Samuel White, William Cooke, Chambers Etler, John Baldwin, Henry Huck, As Administrator of Herman Rodgers, and In His Own Right, John Brien, Oliver Stapp, and Thomas Rooke, Plaintiffs In Error v. Albert Burnley

• Decision Date: 01 December 1857
• Citation: 20 How. 235,15 L.Ed. 886,61 U.S. 235
• Parties: SAMUEL A. WHITE, WILLIAM M. COOKE, CHAMBERS ETLER, JOHN H. BALDWIN, HENRY J. HUCK, AS ADMINISTRATOR OF HERMAN H. RODGERS, AND IN HIS OWN RIGHT, JOHN P. O'BRIEN, OLIVER H. STAPP, AND THOMAS ROOKE, PLAINTIFFS IN ERROR, v. ALBERT T. BURNLEY
• Court: U.S. Supreme Court

61 U.S. 235

20 How. 235

15 L.Ed. 886

SAMUEL A. WHITE, WILLIAM M. COOKE, CHAMBERS ETLER, JOHN

H. BALDWIN, HENRY J. HUCK, AS ADMINISTRATOR OF HERMAN

H. RODGERS, AND IN HIS OWN RIGHT, JOHN P. O'BRIEN,

OLIVER H. STAPP, AND THOMAS ROOKE, PLAINTIFFS IN ERROR,

v. ALBERT T. BURNLEY.

December Term, 1857

THIS case was brought up, by writ of error, from the District Court of the United States for the district of Texas.

It was an action of trespass, to try title brought by Burnley against the plaintiffs in error, in the District Court of the United States for the district of Texas, to recover a league of land, situated in Calhoun county, of that State.

Upon the trial, Burnley traced his title in this manner:

1. A document purporting to be the original testimonio, in Spanish, of a colonial grant in the colony of Martin De Leon, made by Fernando De Leon, commissioner, to one Benito Morales. The date of it was 11th April, 1835.

2. A deed from Benito Morales to Leonardo Manso, dated 27th May, 1835.

3. Conveyance from Manso to Peter W. Grayson, dated 6th April, 1836. This deed was executed in the parish of St. Landry, Louisiana, before Pierre Labiche, a notary of that place.

4. Conveyance from the executors of Grayson to Burnley and Jones, dated 22d of May, 1844.

The second and fourth of these deeds were given in evidence without objection. The first and third were objected to.

The objection to the original grant constituted the subject of the first bill of exceptions. The defendants, by their counsel, objected to its admission, on the ground that the want of authority in the commissioner of the colony to make the grant, appears upon the face of the grant itself, viz: that it appears therein that it includes more than one sitio or league of land, which was the limit of his authority; and thereupon, the court expressing a willingness to hear testimony as to law and usage on this subject, evidence was produced on both sides, when the court allowed the grant to be read in evidence to the jury. To this ruling the defendants excepted.

The plaintiff then proceeded with the deduction of his title, and read the deed from Morales to Manso, without objection. The next step in his title was the deed from Manso to Grayson, which was executed in Louisiana. What was offered in evidence purported to be a copy taken from a notary's books, and began in this way:

'Be it known that this day, before me, Pierre Labiche, notary public in and for the parish of St. Landry, duly commissioned and sworn, personally came and appeared Leonardo Manso, citizen of the Republic of Nexico, who declared,' & c., &c. This deed was certified in such a manner as to induce the counsel for the defendants to agree as follows:

'I admit the sufficiency of the certificates to the foregoing deed as conformably to the act of Congress, March 27th, 1804, waiving want of notary's seal, &c. but do not admit that the deed could be certified under that law.

'GEORGE W. PASCHALL,

'ALLEN S. HALE,

'Attorneys for Reuss S. Bendewald.'

There was also offered the deposition of a witness that he had examined the deed on file, a certified copy of which was paraphed by him; that he was acquainted with the notary's handwriting, &c., &c.

To the admission of which copy of said deed of conveyance the defendants by their counsel objected, on the following grounds, that is to say——

First. Because it was not executed in accordance with the then existing law of Texas in this, to wit:

1. That it did not appear that it was executed before any notary or other officer authorized by law to take and authenticate public instruments.

2. That it does not appear that the foreign notary, before whom it purports to have been passed and executed, made out and delivered to the interested party at the time a testimonio, or second original, as by the then existing law was required.

Secondly. Because the protocol or first original should be produced, or satisfactorily accounted for, before said copy, which is secondary evidence, can be admitted.

Thirdly. Because, if any testimonio or second original was ever in fact issued, its absence is not accounted for.

