Pence v. Cobb

• Decision Date: 27 February 1913
• Citation: 155 S.W. 608
• Parties: PENCE et al. v. COBB.
• Court: Texas Court of Appeals

155 S.W. 608

PENCE et al. v. COBB.

Court of Civil Appeals of Texas. El Paso.

February 27, 1913.

On Rehearing, April 3, 1913.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Zach Lamar Cobb against Amy Pence and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Loomis & Knollenberg and Patterson, Buckler & Woodson, all of El Paso, for appellants. Z. L. Cobb, M. Nagle, and S. Thurmond, all of El Paso, for appellee.

HIGGINS, J.

Action in trespass to try title by Cobb against appellant for 48.94 acres of land situated in El Paso county in the Socorro grant, resulting in judgment in his favor.

On February 11, 1858, the Legislature enacted this law:

"Section 1. Be it enacted by the Legislature of the state of Texas, that the state of Texas hereby relinquishes all right and interest in the following described lands, to the original grantees thereof, their heirs, and legal assigns, to wit: In the county of El Paso—(1) To the people of the town of Socorro, one league of land, called `El Pueblo de Socorro.' (2) Jose Sanchez, Guadalupe Miranda and Romelo Barela, one league and one half league of land, called `El Canutillo.' (3) To Juan Maria Ponce de Leon, two caballerias of land, called `El Rancho de Ponce,' now known as the town of Franklin. (4) To Juan and Jacinto Ascarete, three leagues of land, called `El Rancho de Ascarete.'

"Sec. 2. That it shall be the duty of the several claimants to the lands named in this act, to have the same surveyed by the district or county surveyor of said county, which survey shall in all respects conform to the metes and bounds designated in the original grant, and upon the return of the field notes thereof to the General Land Office, the Commissioner of the General Land Office, is hereby authorized and required to have the same plotted on the proper map in his office, and issue patents for the same in accordance with existing laws.

"Sec. 3. That the confirmation herein extended to the lands named in this act, shall in no way be construed to interfere with any rights which may have accrued to other parties before the passage of this act. Provided, that nothing in this act shall be so construed as to relinquish the right of the state to any of the islands or salt lakes situated in the county named in this act." Acts of 1858, 4 Gammel's Laws of Texas, p. 1027.

On September 23, 1878, patent was issued "to the inhabitants of the town of Socorro" for 2 leagues, 14 labores, and 500 square varas of land on the waters of the Rio Grande, described as follows: "Beginning at a stake and mound on the bank of the Rio Grande set for lower corner of survey 42 for the town of Solita; thence N. 21¾ deg. E. 2,670 varas along the southeast boundary of survey 42 to a stake and mound; thence N. 48½ deg. E. 1,450 varas to a stake and mound on the bank of an acequia; thence N. 37 deg. E. 3,020 varas to a stake and mound on a sand hill called La Loma de Cruz de San Antonio; thence N. 70¾ deg. E. 9,400 varas to a stake and mound in the northeast corner of survey 42; thence S. 30 deg. E. 10,810 varas along said sand hills to a stake and mound 140 varas from the edge of the valley; thence S. 73½ deg. W. 7,740 varas along the north boundary of the San Elizario grant to a stake and mound on the bank of the Rio Grande, it being the upper corner of the San Elizario grant and lower corner of this survey; thence up the river with its meanders as follows (giving courses and distances) to the place of beginning." The patent recites that it was issued by virtue of said act above mentioned, and in confirmation of the Spanish grant of said land.

By an act of the Legislature dated April 26, 1871 (6 Gammel's Laws, p. 1314), the citizens of the town of Socorro in El Paso county were declared a body corporate under the style of the "Town of Socorro"; the limits of the incorporated town being coincident with the land granted by the above described patent. Control over its corporate affairs was vested in a mayor and nine aldermen, under the style of "Town Council of the Town of Socorro." It was provided that the justice of the peace of the precinct in which the town was situate should be ex officio mayor thereof. Under the view which we take of the case, it is unnecessary to notice the other provisions of the act.

