Williams v. Conger

• Decision Date: 01 January 1878
• Citation: 49 Tex. 582
• Parties: DAVID H. WILLIAMS v. N. H. CONGER ET AL.
• Court: Texas Supreme Court

49 Tex. 582

DAVID H. WILLIAMS

v.N. H. CONGER ET AL.

Supreme Court of Texas.

1878.

APPEAL from McLennan. Tried below before the Hon. X. B. Saunders.

David H. Williams instituted suit, in the District Court of McLennan county, on the 11th day of September, 1873, by petition in the ordinary form of action of trespass to try title, for eleven leagues of land, situated in McLennan county, known as the Miguel Rabago grant.

The defendants named therein were Norman H. Conger, Edward D. Conger, Charles M. Harvey, W. H. Smith, W. C. Tolbert, Thomas Harrison, and James Sadler. The defendants pleaded not guilty, on the 11th day of December, 1873.

January, 1876, defendants filed an amended answer, in which they pleaded the statute of limitation of three, five, and ten years, and that they have held possession of the land in controversy, under title and color of title, for more than twenty years, holding open and notorious possession of the same, cultivating, paying taxes, leasing, and selling the same; and that all their leases and sales have been spread on the records of the county; that during all this time, the plaintiff, nor his vendors, under whom he claims, have paid, nor offered to pay, taxes on the same, nor exercised any acts of ownership over the same, nor set up any claim, until the institution of this suit; that they were guilty of laches, and that the demand was stale.

Plaintiff claimed the land in controversy by conveyance from Antonio Cortez and Rosa M. Cortez, by deed dated the 26th day of July, A. D. 1873, and, as subsequently shown, that Mrs. Cortez, before her intermarriage with Antonio Cortez, was widow of Miguel Rabago, who died in 1848, leaving one child surviving, which died in 1851, aged about 11 years; that Mrs. Cortez was married to Antonio Cortez in 1849, and that they lived together until after the commencement of this suit as husband and wife. She and Miguel Rabago were married in 1825.

Defendants claimed by letter of attorney from Miguel Rabago to Victor Blanco; conveyance from Rabago by Victor Blanco to Gilluermo Lagurenne, executed before Bounilla, a notary public in the city of Mexico, on the 25th of May, 1836; a power of attorney from Lagurenne to Prioland, dated the 10th day of January, 1837, passed before Francisco Madriago, a notary public of the city of Mexico; a conveyance from Lagurenne, by attorney Prioland, to G. L. Hammekin, passed before Louis T. Care, a notary public of the city of New Orleans, dated the 15th day of February, 1837; a conveyance by Hammekin to Louis S. Hargous for one-half the grant, of date November 25, 1858; a conveyance from Hammekin to William M. Goodrich for the remaining half, April 24, 1850; and from Hargous and Goodrich, by Thomas Harrison, acting under powers of attorney from them, to defendants, of date February 5, 1873.

On the trial, defendants offered in evidence a letter power of attorney as an ancient instrument from Rabago to Victor Blanco, bearing date June 8, 1832. In connection therewith, and as showing that the document came from its proper custody, the following items in evidence were relied on:

1. Defendants had in their possession, and had furnished it to the plaintiff for use on the trial, the original testimonio of title to the eleven-league grant in controversy, and which was also offered in evidence by them.

2. The letter power of attorney, which is dated June 8, 1832, in terms says it hands to Victor Blanco the testimonio of the eleven leagues, (meaning the permit,) and authorizes him, by himself, or through some one in whom he had confidence, to take possession of said land; and further authorizes him alone to sell, exchange, or alienate it, as he might see fit.

3. Indorsed on this letter power is an instrument purporting to be signed by Victor Blanco, authorizing Samuel May Williams to take possession of the land as his agent and attorney. This indorsement bears date April 3, 1833.

4. Hammekin testified that he knew the signature of Victor Blanco, and that the signature to the indorsement is Blanco's genuine signature.

5. On December 3, 1833, (as shown by the papers in evidence constituting the title to the land in suit,) Samuel May Williams presented the permit or concession to the proper officer, asking possession of the land.

6. On January 13, 1834, Williams, as attorney for Rabago, applied for and obtained the final title.

7. It was proved by M. E. Kleburg that he found this paper (the letter power of attorney) in April, 1876, in a very old trunk which Judge W. H. Williams, a son of Samuel May Williams, brought into his office, saying that it contained his father's old papers, and requesting him (witness) to search for the paper; that the paper when found “seems to be an old paper; it is yellow, not blotted, contains no erasures or interlineations, and its age seems to correspond with its date.” Witness found in the trunk other letters purporting to be from Blanco to Williams.

