Rodriguez v. Priest

• Decision Date: 16 February 1910
• Citation: Rodriguez v. Priest, 126 S.W. 1187 (Tex. App. 1910)
• Parties: RODRIGUEZ et al. v. PRIEST et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

126 S.W. 1187

RODRIGUEZ et al. v.PRIEST et al.^†

Court of Civil Appeals of Texas.

February 16, 1910.

On Motion for Rehearing, April 6, 1910.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Juan F. Rodriguez and others against Joe Priest and others, in which defendantsH. B. Glover and Adele Glover filed a cross-bill.Judgment against plaintiffs and defendants Glover, and they bring error.Affirmed in part, and reversed and remanded in part.

W. Y. McFarland, Don A. Bliss, and Henry E. Vernor, for plaintiffs in error.Wm. Aubrey, for defendant in error Priest.Guinn & McNeill, and Davis & Lipscomb, for other defendants in error.

FLY, J.

This is an action of trespass to try title to a certain lot or parcel of land described as a part of the Gavino Valdez survey, in Bexar county, instituted by Juan F. Rodriguez, Maria A. Rodriguez de Code, joined by her husband, Edward Code, and Hortense Martinez Nicklis, joined by her husband, E. E. Nicklis, against the defendants in error, Joseph Priest, Ida C. Pfeuffer, Eli Arnaud, H. E. Hildebrand, Joseph A. Burger, and Adele Glover and her husband, H. B. Glover.Joe Priest pleaded general demurrer, general denial, not guilty, and three, five, and ten years limitation, and also alleged that he had in 1907 purchased 31.9 acres of the land from Clothilde Licardies and others, and had on June 8, 1907, purchased 72.3 acres of the land from Eli Arnaud and wife, and disclaimed as to the balance of the land.That answer was adopted by Eli Arnaud.Ida Pfeuffer pleaded general denial and not guilty, and alleged that the land described in plaintiff's petition did not include the land owned by her and fully described in her answer, and pleaded three, five, and ten years limitations.She claimed to have purchased the land from H. E. Hildebrand and Joseph A. Burger, and she vouched them in on their warranty of the title.Hildebrand and Burger pleaded general denial, not guilty, and limitation of three, five, and ten years.Adele and H. B. Glover pleaded general denial, not guilty, and disclaimed any title to any of the land except 37 acres described by them, and filed a cross-bill as to Pfeuffer, Hildebrand, Burger, and Mrs. Chieusse, who they claimed had unlawfully ousted them from the land described in their answer.The cause was tried without a jury and judgment was rendered against Rodriguez, the Codes, and Nicklis on their suit, and the Glovers on their cross-bill, in favor of Pfeuffer, Hildebrand, and Burger for the land claimed by them, and in favor of Joseph Priest and Eli Arnaud for the 72.3 acres, more or less, of land claimed by them.This writ of error is prosecuted by those who were plaintiffs in the lower court and by Adele and H. B. Glover.

The land in controversy is composed of two tracts, situated within the corporate limits of the city of San Antonio—one containing 37 acres decreed to be the property of Ida Pfeuffer, which is marked "P 37" on the plat inserted hereinafter; the other the strip of land immediately north of the Merrick tract and west of Arroya de la Concepcion, or Creek of the Conception, which was decreed to be the property of Joe Priest, and is marked "Joe" on the plat.The west line of the Priest tract is a continuation of the west line of the Pfeuffer tract; the line running along what is known as the "Somerset Road."Both tracts are claimed by plaintiffs in error, except the Glovers, under a grant made by the Spanish government in 1798 to Gavino Valdez, a conveyance by Valdez to Mariano Rodriguez dated September 15, 1809, and the will of Mariano Rodriguez probated August 2, 1861, devising the land to them and their ancestors.The Glovers claimed the Pfeuffer tract as against Ida Pfeuffer and as against the other plaintiffs in error.The Priest tract is claimed by Joe Priest through conveyances from Eli Arnaud, Clothilde Licardies, and others.Ida Pfeuffer claims the Pfeuffer tract through her grantors, H. E. Hildebrand and Joseph A. Burger.The following plat will give a clearer conception of the situation of the land in controversy:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The first assignment is that the court erred in refusing to allow appellants to be heard in argument of the cause after the evidence had been introduced, and article 1, § 19, of the state Constitution, is invoked to sustain the assignment.That article provides that "no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."It may be that courtesy demanded that counsel should have been heard in argument by the court; but a refusal to hear the argument cannot be made the ground of reversal, unless it is made to appear that the judgment of the court was improperly rendered.McHugh v. Peck, 29 Tex. 141.In other words, the deprivation of the privilege to deliver an argument must be shown to have worked to the prejudice of those complaining of the deprivation.The right to submit a case in argument to a jury is secured by article 1299, Rev. St., and in article 1292 it is provided that "rules prescribed for the trial of causes before a jury shall govern in trials by the court so far as may be applicable."Whether the right to be heard by a jury in argument is a rule applicable to a trial by the judge or not, we think the matter of listening to argument is one to be largely confided to the wise discretion of the court, and such discretion should not be questioned, unless the party complaining of not being heard in argument can show that he has been deprived of some substantial right or benefit.

