Wood v. Welder

• Decision Date: 01 January 1874
• Citation: 42 Tex. 396
• Parties: JOHN H. WOOD v. JOHN WELDER.
• Court: Texas Supreme Court

42 Tex. 396

JOHN H. WOOD

v.JOHN WELDER.

Supreme Court of Texas.

1874.

APPEAL from Nueces. Tried below before the Hon. T. C Barden.

Lovenskiold & McCampbell and Pat. O'Docharty, for appellant.

The grant of five and one-half leagues of land, relied on by John Welder, was part of an eleven league grant to Power and Hewitson, located within the ten littoral leagues of the coast, without the consent of the executive of the General Government of Mexico. This grant has been passed upon so repeatedly by this court, that it would appear at this day to be unnecessary to produce authorities to prove its nullity. (Sarah D. Smith v. Tomasa Power, executrix, 23 Texas, 30;Plummer v. Tomasa Power et al., 29 Texas, 6;Lambert et al. v. Weir, 27 Texas, 359; 24 Howard, 434; 26 Texas, 180.

In support of the fourth assignment, John Welder, for the purpose of sustaining his plea of five years' limitation, offered as a “recorded deed” a testimonio of this grant, which appears to have been placed upon the records of Refugio county without authentication, and was allowed by the court, notwithstanding the objection of appellant, to read a copy from said record, without accounting in any manner, as required by law, for the absence of the original testimonio.

The copy from said record was not filed previous to the trial, and no notice was given of the filing, as by statute required. This testimonio bears no evidence of having been proven up; it is not even marked filed for record--only bears the mark, “Recorded February 14th, 1840,” not even signed by the clerk.

It is believed that it was recorded in violation of the Act of 1839 (Paschal's Digest, Article 4974), or Act of February 5th, A. D. 1840 (Paschal's Digest, Article 4975). The evidence upon which it was admitted to record should form part of the record and be indorsed on the grant. A paper acquires no authenticity from the fact of its having been placed upon the records, if it was not properly authenticated for registration and recorded in the manner pointed out by the statute (36 Texas, 268;26 Texas, 193). It certainly cannot be considered a deed duly registered, as required by law, and should have been excluded from the jury.

To avail of limitation under Article 4623, Paschal's Digest, “Like peaceable possession” is taken to mean an actual, visible, continued, adverse, and exclusive possession. There must be an actual occupation of the premises, cultivating and using the same, and paying taxes under deed or deeds duly registered. Now, unless appellee has shown by evidence the concurrence of all these requisites of this article, then the instructions given in sixth and eighth assignments were erroneous, and those refused in seventh assignment were proper. In Wofford v. McKenna, 23 Texas, 43, it is held “that the statute intends an instrument which is really and in fact a deed, possessing all the essential legal requisites to constitute it such in law, it must be an instrument by its own terms, or with such aid as the law requires, assuming and purporting to operate as a conveyance. Not that it shall proceed from a party having title, or must actually convey title to the land; but it must have all the constituent parts, tested by itself, of a good and perfect deed.”

The grant in question was located within the border leagues of the coast, so appears upon its face, and was so admitted on the trial; it did not have the consent of the Federal Executive of Mexico, and the answer did not allege that consent, and no proof was offered. And in the case of Smith v. Power, 14 Texas, 146, upon the same title, or a part thereof, the Supreme Court say: “The consent of the Federal Executive of Mexico was a condition precedent to the making of the grant in this case.”“Wanting that consent, it was made without the authority of law, and was consequently void.” And again, in Smith v. Power, 23 Texas, 34, the court say: “We are of opinion that it cannot (this grant) constitute the basis or a link in a chain of transfer of title from or under the sovereignty of the soil; and consequently, that it is not title, or color of title, within the meaning of the law.”

Tested by these decisions, we feel authorized by the highest power in the State in the position that this grant was not a deed, tested by itself, as required in Article 4623, Paschal's Digest, and should not have been admitted, as such, to sustain five years' limitation under said article.

But again, the grant was not “duly registered,” as required by Act of 1839 (Paschal's Digest, Article 4974), or Act of 5th February, 1840 (Paschal's Digest, 4975).

