Under the registry act of 1836, an instrument under which title was claimed, and which was legal and authentic without subscribing witnesses, was admissible to record upon proof of the handwriting of the signer; and it seems that where the record was made, the presumption is that the proof was adduced.

Where the original would be inadmissible, the record copy would, as a consequence, be excluded.

The party who claims under a title archived in the General Land Office has also this difference in his favor, over one who claims under a copy directed to the interested party: that the officer to whom the copy was directed was the judge of its genuineness, and his action by virtue of such authority is evidence that in his judgment such decree, concession, or grant existed; and this would afford strong if not conclusive proof of such fact. So that, upon the whole, it may be said that there is a strong if not conclusive presumption in favor of the existence of the originals and parts of originals of all titles on deposit in the General Land Office.

The questions in relation to testimonios, or the second originals of titles, conveyances, &c., and in relation to archives, have been discussed in the case of Smith and Townsend, (Dallam, 559,) and of Houston v. Perry and Williams, (5 Tex. R.;) and the principles there stated have been affirmed in the case of Herndon v. Casiano, decided at this term of the court. (Note 57.)

Under our former laws an instrument was denominated authentic, in contradistinction to public or private instruments. Such instrument is defined to be a document authenticated by the seal of the king, prince, archbishop, bishop, cabildo, duke, count, marquis, or other person in authority. To this class belong writings made out by the notaries or secretaries of the cabildo, or ayuntamiento, in matters pertaining to such body, and also copies which the keepers of public archives take from the writings or papers of the archives, under the command of the king or judge having competent authority for that purpose; and such papers were entitled to faith in or out of the court, or, in other words, constituted full proof.

The Secretary of State of Coahuila and Texas had charge of the archives of the State, and was the proper officer to authenticate a copy of a title to lands or papers relating thereto where such title or papers emanated from or were returned to the Governor of the State.

Had the original testimonio, or second original, as it is sometimes called, been produced, and the signature proved, it would have been, of itself, at least prima facie evidence of title; and, supported by the circumstances adduced in evidence, (long and notorious possession and claim,) it would have afforded full proof.

We all concur as to the effect of a testimonio in evidence; but perhaps there might not be an entire unanimity of opinion as to the effect (admissibility) of a second certified copy (made before the Revolution) of the original remaining as an archive in a (former) now foreign Government.

Laws affecting the remedy are generally not within the scope of retrospective laws or laws impairing the obligation of contracts; but they may become so by impairing or destroying a right.

The effect of the change of Government and of the introduction of the common law on the admissibility in evidence of authentic instruments, muniments of title to property here, the originals of which now remain as archives in a foreign country, issued before the Revolution, discussed and left an open question.

There are limits to legislative power, as well over rules of evidence as upon other subjects.

But, were the certified copy in this case treated as the act of the officer of a foreign Government, its admissibility or effect is by no means a settled question at common law and on the principles of international jurisprudence. Whether the rules of evidence of the forum are to be exclusively observed, or whether those of a foreign country are to have weight, was considered by Mr. Justice Story as an embarrassing question. (Story's Confl. L., sec. 634 a, 637, and cases cited.)

It is no longer an open question that an imperfect title, emanating from a former and unrecognized by the existing Government, forms no foundation for an action.

An imperfect title is one which requires a further exercise of the granting power to pass the fee in the land which does not convey full and absolute dominion, not only as against all private persons, but as against the Government, and which may, consequently, be affirmed or disavowed by the political or granting authority.

It seems that under a decree of the 24th of February, 1805, the Governor of the provinces of Coahuila and Texas did not possess the power of complete alienation over the public domain; that his authority was limited to the incipient measures in the transfer of lands; and that these were subject to the revision and required the approval of the intendant of the intendancy of San Luis Potosi.

It seems that confirmation by the intendant was presumed after fifty-four years' possession; but quere as to all who possessed lands by sale from sub-delegates (governors of provinces) after 1700.

The plaintiffs in the court set up a title issued to their ancestor, Col. Don Ignacio Perez, in 1808, by Col. Antonio Cordero, military and political Governor of the province of Coahuila, and, ad interim, of that of Texas. The grantee, in his application, stated that he was the possessor of cattle, sheep, &c., and prayed that he might be granted possession of four leagues of pasture land upon the west bank of the Medina river. By decree of the Governor, the sindico procurador of the village of San Fernando and presidio of San Antonio de Bexar, proceeded, judicially, to make an ocular inspection of the land denounced; and, on his report, the Governor, as was recited in the document, by virtue of the authority conferred upon the office which he held, adjudicated the lands to the said Ignacio Perez, and commissioned the actual regidor to survey and designate by landmarks the lines and boundaries of the same, and to put the said Perez in possession, and to extend, in continuation of the decree, the corresponding documents, which being completed, the originals were to be returned to the Governor, that they might be placed among the archives, provided that the said Perez gave security for the payment of the sum of one hundred and twenty dollars, the price of the lands, and that a copy of the proceedings should be given to the party interested, that they might be presented by him or his attorney at the intendancy of San Luis Potosi, to obtain titles of confirmation, in conformity with the provisions of the royal order of the 14th of February, A. D. 1805. The regidor, Manuel Barrera, proceeded to survey the lands, and placed the grantee in possession, with the usual formalities, ordering the field-notes to be returned to the Governor, to be disposed of as he might deem best, and a copy to be given to the party, according to his verbal request: Held, That the title appeared upon its face to be inchoate, and that the plaintiffs could not recover. (Note 58.)

Appeal from Bexar. This action was brought for the recovery of lands. To support the claim, the plaintiffs in the court below set up a title issued to their ancestor, Col. Don Ignacio Perez, in 1808, by Col. Antonio Cordero, military and political Governor of the province of Coahuila, and, ad interim, of that of Texas. The grantee, in his application, states that he is the possessor of cattle, sheep, &c., and prays that he may be granted possession of four leagues of pasture land upon the west bank of the Medina river. By decree of the Governor, the sindico procurador of the village of San Fernando and presidio of San Antonio de Bexar, proceeded, judicially, to make an ocular inspection of the land denounced; and, on his report, the Governor, as is recited in the document, by virtue of the authority conferred upon the office which he held, adjudicated the lands to the said Ignacio Perez, and commissioned the actual regidor to survey and designate by landmarks the lines and boundaries of the same, and to put the said Perez in possession, and to extend, in continuation of the decree, the corresponding documents, ( los diligencias,) which being completed, the originals were to be returned to the Governor, that they...