Wheeler v. Moody

• Decision Date: 01 January 1853
• Citation: 9 Tex. 372
• Parties: WHEELER v. MOODY.
• Court: Texas Supreme Court

9 Tex. 372

WHEELER

v.MOODY.

Supreme Court of Texas.

1853.

The existence of Martin De Leon's colonial contract, and that Fernando De Leon was the commissioner of that colony, are facts so notorious in the history of the country and so fully recognized and established in its legislative and judicial proceedings as to have become matters of judicial cognizance.

The protocol, or first original, would unquestionably be primary evidence. As between the testimonio and land office copy, the former, on general principles, would be the best evidence. The latter would be but secondary; and in order to its admission it would be necessary for the party offering it to account for the non-production of the testimonio. But since the statute has elevated the land-office copy to the same grade as the original, it is no longer secondary but is primary evidence, and consequently is admissible without producing or accounting for the non-production of the testimonio. But, quere? Under particular circumstances of suspicion. (Note 58.)

In order to constitute an abandonment of the country, within the intent of the colonization laws of Coahuila and Texas, the removal must have been voluntary.

Conditions subsequent, (annexed to original titles,) which were inconsistent with our institutions, such as the payment of a certain sum to be applied to the erection of churches, were discharged by force of the change of government effected by the Revolution.

The 10th section of the general provisions of the Constitution of the Republic dispensed with the performance of the condition of settlement annexed to titles for town lots.

Possession, to be effectual either to prevent a recovery or to vest a right under the statute of limitations, must be an actual possession, attended with a manifest intention to hold and continue it. It must be, in the language of the authorities, an actual, continued, adverse, and exclusive possession for the space of time required by the statute. It need not be continued by the same person; but when held by different persons, it must be shown that a privity existed between them.

It is proper to refuse to give instructions which are based upon assumptions of fact either contrary to or not warranted by the evidence, without regard to whether they are correct as abstract propositions or not. (Note 59.)

Appeal from Victoria. This was an action brought by the appellee against the appellant to recover a town lot in the town of Victoria. The plaintiff claimed under a title issued by Fernando de Leon, as commissioner of De Leon's colony, to Eugenio Benavidas, in 1835. The defendant pleaded “not guilty.” He also claimed title in himself derived from the government of the Republic of Texas through the corporation of the town of Victoria. He further pleaded the statute of limitations of three and ten years.

The plaintiff gave in evidence a translated copy from the General Land Office of the original title issued by the commissioner De Leon to Benavidas, bearing date on the 17th day of March, 1835; to the admission of which the defendant objected on the ground that there was no evidence of the authority of Fernando De Leon to issue titles to land, and on the further ground that there was no evidence that a testimonio had been issued--the defendant objecting that the copy was not admissible without proof of the loss of the testimonio. The court overruled the objection. The title introduced purported to have been issued conformably to the provisions of the colonization law of the 24th of March, 1825, and the instructions of the 4th of September, 1827. Annexed to it were the conditions of occupancy and cultivation, and the payment of one dollar, “by way of acknowledgement, as provided in the 36th article of the aforesaid law of colonization.”

The plaintiff also gave in evidence a conveyance from Benavidas and wife to himself, and proved the identity of the lot. He further proved that Benavidas was a colonist in De Leon's colony, the head of a family, and a resident in Victoria at the date of the grant, and until June 1836; he never lived upon or improved the lot in question; that he and his family were among those who were sent to New Orleans by the military authorities of the country in June, 1836; that he went to Louisiana against his will, and did not return until in 1848, since which time he has resided in that county.

The defendant gave in evidence a deed to himself to the lot, from the town of Victoria, dated June 23d, 1847. He proved that, immediately after the date of this deed, he erected a house upon the lot in question, which was generally occupied by his tenants until he sold it to one Rosell, on the 6th day of April, 1850. Rosell in a few days thereafter, in the same month, removed the house off the lot. There was no inclosure or other improvements made upon the lot. The defendant further proved that one Hicks, claiming by deed from the town, built a house on the lot in 1840, which remained there three on four years; that Hicks' house was removed and the lot was uninclosed and unoccupied until the defendant built upon it in 1847.

At the request of the plaintiff the court instructed the jury that if the plaintiff vendor, Benavidas, did not voluntarily abandon the country his title was good without showing a compliance with the conditions annexed to his grant; that the three years' possession, necessary to bar the plaintiff's right of action, must have been an actual, visible, and notorious occupation of the land in controversy, commenced and continued adversely to the plaintiff for the period of three years under a title or color of title; and that it was incumbent on the defendant to prove the fact of such adverse possession; that the mere assertion of a claim to the land is not such possession; and that the defendant cannot attach his possession to that of others having no privity of estate with him, so as thus to make out the period necessary to bar the right of action.

The defendant asked the following instructions, which the court refused:

That if the defendant did not intend to abandon the possession when he sold his house, and this was generally known, his possession was continued; that an actual possession commenced, continues until there is some evidence of an intention to abandon it; and that the fact that a party who had been in the actual possession left the premises and was not actually upon the land is not conclusive evidence of his intention to abandon the possession.

There was a verdict and judgment for the plaintiff; a motion for a new trial overruled, and the defendant appealed.

A. S. Cunningham, for appellant.

A. H. Phillips, for appellee.

WHEELER, J.

The grounds relied on for a reversal of the judgment are--

1st. The admission of the plaintiff's evidence of title.

2d. The instructions of the court on the subject of abandonment of the country, and proof of performance of the conditions of the grant by the original grantee, under whom the plaintiff claimed.

3d. The instructions of the court and...