8. It was proved by W. H. Williams, county judge of Galveston county, that his father, Samuel May Williams, came to Texas in 1822, and died in 1858; that witness, in 1876, was forty-three years old; that the trunk spoken of by Kleburg is his (witness') father's trunk, and it appears to be ten or fifteen years older than witness is; that he delivered the trunk to Kleburg, as stated by him; that the trunk was delivered by witness' father to his mother, and by his mother to him; witness is one of his father's executors, and as such has exclusive possession of his father's papers, and has had the trunk since a short time after his father's death; that the trunk was never allowed to be opened since the “runaway scrape” in 1836, except at his father's death, and at one other time, when the La Vega title papers were sought; that the letter power of attorney has on the back of it an indorsement showing what it is, in his father's handwriting; that the letters purporting to be from Blanco to his (witness') father have similar indorsements on them in his father's handwriting.

9. It was proved by Hammekin that he had an official copy of this letter power in 1837, (the year he purchased,) and gave it to Rose, the agent of witness. Witness produced a true copy of the copy he had thus obtained and handed to Rose.

10. This copy produced by Hammekin was an exact copy of the original letter power, the only difference being that some words abbreviated in the original are written in full in the copy produced by Hammekin.

11. The defendants proved the loss and search for the following original title papers: An act of sale from Rabago, by Blanco, to Lagurenne; power of attorney from Lagurenne to Prioland; deed from Prioland to Hammekin.

The same testimony, with other facts appearing on the face of the title papers in evidence, was insisted on as showing that the letter power of attorney had been acted upon. The items of proof to that point were as follows:

1. The letter of attorney was found in Samuel M. Williams' old trunk, as testified by Kleburg.

2. It has an indorsement on it, with Blanco's genuine signature to it, authorizing Williams to take possession of the land.

3. Williams applied for possession, and for final title to the land, and the final title, &c., was delivered to him, as Rabago's attorney.

4. Hammekin bought the land February 16, 1837, and had in his possession what he considered a complete chain of title to the land, including an official copy of this power of attorney, which is an exact copy of the original produced from Williams' trunk.

5. Goodrich owned one-half the land, by deed from Hammekin, from 1850 to 1861; and in May, 1854, not long after the country began to settle, Hughes, acting for Rose, the agent of Goodrich, leased part of the land to Graham; and this lease was transferred to Landon in October, 1854.

6. Thomas Harrison, as agent of Goodrich and Hargous, the latter owning the other half, sold parts of the land to some twenty-five persons, putting them in possession, from 1854 to 1859, and from 1867 to 1868 under quit-claim titles, except that since 1867 he gave warranties to two or three of the purchasers.

7. Harrison was spoken to by the parties under whom defendants claim in 1855 and 1856, and he has acted for them, as their agent for this Rabago grant, from that time up to the sale to the defendant.

8. It was in evidence, by George B. Erath, that Hughes, the agent of Goodrich and Hammekin, was on the ground in 1854, and employed witness as surveyor to establish the lines of the grant, which he partially did; that he thinks Hughes made arrangements with G. W. Sheek to hold the land for Goodrich and Hargous, and that he (Sheek) remained on it from that time until after the war; that Goodrich and Hargous compromised with persons claiming the Crouch and Neal leagues, which are embraced in the grant; witness surveyed off and divided these leagues in 1857 and 1858; witness was employed by Rose and Hammekin to divide the land between the parties, and has probably made several hundred surveys on the land; thinks that Graham went on Neal league early in 1854, and Landon in the same year, and that Earle succeeded Landon in his possession; witness resided within eight miles of the land; did not see it during the war, but did before and after, and has never seen it vacant; that from the time Hughes came here, in 1854, Rose, Hammekin, and Harrison have been claiming the eleven leagues in question, controlling the same and exercising ownership over it; that on these eleven leagues are many school-houses, gins, churches, and it is densely populated by persons holding under the title had by the defendants.

9. It was proved by Kissick that Sheek was not on a colonist title; that witness went on a colonist title in 1850, and compromised with Rose in 1856, giving one-half for the other; that Brano went on the land in 1852 or 1853, on a preëmption, but afterwards gave that up in favor of the eleven-league owners.

10. The docket of the...