In Lambert v. Weir, 27 Texas, 363, the court say, upon the same question and recorded title, that “We incline to the opinion that the testimonio was, under the former rulings of the court, not admissible in evidence without proof of its execution.” The only certificate of registration that is presented with this testimonio is, “Recorded February --, 1840.” Not even signed officially by the clerk.

In the case of Holliday v. Cromwell, 26 Texas, 193, the certificate was as follows: “The foregoing deed was this day presented for record and thereupon admitted.” The court say: “There not only was no such certificate, but the certificate made by the clerk would seem to imply that the instrument was recorded upon its simple presentation, without more.”

And in the case in 36 Texas, 268, the same principle is held, and even extends beyond, and doubts the admissibility of parol evidence that the proof was made when the instrument was presented for record, holding that a certificate of acknowledgment, or proof, be made upon the instrument and become a part of the record.

From the authorities we find that the title set up by appellee, John Welder, was not a deed, nor was it duly registered, and that he was not “claiming under a deed or deeds duly registered.”

It was contended in the court below, and may be contended in this court, that the rule in relation to claims for lands, by way of sale, when made to Mexican citizens by State authorities and located within the “coast leagues” without the consent of the General Government of Mexico, has been changed by this court, and former decisions upon that subject overruled, in the case of Trevinio v. Cavasos, 35 Texas, 133.

The decision in that case was made upon a grant under the colonization laws of Tamaulipas, a law differing in many respects from the law of Coahuila and Texas. The State of Tamaulipas was, as regards Texas, a foreign nation; and the only right which Texas had to any of the territory of Tamaulipas was that acquired by conquest; and this court, and all courts, have always held that the acts of former governments as regards private rights, should hold good and be respected.

E. J. Davis, and Phillips, Lackey & Stayton, for appellee.

In this case there are two grounds in the alternative on which the appellee relies to sustain the judgment of the court below.

First. Because of a grant from the sovereignty of the soil, being then the Mexican authorities, to the person from whom appellee deraigns his title.

Second. If this title should be found defective, then he claims under the statutes of limitation, and shows this title in connection with evidence of use and ownership to define the extent of his claim under the statutes of limitation.

In regard to the title to the five and a half leagues of Power and Hewitson between the waters of the Aransas and Chiltipin, while it is conceded that a number of decisions of this court have treated similar titles to those empressarios as void, as, for instance, in Smith v. Power, 14 Texas, 146; Id., 23 Texas, 29; Lambert v. Weir, 27 Texas, 359, yet if not inadmissible, the hope is ventured that the mistake made among the earliest decisions in our State, commencing with Edward v. Davis, 3 Texas, 321;Good v. McQueen's heirs, Id., 241, of confusing the prohibition to colonize foreigners within the border and coast leagues, contained in the Mexican national colonization law of 18th August, 1824, as also forbidding the settlement of public land within those limits by Mexican citizens, may be corrected, and the title of Power and Hewitson was offered in the present case largely under the influence of this hope. This court in the case of Cavazos v. Trevino, 35 Texas, 133, has indicated a modification of its previous decisions in regard to this class of citizens, whose settlement of the mentioned territory was not intended to be prohibited by the said colonization law. It may be said, so to speak, to have in that case broken the ice towards doing justice to a large class of citizens who were unintentionally injured by the previous mistake of fact on part of the court. It is spoken of as a mistake of fact, because the misconception of the persons to whom the law applied seems rather a mistake of fact than of law.

At the time that construction was first given to the colonization law by this court, the means at the hands of the court for acquiring a thorough knowledge of what was the purpose of the law, were not so ample as they subsequently became, and furnish a sufficient excuse for what now seems to be so absurd an error--absurd when we reflect that there were then many thousands of Mexican citizens already living within ten miles of the coast of Mexico, and it would seem impossible that any one could suppose the Government of Mexico desirous of prohibiting the location of other Mexican citizens within those limits.

It is not too late to correct the mistake. Even if it had been a mistake purely of law, and affecting permanently the tenure of property, real or personal, it would not be improper for a court to resume the correct line of adjudication. The books are filled with overruled cases, and the doctrine of stare decisis should not be allowed to stand in the way of the just judge with the nerve to correct an error, even at the expense of consistency.

Judge Kent says (Comm., Vol. I., 477): “But I wish...