State v. Cuellar

• Decision Date: 01 January 1877
• Citation: 47 Tex. 295
• Parties: THE STATE OF TEXAS v. FRANCISCO CUELLAR.
• Court: Texas Supreme Court

47 Tex. 295

THE STATE OF TEXAS

v.FRANCISCO CUELLAR.

Supreme Court of Texas.

1877.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

The facts are given in the opinion.

This was one of a number of suits involving land, brought under “An act to ascertain and adjudicate certain claims for land against the State, situated between the Nueces and Rio Grande rivers,” approved August 15, 1870. (General Laws, Called Session, 1870, p. 201; Paschal's Dig., art. 7068.) Section one of said act is as follows:

“SEC. 1. That any person who may be the original grantee, heir, or legal assignee of any grant of land emanating from the Spanish or Mexican Governments, and having its origin previous to the nineteenth day of December, A. D. 1836, and situated between the Nueces and Rio Grande rivers, and below a line drawn from the northern boundary of Webb county to the mouth of the Moros creek, emptying into the Nueces river, may file a petition to the District Court of the county of Travis, or where the capital of the State may be; which petition shall be filed at least ten days before the time of holding of said District Court, and shall contain a full description of the land claimed, setting forth particularly its situation, boundaries, and extent; and shall accompany such petition with the titles, or evidences of title, or right under which the same is held or claimed; and the said District Court shall investigate the same in accordance with the laws of nations, the laws, usages, and customs of the Government from which the claim is derived, and the principles of equity, so far as the same are applicable, and shall give judgment for the confirmation of the same when the title is perfect, or when imperfect, when the same would have been matured into a perfect title under the laws, usages, and customs of the Government under which it originated, had its sovereignty over the same not passed to, and been vested in the Republic of Texas: Provided, Said title or right was originally founded in good faith, and provided that no service of such petition shall be necessary.”

The facts involved in the case, brought under this act, are manifest from the opinion.

George Clark, Attorney General, for the State.

Peeler & Fisher, also for the State.

James H. Bell, and Chandler, Carleton & Robertson, for appellees.

ROBERTS, CHIEF JUSTICE.

The plaintiff, Francisco Cuellar, on behalf of himself and other heirs, brings this suit, under the act of the Legislature of the State of Texas, of the 15th of August, 1870, to obtain confirmation of the title to a tract of land of 34 labors, on which is situated the town of Carisso, running 1,700 varas on the Rio Grande, (east bank,) and 20,000 varas back therefrom, in Zapata county. This land is alleged to be a portion granted to their ancestor, Jacinto de Cuellar, in fee simple, as one of the first settlers of the town of Ravilla, (now Guerrero,) on the west bank of said river, in Tamaulipas, Mexico, by a royal commission, which at that place, and in all the due forms of law, in 1767, and with full authority, founded and laid off the said town, with its defined extent and surrounding territorial jurisdiction; divided the lands thereof, by surveys, into lots, and portions for pasture lands, and provided for their distribution and allotment to the registered and designated settlers, one of whom was said Jacinto de Cuellar, to whom was granted, in full possession and right of property, one porcion, No. 36, which has been in the possession of him and his heirs from the date of the grant to the present time.

Filed with the petition was the following document, as the title under which the plaintiffs claim the said land, to wit:

+-----------------------------------------------------------------+
                ¦             ¦(¦NATIONAL COAT OF ARMS¦)¦                         ¦
                +-------------+-+---------------------+-+-------------------------¦
                ¦“FOURTH SEAL,¦(¦FOR THE              ¦)¦Twelve and a half Cents.”¦
                +-------------+-+---------------------+-+-------------------------¦
                ¦             ¦(¦Years 1848 and 1849. ¦)¦                         ¦
                +-----------------------------------------------------------------+
                

“Alejo Gutierez, only constitutional alcalde of the city and its jurisdiction, &c., I hereby certify, according to law, that in the book wherein appears the surveys and possessions of pasture lands that the royal commission (General Viceta) adjudicated to the first settlers of the city, on page 18, in front, is found the survey, marked (No. 36 is an exact copy) as follows:

‘In the same direction, and on the same day, the thirteenth of July, 1767, along the banks of the river were measured one thousand and seven hundred Mexican varas, thirty-four cordels, with an equal number at the opposite end, and twenty thousand for the side lines, completed the porcion. The same numbered, it was applied for by Dr. Joaquin Cuellar, to whom it was granted.’