The inhabitants of the town ignored the special charter of 1871, and in 1882 attempted to organize under the general municipal incorporation laws, and on January 19, 1882, an order was entered in the minutes of the commissioners' court of El Paso county, declaring the result of an election held to determine whether the town should incorporate, and declaring the inhabitants thereof incorporated under the name of the town of Socorro. The territory embraced within its limits was described as bounded on the north by Ysleta, on the east by the foothills, on the south by San Elizario, and on the west by the Rio Grande. This attempted organization was abolished by an election held October 15, 1883, in pursuance of which an order abolishing same was entered in the minutes of the commissioners' court on November 12, 1883. On January 22, 1886, an election was held to determine whether or not the town should incorporate under the provisions of chapter 11, title 17, and on January 26, 1886, an order was entered in the minutes of said court declaring that the inhabitants of the town of Socorro "included in the boundaries of the Socorro grant of one league, be, and they are hereby incorporated as a town, and to be known, named and called Socorro." Chapter 11, title 17, of 1879 Revised Statutes, relates to towns and villages of 200 to 1,000 inhabitants. In Revised Statutes of 1895 it appears as chapter 11, title 18; in Revised Statutes of 1911 as chapter 14, title 22. In 1891 (10 Gammel's Laws, p. 234) a special law was passed validating deeds theretofore executed by the corporation thus attempted to be created in 1886; but, under the view which we have of the case, it is unnecessary to notice same.

The town continued to act under the 1886 incorporation, and by deed dated June 10, 1910, undertook to convey to appellee, for a consideration of $100, various lands, including that in controversy herein. This deed was executed after Cobb had acquired the so-called Thibault title hereinafter mentioned.

On December 15, 1910, in an action of trespass to try title, Cobb against the corporation of the town of Socorro, a judgment was rendered in the district court of El Paso county in favor of Cobb for the title to and possession of the land in controversy herein.

In addition to this deed of June 10, 1910, and the judgment of December 15, 1910, Cobb relied upon title acquired from the heirs and assignees of one J. J. Thibault. As evidencing title in Thibault, he offered in evidence instruments recorded in the deed records of El Paso county, as follows: The field notes of a survey made for J. J. Thibault within the town of Socorro, said survey being No. 5, giving courses and distances, dated February 24, 1855, containing 146 acres and 57/60 varas, made for J. J. Thibault, containing the land in controversy, lying within the Socorro grant, signed and certified to by the surveyor of the El Paso district. Attached to the field notes of this survey was a notation, as follows: "Note by J. J. Thibault. The annexed survey (referring to the above survey) comprises the lands bought of different persons according to the accompanying deeds, numbered from 2 to 15 inclusive." The deeds referred to in said note by J. J. Thibault, 14 in number, were also offered in evidence; No. 2 reading as follows: "I, Juan Jurado, citizen of this town of Socorro, say the present witnesseth that I have sold to J. J. Thibault, a piece of land on the other bank of the river bed, in the place called `El Bado de la Acequia Dura,' and for said land he gave me the sum of forty-five dollars ($45), which amount I have duly received; and as of this land I have no documents whatever, I give him this paper only as proof of sale, citing the adjoining owners, who are: On the north side Fabian Chaves and Jesus M. Padilla; on the south the old river; on the west Marcos Jurado and J. J. Thibault and on the west Pedro Jorge Lujan. In witness whereof, I sign the same with two witnesses in the court of Socorro on the 22d day of August, 1854."

The remaining deeds are not copied in full in the statement of facts, but it is stated that they are all similar to the instrument above quoted and bear dates during the months of August, October, November, and December, 1854. The number of acres undertaken to be conveyed by the various deeds is not given, and the lands conveyed were described by giving the names of the adjoining owners. Deed No. 15 was undated and unsigned, but purports to be given by Francisco Garcia. J. J. Thibault is the grantee named in all of the deeds. They are all in the Spanish language, and are unacknowledged. The field notes of the survey made for Thibault, the memorandum made by him, and said deeds were all recorded together in the deed records of El Paso county on August 24, 1857. Conveyances were also offered in evidence passing to Cobb whatever title J. J. Thibault may have had. A deed dated March 3, 1888, from the mayor of the town of Socorro, conveying 6.63 acres of land, was also offered in evidence. The grantee of this deed is not disclosed by the record. It is stated that the land conveyed thereby lies west of and adjacent to the land in controversy, and accompanying the deed is a plat of the land conveyed. The words "Thibault tract" were written upon the plat and across land lying adjacent to said 6.63 acres, and along the western boundary line of the tract were written the words "Gregorio Olguin." In introducing this deed appellee stated that it was offered for the purpose of showing that J. J. Thibault and his above-mentioned grantors were recognized by the corporation of Socorro as...