Trevino v. Fernandez

• Decision Date: 01 January 1855
• Citation: 13 Tex. 630
• Parties: PEDRO TREVINO AND OTHERS v. ANTONIO FERNANDEZ AND OTHERS.
• Court: Texas Supreme Court

13 Tex. 630

PEDRO TREVINO AND OTHERS

v.ANTONIO FERNANDEZ AND OTHERS.

Supreme Court of Texas.

1855.

Appeal from Cameron. Action of trespass to try title, commenced August 8th, 1850, by the appellants against the appellees, to the “Agostadero de San Pedro de Carricitos,” fronting on the Rio Grande, containing eleven leagues of land. The plaintiffs claimed as the heirs of Bartolome Fernandez, by virtue of a grant made in 1789 to Bartolome and Eugenio Fernandez, brothers, alleging that Bartolome had paid all the purchase money, and that Eugenio had abandoned and relinquished all his interest to Bartolome. The defendants answered November 11th, 1850, denying all and singular, &c., then admitting the grant, and denying the abandonment or relinquishment by Eugenio, and claiming title to the one-half as the heirs of Eugenio, and pleading the judgment of the tribunal of justice of the State of Tamaulipas rendered in their favor in 1844, in pursuance of which they were judicially put in possession of the one-half of said lands. The heirships of the parties were either proved or admitted. It appeared from the testimony that for some time after the grant Bartolome and Eugenio both occupied and cultivated the said lands, claiming them as the property of both. The weight of the testimony was that, from the beginning of the present century at least, Bartolome and his heirs claimed the whole grant, and exercised exclusive control over it as proprietors thereof until 1842, when the sons of Eugenio discovered for the first time that they had any claim to the lands, and instituted proceedings in the court at Matamoros to establish their right, which proceedings resulted in a judgment in their favor, in pursuance of which they were put into actual possession, in 1844, by the process of the court. The heirs of Bartolome, however, appealed, and it did not appear that the appeal had ever been determined, the last entry that could be found being a receipt of the appellee's counsel for the papers given to the clerk of the appellate court at Victoria. From the time when the defendants were put in possession as aforesaid they continued in possession claiming one-half the land. The plaintiffs were also in possession at same time, and still continued in possession.

A jury was waived and the case submitted to the court. The court gave judgment that the defendants were not guilty of the alleged trespasses, &c., and the costs. There was a statement of the facts in evidence signed by the attorneys of the parties and by the judge as in ordinary cases.

The title covered twenty-eight pages of foolscap, much of it illegible in the original and much more unintelligible in the translation, but so far as it could be made out (and enough was legible and intelligible to show that) it was a grant by order of the royal audience at Mexico, in the ordinary form of that day, except that it showed that the grantees had previously occupied it, and that it was appraised, and then put up at sale, bringing $52.Allen & Hale, for appellants. There are, in fact, but two questions to be determined: first, are the plaintiffs, under the pleadings and proof, entitled to any portion of the land described in their petition, and secondly, to how much?

I. It is evident that if the plaintiffs have made a case which entitles them to recover any part of the land, although claiming the whole, judgment should have been rendered for them for such portion, (Davis v. Whitesides, 1 Bibb R., 510; Todd v. McGee, 2 Id., 350; Ward v. Harrison, 3 Id., 304; Gist v. Robinet, 3 Id., 2; Harrison v. Stevens, 12 Wend. R., 170; Van Alstyne v. Spraker, 13 Id., 578; Inglis v. Trustees of Sailor's Snug Harbor, 3 Peters, 182; 2 Green. Ev., Sec. 317; Scott v. Rhea, 5 Tex. R., 258,) and a portion under the prayer for general relief in our practice. (Hardy v. De Leon, 5 Tex. R., 246; Bradbury v. Williams, Galveston, 1853; Hart. Dig., art. 646.)

II. The defendants, as well as the intervenors, claiming under the same grant as the plaintiffs, cannot question its validity, nor do they attempt to do so. It is true that the answer of the defendants denies generally the allegations in the original petition; but as that petition does not set up the grant, but only a general title to the whole tract, the denial does not call the grant in question, and the answer goes on, not in a distinct plea, but uno platu, to recognize and assert the grant, and to concede that the defendants are only entitled to one-half of it. It is an elementary principle of law that a party in possession, and claiming title under a grant or other conveyance, cannot dispute its validity. (2 Green. Ev., sec. 307; Adams on Eject., 56, note 1; 2 Starkie Ev., 424, note B; Milun v. Riley, 1 Dana R., 359; McClain v. Gregg, 2 A. K. Marsh. R., 454; Denn v. Cornell, 3 Johns. Ca., 174.)