Fourthly. Because the showing that the protocol, or first original, is in the office of a notary in the parish of St. Landry, in the State of Louisiana, is not satisfactorily accounting for the non-production of the original.

Fifthly. Because the notary's office in the State of Louisiana is not, quoad the original paper, a public office within the meaning of the act of Congress of March 27, 1804, entitled 'An act supplementary to an act entitled 'An act to prescribe the mode in which the public acts, records, and judicial proceedings, in each State, shall be authenticated, so as to take effect in every other State."

Sixthly. Because the notary's office in the State of Louisiana is not, quoad the original paper, a public office within the true intent and meaning of the rule of the common law.

Seventhly. Because it is not proven in accordance with the rule and principle of the common law, in this, to wit:

1. That the witness, Guy H. Bell, does not prove that it is an examined copy, compared by him with the original.

2. That the witness, Guy H. Bell, does not state his means of knowledge of the handwriting of the witness, John Simons, nor that he was acquainted with his handwriting.

3. That the said witness, Guy H. Bell, does not state his means of knowledge of the handwriting of Pierre Labiche, the notary; and

4. That all proof relating to the handwriting of the notary, Pierre Labiche, is irrelevant, inasmuch as he was not an instrumental, assisting, or subscribing witness, to said original paper.

Eighthly. And to the deed itself it was further objected, that it has neither instrumental nor assisting witnesses, as by the law of Texas, in force at the time, was required.

Ninthly. That the deed of conveyance shows upon its face that it was executed upon the 6th of April, in the year 1836, by Leonardo Manso, reciting therein that he was a citizen of the Republic of Mexico, to Peter W. Grayson, reciting therein that he was a citizen of Texas, late a portion of said Republic of Mexico; and the fact being judicially known to the court that said Republic of Mexico and said Republic of Texas were then engaged in an open and public war with each other, the said deed of conveyance was and is therefore void.

But the court allowed the deed to be read, and this constituted the defendant's second bill of exception.

The plaintiff then, proceeding with his title, proved the will of Peter W. Grayson, deceased, with the probate thereof, and the grant of letters testamentary to the executors, who conveyed to Burnley and Jones the undivided three-fourths interest in and to all the lands conveyed by Leonardo Manso to Grayson. A deed from Jones to Burnley completed the plaintiff's title.

The third bill of exception by the defendant related to the introduction of certain depositions de bene esse by the plaintiff, which need not be further noticed.

The plaintiff then rested.

The defendants then offered a vast mass of evidence, which it is impossible to specify minutely. Their line of defence was this:

1. That the grant contained within its alleged boundaries a much greater amount of land than the grant called for, viz: fifty millions and upwards of square varas, being over two leagues, instead of one; and that there was not over a laber of marsh and water on the tract.

2. That the empresario De Leon had no right to grant the locus in quo, because it was not within the jurisdiction of his empresa, and because he, De Leon, had never had the consent of the Federal Executive to his colonizing the coast leagues.

Upon this point, the plaintiff offered rebutting evidence.

3. That White had resided upon his own head right ever since 1842, had laid off a town there, and the other defendants held under him.

The defendants offered other matters in defence, which will be sufficiently explained by the rulings of the court below upon those points which formed the basis of the decision of this court. There were twenty-nine prayers made to the court by the counsel for the plaintiff, all of which were granted; twenty-four prayers by the counsel for the defendants, which were refused, and nine instructions given to the jury by the court, at the instance of the defendants. Instead of inserting all this voluminous matter, the reporter prefers to take up in succession the points decided by this court, and to show what were the rulings of the court below or refusals upon those points.

The first proposition decided by this court is the following, viz:

'The land granted was alleged to be within the empresario contract of De Leon. After proof that many of the documents upon the subject were destroyed in the revolution, the court left it to the jury to decide whether or not the land was thus situated. This ruling was correct.'

Upon this point, the rulings of the court below were as follows:

The court refused the following instructions, asked by the defendants, viz:

3d. That the official acts of the various authorities of Coahuila and Texas, and of the Vice President of Mexico, show that the controversy between Power and Hewetson and De Leon, as empresarios, only related to such conflict as existed between the calls of their respective grants, between the Nueces and Lavaca rivers, and the documents showing the decisions of the respective Governments in relation to their controversy being Alaman's dispatch of December 23d, 1831, and Letona's dispatch of March 10th, 1832, are to be understood in no other way than as intending to place De Leon in possession of such lands as were embraced within his two contracts, (the first of the date of April 18th, 1824, the other his augmentation contract of April 30th, 1829,) and said dispatches and the law did not authorize the political chief of the department of Bexar to enlarge or extend those grants, or embrace within...