White v. Holliday
| Citation | 11 Tex. 606 |
| Parties | S. A. WHITE v. T. HOLLIDAY. |
| Decision Date | 01 January 1854 |
| Court | Supreme Court of Texas |
Where there was a joint colonial grant of two leagues to two individuals, on unstamped paper, with the following clause succeeding the act of possession, or title: “On this date, this petition was attached to the manuscript record to which it corresponds, and raised to the corresponding seal, which I seal for its continuance.” (Here followed a rubric, but no name nor date, unless the date of the previous act of possession be imputed.) Held, That the paper appeared to have been duly legalized.
An agent who attended to the procuring of the title to his principal, a colonist, was not disqualified from being an assisting witness, by the mere fact of agency, without further interest appearing.
To the third and fourth objections, it is a sufficient answer, that there is nothing in the colonization laws, nor is there any general principle of law, which forbade the colonist to employ the instrumentality of an agent, or attorney, in obtaining his grant; nor are we aware of any inhibition in the law, against comprising in one final title, the lands granted to two colonists. (The application and title were for two leagues to two individuals, as heads of families, on paper “raised to the corresponding seal.”)
Where the act of possession recited that the Commissioner “adjudged the land (describing it) to them” (the petitioners), and that he “put them in possession of the two sitios of land, which in their name was taken by their attorney quietly and peaceably, without any opposition whatever, and performing all the acts of true possession,” it was held, that the fee passed to the grantees, and that the title was perfect.
Actual residence in the country, previous to the making of the grant (colonial grant), has never been held necessary to the validity of the title. Such was never the construction placed upon the colonization laws. The colonists were allowed the term prescribed by law to comply with the conditions annexed to their grants, most of which have been dispensed with in reference to grants of the character of the present, thereby discharging the titles of the colonists, of such conditions, rendering them absolute, and indefeasible by reason of their non-performance. (The title, in this case, was a joint colonial grant of two leagues to two individuals, as heads of families.)
Where a colonial title was obtained through an agent, and witnesses were introduced, who testified, in substance, that they had been acquainted in the colony since before the date of the petition and title, and that they had never known the persons named as the grantees in the title; but that they could not say they knew all the persons in the colony; the persons named might have been there without their knowledge; Held, That the proof did not justify an instruction to the jury, that if the grantees never were in the colony, the grant was void; or that if they had abandoned the country, the grant was void.
It was not competent for the plaintiff to impeach the title, on the ground that it was forfeited, by reason of the grantee's having left the country to avoid a participation in the struggle for independence; or by reason of the non-performance of conditions subsequent, even upon the supposition that those conditions had not been discharged. Besides, the evidence did not authorize the instructions, etc.
Where the title of the defendant (or plaintiff) is “shown, by documentary evidence, to be perfect and valid,” being the elder title, it follows that the land embraced in it was not subject to location; and “consequently the rulings of the Court upon the admissibility of the plaintiff's (or defendant's), evidence of title, are immaterial.”
Appeal from Victoria. The title relied on by defendant was as follows: (Paper without usual stamp.)
“Mr. Commissioner: The citizen Santiago Serna, as attorney by law of my son-in-law (hijo politico), citizen Juan Flores and of the citizen Miguel Menchaca, according to the verbal authority which they conferred on me before you to take one sitio of land as a settler in this colony, before you in the most proper manner of right, would appear and say that having obtained permission from the Empresarios, that they should be admitted in this colony, I pray you in their name, that you may be pleased to order the adjudication to each as married men, the sitio of pasture land which pertains to them. It is justice that I ask, I swear, etc.
+-----------------------------------------+
¦Refugio, 8th Oct., 1834.¦SANTIAGO SERNA.”¦
+-----------------------------------------+
“Refugio, 12th October, 1834.
This petition will pass to the Empresarios, that they may inform me in relation to it. I provide, order, and sign with those of my assistance.
+-----------------------------------------------+
¦I certify, ¦JOSE JESUS DE VADAURI. ¦
+---------------------+-------------------------¦
¦Assisting, JUAN DUNN,¦Assisting ______ ______.”¦
+-----------------------------------------------+
“Refugio, October 18th, 1834.
