Sheldon v. Milmo

• Decision Date: 18 June 1896
• Citation: 36 S.W. 413
• Parties: SHELDON v. MILMO et al.
• Court: Texas Supreme Court

36 S.W. 413

SHELDON v. MILMO et al.

Supreme Court of Texas.

June 18, 1896.

Error to court of civil appeals, Fourth supreme judicial district.

Trespass to try title by Thomas C. Sheldon against Daniel Milmo and others. A judgment for defendants was affirmed by the court of civil appeals (29 S. W. 832), and plaintiff brings error. Reversed.

Bethel Coopwood and Walton & Hill, for plaintiff in error. J. O. Nicholson, for defendants in error.

GAINES, C. J.

This was an action or trespass to try title, brought by the plaintiff in error against defendants in error to recover a portion of a tract of land claimed by the former under an alleged Spanish grant. The defendants claimed title by virtue of certain patents issued by the state of Texas. The case was tried without a jury, and resulted in a judgment in favor of the defendants. There was an appeal to the court of civil appeals upon the conclusions of fact and law filed in the trial court, no statement of facts having been prepared and made a part of the record. The court of civil appeals rendered a judgment of affirmance, and to reverse that judgment the writ of error from this court has been applied for and obtained.

In his conclusions, the trial judge found, among other facts not necessary to recite:

"(1) That in 1816 Jose Manuel Garcia obtained a grant from Jose Rafael Enriquez, the justice at Palafox, to two sitios of land, said grant being as follows, to wit:

                         "Two Reals
                [Seal of Third Stamp—Two Reals—Years
                 Spain.] eighteen hundred and fourteen
                         and fifteen
                

"`To His Honor the Governor: Don Manuel Garcia, captain of militia, and a resident of the town of Palafox, with the greatest due respect and submission would appear before you and say that I have, for about fourteen years, claimed and possessed as my own two sitios of pasture lands, of about one league, at a distance of a quarter of a league from said town, on an eastern course, where I have opened a rancho, with dwelling houses, pens, and fence, within a pasture ground formed by the bends of the Rio Grande, where I raise crops according to the seasons; and inasmuch as it is not my intention to abandon it, notwithstanding the enormous damages I have experienced from the savage Indians, and wish to secure it as a lawful possession, I request that you be pleased, if you consider it just, to order that I be placed in the lawful juridical possession of said lands, and that the proper testimonio of it be given to me. Therefore, I request and pray that you be pleased to accede to my petition, wherein I shall receive favor and justice. I swear that I do not act maliciously, and the requisites, etc.

                  "`City of Monclova, the 20th of February
                1816.               Jose Manuel Garcia
                  "`Monclova, February 22, 1816.
                  "`In consideration of the merit acquired
                by the petitioner by improving and settling
                the tract of land which he mentions, and
                having possessed it several years, notwithstanding
                the evident risk from savage Indians,
                the justice of Palafox will issue to him
                the respective documents for which he makes
                application.                        Adam.
                

"`Town of San Jose de Palafox, April 20, 1816.

"`In conformity to the superior decree of the governor of Monclova, Don Francisco Adam, extended on the margin of the petition, let there be given to the petitioner the sitios of pasture land which is formed by the bends of the Rio Grande, where he raises his respective crops, to which effect, I, the subdelegate of this town, Jose Rafael Enriquez, will proceed to the examination and survey of the same, as is stated by the party in his petition. This I have ordered by this decree, signed by me, the said judge, and my assisting witnesses, with whom I act in default of a notary public, there being none according to law, which I certify. In the same town, same day, month, and year, I, the same judge, and my assisting witnesses, jointly with the party interested, Don Manuel Garcia, proceeded to the tract of land indicated, in which I placed him in possession, —the boundaries whereof run from the town tract (egidos) on the west, from the narrows (la angostura), and on the east to the Llave creek; on the south it adjoins the bends (ancones), which I did also adjudicate to him, and gave him possession thereof without leaving any room to be occupied by another; and on the north to Santa Isabel creek, giving him likewise possession of the dwelling houses and pens situated on the high ground on the same valley (vega) where the said bends exist. By virtue of what has been practiced in the name of the king, our lord, whom God save, I order that he be not despoiled of said tract of land without a previous hearing and having forfeited it by due course of law, to be protected in it without prejudice of a third party or another representing a better right thereto, as being entitled to the same for his meritorious services, and henceforth and forever, he may make such use thereof as he deems proper, unto him, his children and assigns. And for its perpetuation, I give him the present original title of possession, with assurance of transcribing a literal testimonio of it whenever the proper paper is on hand, there being none at present in the revenue office; I, the said judge, and my assisting witnesses signing hereto in default of a notary public, there being none according to law, which I certify.