The second and third assignments of error, which assert that the court rendered his decision without reading or allowing to be read to him the documentary evidence in the case, fall in the same category with the first assignment of error.If the cause was decided correctly by the trial judge, what does it profit appellants to complain of such action on the part of the court?In a trial by a court, if the judgment is absolutely correct, an appellate court cannot reverse for irregularities and improprieties on the part of the trial court which do not impugn the correctness of his decision.

The fourth assignment of error assails the action of the court in sustaining objections, while rendering his judgment, that were made during the trial to the use in evidence of a certified copy of the record of the original grant made by the Spanish government to Gavino Valdez.Those objections had been previously overruled.If the evidence was properly rejected, it would not matter when the rejection took place, whether during the course of the trial, or when delivering the decision of the court.The only question is: Should the court have considered a copy of the grant made by the Spanish government to Gavino Valdez?The grounds of objection to the copy of the instrument were: "That it had not been shown that said grant had been authorized or confirmed by the intendency of San Luis Potosi; that said grant was void for want of a sufficient description of the land covered thereby; that the description of the land as contained in said grant was so vague and indefinite that the land purported to be granted therein could not now be identified on the ground that the record offered was not the record of a duly registered instrument; that the instrument of which said record purports to be a copy was not acknowledged for record; that the instrument of which said record purports to be a copy was not proved for record; and that no predicate has been laid for the introduction of secondary evidence of the existence and contents of the original instrument."Another objection was that the field notes of the grant are different from those in the petition for the grant, which it was commanded should be followed.

There was an affidavit made by the plaintiffs of the loss of the original grant.From the recorded instrument it appears that on August 24, 1798, Gavino Valdez, who describes himself as "Commissary of the Holy Office of Parish Priest, Vicar in Charge, Ecclesiastical Judge, and Royal Chaplain of this town of San Fernando and Royal Presidio of San Antonio de Bexar and its District," applied to the government for a grant, "in the name of his majesty," for a piece of land, adjoining the ranch which now belongs to Jose de la Santa, boundaries of which are: "On the east of the crossing called San Jose on the main inside road of the Mission, on the west by the small creek called Della Concepcion, on the south by the main outer road of the Mission, and north the river bottom which runs from here.The land embraced by those boundaries is from east to west from said San Jose crossing to the creek called Concepcion in longitude, and in latitude from south to north from the said outer road to the inner road up to the said Concepcion creek, always inclined towards the river; said land coming to form a species of triangle, and its dimensions not being over 800 varas.This is for a ranch site.For grazing, I petition you in the direction of west and north, that is from what is called the ranch Antonio Leal, in longitude, and in latitude up to what is called the lands on Leon creek."The petition was referred by Manuel Munoz to the Spanish alcalde of the mission of San Jose, who reported favorably on it.

Munoz, who describes himself as "Colonel of the Cavalry of the Royal Forces of his Majesty, Political and Military Governor of the Province of Texas, and subdelegate in the two departments of domestic affairs and war," in the name of the king of Spain, upon the favorable report of the alcalde, granted to Gavino Valdez the land for which he petitioned "regulating it precisely in proportion to the measurements which the said parish priest designates in his said petition."He conferred on Pedro Huizar, Spanish alcalde of the mission of San Jose, the...