It is also admitted in the statement of facts, and appears in the evidence, that the plaintiffs and defendants claim under the same original title, and that the defendants are now in possession as heirs of Eugenio Fernandez. The grant, therefore, to Bartolome and Eugenio is not drawn in question, nor was it before the court below, and that court erred, therefore, in deciding on its character or validity. It is no part of the office of a court to determine the absolute right, nor to decide in rem in ordinary suits. It is only to adjudicate between the parties as to their relative rights, and what the parties admit it should also receive as proved. In the present case, even if the original grant were invalid, the recognition and admission of it by the court, for the purpose of determining under it the respective shares of parties, would affect no one else besides those parties immediately before it; and as they made no issue of this kind, the court ought not to have raised it.

III. But if it should be admissible for the court below, or this court, to look into the nature and validity of the original title, it is clear that it is sufficient in law to sustain the action. The judge before whom the cause was tried, although himself of this opinion, supposed he was bound, under the decision in the case of McMullen v. Hodge, (5 Tex., 34,) to reject the grant made in 1789 to the brothers Fernandez, as inchoate and imperfect, and vesting no legal title in the grantees. This conclusion rested upon two grounds: first, that the decision above mentioned was a final settlement of all questions arising as to the effect of composition grants (so called;) and secondly, that the grant in question was of similar character to those referred to under that description. We will endeavor to controvert these assumptions.

First: We do not think that the language of the court, in the case alluded to, was intended to extend to the determination of the effect or nature of composition grants generally. That was not in dispute in the case. It was conceded by the counsel on both sides that such grants merely gave a tenancy at will, (5 Tex., 37, 59,) but it was contended that the grants to the Indians did not come within this class. And the counsel also adopt without hesitation the incorrect and absurd translation given by White of the passage in the Recopilacion de Indias, (Book IV, Tit. 12, L. 15,) upon which the question turned. This court, therefore, in its remarks upon this point, assumed what the counsel had conceded to be correct, and only applied these admissions to the case before it. We may therefore, without presuming to argue against a settled opinion of the court, consider this still as an open question with the greater propriety, as it is of great importance in the settlement of land titles in the western portion of the State, and deserves a thorough investigation.

The remarks of this court as to the nature of grants made under the regulations prescribed in the Recopilacion de Indias, rest upon the translation given by Mr. White of the phrase “ censo al quitar,“” occurring in 1. 15, Tit. 12, 13, B. IV of that collection, which is rendered by him as “tenants at will,” and also upon the origin and character attributed to the tax or duty imposed upon such grants and known as media annata. It is assumed (owing undoubtedly to the mistake of the counsel) that this tax was only imposed upon feuds, vesting no absolute fee, and amounted in fact to an annual payment in the nature of rent of half the income or profits of the land, in which the grantee had thus only a bare usufructuary interest.”

The incorrectness of these premises will appear from the following considerations:

The term “ censo al quitar,“” which designates not the nature of the estate conveyed, but the mode of securing the payment of the purchase money, cannot in any sense or connection whatever imply a tenancy at will, but an annuity charged upon the land, redeemable at the will of the possessor, who agrees to pay the purchase money in this manner, with the privilege of extinguishing at any time this incumbrance by the payment of the value or amount of the annuity as determined by the laws of Spain. It is not in any way connected with a tenancy or usufructuary interest, because the only description of ” censo“ which is charged upon such an interest in land is not in the terms of the law ever ascribed as a ” censo al quitar.“ The latter term always implies a conveyance of the full dominion, giving the grantee complete and absolute power to sell, lease, convey, or in any other manner dispose of the land subject to the incumbrance. And the ” censo al quitar “ may be either a censo reservativo, or consignativo. That is, it may either be a redeemable annuity, created out of the purchase money and reserved in the sale, or one created by the loan of money or sale of other valuable articles, and charged upon land already belonging to the person assuming to pay the annuity. Both of these species of censo imply necessarily the absolute ownership of the land in which the annuity is charged. The distinction...