                                  "`Jose Rafael Enriquez.
                  "`Assisting: Francisco de Errera.
                  "`Assisting: Jose Marfia Gongalez.'
                

"(2) That in 1818 the said Garcia conveyed this land to Don Rafael Enriquez by a conveyance written on the same sheet as the grant.

"(3) That Rafael Enriquez conveyed this land to F. Gilbeau and Volney E. Howard, and that plaintiff by good and valid deeds derives title thereto through said Gilbeau and Howard.

"(4) That both said grant and deed were archived in the general land office of Texas in December, 1846.

"(5) That the deed from Garcia to Enriquez could not be detached or separated from the grant without leaving evidence that there was some other paper wanting belonging to said original grant.

"(6) That Garcia and Enriquez had possession of a portion of the lands described in plaintiff's petition in the bends of the river south of the town of Palafox from about 1813 to 1820; that the town of Palafox as well as the rancho were destroyed by the Indians about 1820; that there has been no possession of said lands since said date.

"(7) That this grant was not platted as described in plaintiff's petition, and so as to include any portion of the lands in controversy, until August, 1880; that prior to that time it was platted about 10 miles north of its present location, and at a point that would not include any portion of the lands now claimed as shown in the following plat: [Here follows the plat.]

"(8) That the defendants claim to have patents from the state of Texas to six sections of the land in controversy, described in their answers, all of which were located after this land was platted in August, 1880, except survey No. 233.

"(9) No evidence to support the three years' limitation or stale demand.

"(10) That to run the course north, the last call in the grant, the line would not reach the Santa Isabel creek; that the Santa Isabel creek could be reached by running the course N., 28 E., but in doing so the survey would conflict with an older grant in the name of Joaquin Galan. I find that the course on which the northern line of the present location is run is N., 70 E., to Santa Isabel creek, and is on what was vacant land at the time of its location as shown in the following plat: [Here follows plat.]"

Upon the facts so found, the learned special judge who tried the case concluded the grant required the approval of the intendente of the province, and that for want of such approval it was void. The court of civil appeals first held the grant valid, but upon a motion for a rehearing set aside their former judgment, and in an able and learned opinion concurred with the trial court, and declared it void. The question which first suggests itself to our minds is, was the approval of an intendente necessary to a grant of land in Mexico at the date of the alleged title in this case, to wit, in the year 1816?

The intendencias were created in New Spain by virtue of the royal ordinance for the establishment of intendentes, issued on the 4th day of December, 1786. With the exception of certain northern and eastern provinces, which were put under the rule of commandants general, Mexico was divided into 12 intendencias. Texas was at first within the excepted territory but some years afterwards was included within the intendencia of San Luis Potosi. By article 81 of the ordinance mentioned above, the intendentes are given exclusive power over the sale, composition, and distribution of the royal lands. Hence it must be conceded that, so long as that article remained in force, in the absence of some special authority emanating from the king, no lawful title could issue without the approval or confirmation of that officer. But by a decree of the cortes of the date of January 4, 1813, enacted for the express purpose of reducing the vacant and other public lands to private dominion, provision was made for the sale and distribution of such lands, and their distribution was placed under the control of the ayuntamientos of the respective municipalities, with the approval of the provincial deputations. Decrees of the Cortes, p. 56. Of the decrees passed by that body, a Mexican writer says: "The revolution of 1808 in Spain gave rise to the installation of the extraordinary cortes of Cadiz in 1811, which, dissolved in 1814, was re-established in 1820, and the laws which they enacted from the date of their installation until the 27th of September, 1821, in which the independence of Mexico was established, form likewise part of the legislation which rules it to-day." Novisimo Sala Mexicana, p. 18. In 1814...