San Antonio v. San Antonio

• Decision Date: 01 January 1855
• Citation: 15 Tex. 388
• Parties: SAN ANTONIO v. NATHANIEL LEWIS. SAN ANTONIO v. BRYAN CALLAGHAN.
• Court: Texas Supreme Court

15 Tex. 388

SAN ANTONIO

v.NATHANIEL LEWIS.

SAN ANTONIO

v.BRYAN CALLAGHAN.

Supreme Court of Texas.

1855.

Where the local authorities of the city of San Antonio de Bexar, in 1808-9, with the approbation of the governor of the provinces of Coahuila and Texas, for the purpose of improving the shape of the main plaza, and of raising money to repair the public buildings, and reciting his majesty's royal ordinance of 1786 as authority therefor, sold a part of the plaza, but there was no actual interruption of the use of said part by the public until 1847, an action by the city to have the buildings erected thereon by persons claiming under the sale made in 1808-9, removed as nuisances, the title papers annulled, etc., was sustained.

It seems that where a jury is waived in the court below, and there is a statement of facts, it is not a right of the appellee, in any case, if the judgment be reversed, to have the case remanded.

Appeal from Bexar. These suits were commenced April 27, 1852. The proceedings which eventuated in the sale to Zambrano were as follows: Petition by Fernandez Veramendi, syndic procurador of San Antonio de Bexar, June 3, 1808 (“in the discharge of one of the sacred duties imposed upon him by his office, in promoting all that may concern the improvement and aspect of the town, the repairing of the public works which are fast going to decay, and the finding of the means to defray the expenses which may be incurred, without burthening the public”), to Cordero, governor of the province, representing that “the principal plaza of this town, being of an imperfect shape, may be improved, reducing it to an almost perfect square, by drawing a line from the alley of the royal buildings to that formed by the church and the house of Galan;” that the sale of the part so cut off “will produce an effective sum, and it may immediately be applied to the repairing and improvement of the palace of the government and the royal buildings, and, should there be a surplus, to other public objects.”

Ordered by Cordero to be referred to the ayuntamiento, June 9, 1808.

Approbation of the ayuntamiento, June 10, 1808. Decree by Cordero. Having seen and examined the foregoing plans proposed by the syndic procurador, to perfect the figure of the square called the “De Villa” of the town; the report of the assent of the ayuntamiento; and finding it all in conformity with the provisions of his majesty of his royal ordinance of 1786 concerning the improving of the aspect of the settlements, particularly when said object is going to be obtained in the proposed improvement of said plaza, without the least burthen to the public or to private persons; but, on the contrary, with known advantage to both, I approve of the laying off of the block proposed by the syndic procurador, and the sale of its ground in favor of private persons who may wish to buy it; commissioning, for the purpose of effecting said sale in due form, at public auction, the alcalde of the first vote of this capital, Don Ignacio Perez, in order that, with the knowledge and co-operation of the said syndic procurador, he may strike off the ground of said block in favor of the best bidders. Let him make out the necessary papers, giving gratis to the interested parties the testimonials required for them, and deposit in the coffers of the government the sums procured by said operation, destined to the objects proposed by the syndic procurador. I, the military and political governor of the provinces of Coahuila and Texas, colonel of cavalry of the royal armies, D. Antonio Cordero y Bustamente, thus provide, order and sign, with the witnesses in my assistance, acting by deputation in the absence of a notary, there being none in the terms provided by law, etc. (Signed and witnessed.)

June 11, 1808, publication for sale of said block, being sixty-six varas by thirty-eight, at a minimum of $15 per vara.

June 24, 1808, was made the last solemn proclamation of sale and the only bidder, the subdeacon, Don Manuel Zambrano, not having presented in cash the amount of his bid, which was $15 for each vara, “in order to better the sale, the adjudication was not made.”

February 3, 1809, after several efforts to obtain a larger price by publication of the sale, the property was adjudicated to Zambrano, he having reiterated his original bid, which amounted to $990. Reported to the governor same day.

Bexar, February 9, 1809. Having seen the proceedings, I approve the adjudication of the land above mentioned, to the aforesaid subdeacon; and, provided he offers to build it up immediately, let the proper documents be made out by the proper tribunal, and possession given of it, giving the interested party a moderate time to pay the total amount, notifying him that in not complying with the offer, he will lose the ownership of what he has bought. SALCEDO.

Then followed the notification to Zambrano, February 14, 1809, that this offer had been accepted; he was given until the arrival of the captain of militia, Don Jose Maria Lada, for the payment of $500, and all the month of the next June for the payment of the balance, $490; “and...