In the same manner, upon page 6, front and back of the Book of Possession, is found the act of possession, under No. 29, that explains, as follows:

‘In succession, they passed to the point named Las Animas, under which appellation are included three porciones of land, the first belonging to Jacinto de Cuellar, the second to Dr. Joaquin de Cuellar, and the third to Dr. Bartolome de Cuellar, where the same demonstrations were made as before, when said Jacinto presented himself, and represented the proper persons of his father and brother, in conjunction with his own, and to him was given possession in the name of all, and he received the same in proper conformity with the rest, upon the conditions expressed, the cited witnesses being present.’

And, upon the petition of Antonio Cuellar Guerretz, and for the uses that may accrue, the foregoing copies, duly certified, were delivered to him, duly corrected, and compared with the original that exists in the archives of this tribunal in my charge, as remitted to me.

In evidence whereof, I sign my name, in the city of Guerrero, on the 21st day of the month of November, one thousand eight hundred and forty-eight, acting with attesting witnesses, in default of a notary public, of which there is none, according to law. To which I certify.

ALEJO GUTIEREZ. [RUBRIC.]

Attesting witnesses:

+--------------------------------+
                ¦JOSE MCG. CUELLAR,¦[RUBRIC.]    ¦
                +------------------+-------------¦
                ¦EDWARDO DAVILA.”  ¦[RUBRIC.]a1  ¦
                +--------------------------------+
                

The State, by counsel, moved to dismiss, and excepted to the petition, and excepted to the evidence adduced on the trial by plaintiffs, presenting every objection to both the petition and evidence which it may be necessary to refer to in deciding this case.

The court, upon the trial, gave judgment for the plaintiffs, and the State, by its counsel, took an appeal to this court.

The general terms of the law authorizing this suit, with its requisites and objects, and the construction given to it by this court, may be found in the opinion delivered in the case of the State v. Salvador Cardenas, ante, 250, and need not be here repeated.

Without repeating the various objections made to the petition and title filed, and to the evidence of plaintiffs, it will suffice to discuss the matters to which they relate, that are deemed material to be considered in determining the case.

It was objected that neither the petition, nor the alleged title filed with it, contained a sufficient description of the land to meet the requirements of the law. The description given is substantially that which is given herein previously in the statement of the case, and is certainly deficient in not designating some fixed object or adjoining boundaries of other tracts, so as to arrive at some certainty in rendering a judgment, as a legal guide to the surveyor in making the survey according to law.

It is objected that the instrument filed is wanting in the requisites of a title in form and substance, and because it purports to have been issued by an officer in a foreign Government, when the land was situated within the State of Texas. This objection would be a good one, if it were necessary to file a perfect title, or evidences of right, which could be made to subserve the purpose of a title, perfect or imperfect. In connection with the averments of the petition, it may be held to sufficiently indicate the title relied upon, being the part of it which relates to the alleged ancestor of plaintiffs, in the authentic act founding the town of Ravilla.

It is to be noticed, however, that there is an objectionable discrepancy, apparent at least, in the identification of the land--that sued for in the petition being a portion No. 36, and that to which reference is made in the paper title, in connection with Jacinto de Cuellar, is portion No. 29--which discrepancy is not explained, either by any allegations of the petition or by the proof on the trial.

The plaintiffs sought to establish a title to the land by introducing in evidence on the trial the written document previously described as the one filed with the petition, signed by Alejo Gutierez, alcalde of Guerrero, with attesting witnesses, in 1848, supported by the testimony of witnesses proving the heirship of plaintiffs to the estate of Jacinto de Cuellar, by tradition; long-continued possession of the land; the official capacity of said Alejo Gutierez at the time of the signing of the document, and the genuineness of his and the attesting witnesses' signatures, and rubrics thereto attached, with the following additional statements in relation to the same, by Andreas Garcia, and other witnesses, to wit: “That he knows, from having seen the same in the public archives of the city of Guerrero, that the said grant of...