Swift v. Herrera
| Citation | 9 Tex. 263 |
| Parties | SWIFT v. HERRERA. |
| Decision Date | 01 January 1852 |
| Court | Supreme Court of Texas |
Where the defendant, who located in 1849, alleged that the person under whom the plaintiff claimed never did live upon, cultivate, nor improve the land as required by law, and that he afterwards abandoned the country to avoid a participation in the struggle for independence, whereby said land reverted to the government and became forfeited, which allegations had been stricken out on motion of the plaintiff, the court said: That individuals cannot, since the adoption of the State Constitution, by location, assert any right to lands previously granted on the grounds simply of forfeiture, was fully decided in the case of Hancock v. McKinney, and the principles of that decision are conclusive in support of the ruling of the court now under consideration. (Note 44.)
A certificate by the translator in the General Land Office under his hand that a document is a correct translation of the original on file in that office, accompanied by the certificate of the commissioner, under his hand and seal of the department, that “E. Sterling C. Robertson, whose name is signed above, is the translator and recorder of Spanish deeds in this office, bonded and sworn,” is sufficient. (Note 45.)
It is the province of the court and not of the jury to determine the legal effect of a grant. (Note 46.)
Where a concession to a meritorious, native inhabitant of a frontier town, over forty years of age, purported to have in view the 12th article of decree 128, and yet directed the officer who should put the grantee in possession to classify the land, to show that which he must pay the State, for which payment the rights designated in the 22d article of the law of 1825 were conceded to him, and the commissioner who put him in possession, after classifying the land, declared that he was, by virtue of the 12th article of decree 128, exempted from making any payment or acknowledgment to the State, the court said: The Governor had no authority, under the facts of this case, to impose as a condition of the grant the payment of any dues. The assumption of power in imposing such a condition was unwarrantable. The grant itself (the concession) was issued by competent authority in the legitimate exercise of power, and is not vitiated by a condition which, in contemplation of law, is a nullity. The commissioner did not exceed his power in failing to embody such condition in the title. (Note 47.)
Where a concession in 1831 conceded to the petitioner “the sitio and labor which he solicits, in the place he has designated or in that which may best suit him, after the designation of the commissioner of the general supreme government, of a sufficiency for the payment of that which the State is indebted to the federation,” and the petition of the grantee, founded thereon, to the commissioner, for the corresponding title, stated that to wait so long would subject him to many inconveniences, and as he believed the probability very uncertain that the said general commissioner would select the same land that he claimed, because it was in an unimportant place, wherefore he prayed the commissioner that of his powers he would grant him the said sitio and labor, and he would receive it and hold it with the same condition placed upon it by the supreme government, and thereupon the commissioner extended the title, expressly stipulating therein the condition aforesaid: Held, That it was a perfect, as contradistinguished from an inchoate title, and that it was discharged of the aforesaid condition by the revolution.
Appeal from Guadaloupe. Action of trespass to try title by Herrera against Swift.
Swift denied all and singular, &c.; set up title in himself by virtue of locations made in 1849, alleging that the pretended grant to Mansola, under which the plaintiff claimed, was void; that no concession was ever made by the Governor as is stated in said title; that no report of the ayuntamiento was had as was pretended to be set forth in said title; that the officer pretending to grant the same was wholly without authority, and that he withheld the original and never did transmit the same to the political chief as was pretended; that at the time said grant was made or purported to have been made there was no law authorizing grants of that character; that the same was fraudulent in this that it sought to grant land to a new settler under the 22d section of the colonization law, when in truth the applicant was only entitled to land under the 24th section as a purchaser; that no legal survey was ever made of said land; that the Council of State of Coahuila and Texas never ratified and approved said grant, nor had the government of the Republic or State of Texas since done so, wherefore said grant or pretended grant was a mere inchoate title; that, even if said grant conveyed any title or interest to Antonio Mansola, the pretended grantee, which was denied, said Antonio never did cultivate, live upon, nor improve the same as required by law, and that he afterwards abandoned the country to avoid a participation in the struggle for independence, during the war between Mexico and Texas, whereby said land reverted to the government and became forfeited; that defendant, having strong reasons to suspect the fairness and genuineness of said original grant, requires the production of the same; he denied that the same was genuine, and denied that the copy among the archives of the Land Office in Austin was written on strong paper of the right kind.
On motion of the plaintiff the court struck out those parts of the defendant's answer which set up abandonment of the country by Mansola to avoid a participation in the struggle for independence and failure to occupy and cultivate.
There was a verdict and judgment for the plaintiff. Motion for new trial overruled. There was a bill of exceptions, as follows:
Be it remembered, &c., the plaintiff, to support his claim, offered in evidence the document marked A, purporting to be a translation of an original document existing in the Land Office at Austin, and certified by E. Sterling C. Robertson to be a correct translation of the original, and with certificate of the Commissioner of General Land Office; to the introduction of which document as evidence the defendant objected, but which objection the court overruled, & c.
Document A was as follows:
Third Seal. Two bitts.
Qualified by the State of Coahuila and Texas for the term of 1828 and '29, '30 and '31.
MR. COMMISSIONER: Anastacio Mansola, a native of San Fernando de Bexar, and a resident therein to date, before you, in the most proper form of proceeding, would represent that the supreme government of the State, by decree of 12th April of the present year, thought proper to grant to me one sitio of land and one labor, which I asked, as being more than 40 years, availing myself of the provisions of the 12th article of the decree number 128 of the same State, as appears by the document of concession, which I exhibit on three leaves, by which it will also be seen that notwithstanding I asked for one sitio of land more, under the character of a settler, having conceded to me only the sitio and labor aforesaid, and then with the condition that they shall be taken after those are designated by the commissioner of the general government for the payment of that which this State is indebted to the federation. As it desires me to wait so long a time, it will subject me to many inconveniences, and as I believe the probability very uncertain that the said general commissioner will select the same land that I claim, because it is in an unimportant place, I pray you in me of your powers you may be pleased to grant me the said sitio and labor, and I agree to receive it and hold it with the same condition placed on it by the supreme government. Gonzales, 16th August, 1831.
At the request of Anastacio Mansola, by not knowing how to write, I have signed.
JOSE MARIA SALINAS.
GONZALES, 27 th August, 1831.
By being presented and admitted on the terms which the present document shows, I have attached in continuation the document of concession included, on three leaves, to the end that, in all time, it may have the due effect to the empresario, citizen Green De Witt, that, in view of the document, he may inform me in writing if the land claimed by the party interested is entirely vacant and included in the demarkation of this colony, as also if there is any inconvenience in granting to him the aforesaid land, I, Jose Antonio Navarro, special commissioner of the supreme government of the State of Coahuila and Texas for the partition and possession of vacant lands in this colony contracted with the supreme government by the empresario Green De Witt, by this act thus I decree, order, and sign, with two witnesses assisting, this day of the date, which I certify.
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