In regard to the admission of the citizens Juan Flores and Miguel Menchaca in this colony, from this time, we give our consent as required by the law.
SANTIAGO POWER.”
“In the same place, and on the 20th day of the current month and year, I, said Commissioner, in consequence of my previous order in the foregoing decree and consent given by the Empresarios, in regard to the admission of the citizens Juan Flores and Miguel Menchaca, adjudge to them in form two sitios of land for pasture which they have prayed for, including two labors of temporal land, which, according to the surveys made by one of the Surveyors appointed, are composed of 4000 Mexican varas front upon the San Antonio river, on the left side, or margin, and running back on the upper side 12,376 varas, and on the lower side 11,310 varas, bounded on the North by lands of the citizens Galvan, McDonough and Gonzales, on the west by Juan Baptiste Lideck, on the south by the aforesaid river, and on the east by lands of the Gorros. In virtue of which and in exercise of my authority, and in the name of the Supreme powers of the Mexican nation and of the State, I put them in possession of the two sitios of land, which, in their name, was taken by their attorney quietly and peaceably, without any opposition whatever, and performing all the acts of true possession, understanding that the grantees shall construct fixed boundaries, observing in addition the existing laws of colonization, with which understanding he signs with me and those of my assistance, of which I certify.
+-------------------------------------------------+
¦JOSE JESUS DE VADAURI. ¦SANTIAGO SERNA. ¦
+--------------------------+----------------------¦
¦Assisting, SANTIAGO SERNA.¦Assisting, JUAN DUNN.”¦
+-------------------------------------------------+
“On this date, this petition was attached to the manuscript record to which it corresponds, on this leaf of the present paper, and raised to the corresponding seal, which I seal for its continuance.” (Here followed a rubric, but no name nor date, unless the date of the previous act of possession be imputed.)
The above was a certified copy, dated April 7th, 1852, from the General Land Office, of the original on file there; and objection to its being a copy, instead of the original, was waived.
In the town of St. John the Baptist and Purita de Lampasas, on the 28th of March, 1835, Flores and Menchaca, by separate instruments, reciting that they were inhabitants of San Beneventura in the State of Coahuila and Texas, authorized the said Jose Jesus Vadauri (the Commissioner of that name?) to sell the said lands, etc. On the 5th July, 1838, Jose Jesus Vadauri sold the said land by virtue of the power aforesaid to the said Santiago Serna, for their ““just and lawful value.” The chain of transfer was complete, down to the defendant's lessor.
The plaintiff offered to read in evidence what purported to be a certified copy in Spanish, from the county records of Refugio, of the same title, recorded there from a certified copy from the General Land Office, made February 20th, 1840; but it was excluded on the ground that it was a copy of a copy. There appeared to be only one assisting witness to this instrument of possession; and the clause as to the legalization of the paper was not on it.
The plaintiff asked the Court to instruct the jury:
which were refused.
The defendant asked the Court to instruct the jury, “That the title to Menchaca and Flores was a perfect title, and vested the fee in the grantees, unless fraudulenty obtained; that it was not necessary to prove a compliance with the conditions; that actual residence in the colony previous to the grant was not necessary; and that they had six years after the title issued, to occupy and cultivate the land; that abandonment of the country, which operated as forfeiture of land, was a leaving of the country by the grantee, and a domiciliating of himself in a foreign State and country; that fraud is not to be presumed, but must be proved; and that a public officer, in the discharge of a public act, within the pale of his authority, is presumed to have done his duty.” All which were given.
This statement must be read in connection with the statement in the opinion of the Court.
S. A. White, for appellant. I. The first objection is the want of a stamp. (Dallam, 131, Sec. 9; 1 White, 427, 514; Decrees 16th Oct., 1823; Phillips, Ev., 385; Story, Cont. Sec. 260, 315, 631.)
The second objection is, that the grant has but one assisting witness. (Dallam, 133, Sec. 27; 1 White, 275.) There...
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