Word v. McKinney
| Decision Date | 01 January 1860 |
| Citation | 25 Tex. 258 |
| Parties | C. G. WORD AND OTHERS v. JOHN F. MCKINNEY, ADMINISTRATOR. |
| Court | Texas Supreme Court |
The doctrines laid down in Hardy v. De Leon, 5 Tex. 211, and Kilpatrick v. Sisneros, 23 Tex. 113, as to the effect of abandonment of the country and alienage of the grantee, upon titles to land acquired previous to a change of government, are cited and reaffirmed in this case. 5 Tex. 211;23 Tex. 113.
Although it might be doubted whether a concession, under the colonization laws, to a party who died before the completion of the title, was an authority to the alcalde to issue the title of possession to his widow, it was competent for the governor to validate the title thus issued, by his subsequent ratification of the action of the alcalde, and confirmation of the title, though it had been issued without authority.
It was the constant practice of the authorities intrusted with the granting of lands under the former government of the country, to perfect incipient or inchoate titles by a final act of confirmation.
Where the original is an archive of a foreign government, and there is no means of testing its genuineness or the verity of the proffered testimonio, by any record or other evidence within the limits of our own jurisdiction, extrinsic evidence of the execution or genuineness of the instrument offered must be produced. 7 Tex. 338;8 Tex. 210;9 Tex. 598;26 Tex. 212;30 Tex. 104.
Quære--Whether it is necessary to prove the execution of the testimonio, if the protocol is an archive of the general land office?
APPEAL from Goliad. Tried below before the Hon. Edmond J. Davis.
Suit instituted by Maria Jesus de Leon de Manchola, the widow of Rafael Manchola, on the 17th of May, 1850, against C. G. Word and others; action, trespass to try title for two leagues of land.
The plaintiff died before the trial, and John F. McKinney was appointed administrator of her estate, and prosecuted the suit. The title relied on by the plaintiff was a grant to Rafael Manchola of four leagues of land, which was incomplete at the time of his death; the title of possession whereof was issued to the said Maria Jesus de Leon de Manchola as his widow, and said possessory title was ratified subsequently by the governor on April 25th, 1835.
The plaintiff introduced as evidence the testimonio to the said Maria Jesus de Leon de Manchola, with the accompanying documents, as follows: The petition of Rafael Manchola, February 12th, 1829, for four leagues of land, which he solicited on the terms prescribed by the colonization law of the state.
Its reference to the ayuntamiento of Goliad to report according to article 17th of the colonization law, dated Leona Vicario, February 14th, 1829.
Report as to the locality, and the qualifications of the applicant.
The concession made at Leona Vicario, on the 5th February, 1830, of four leagues, as an augmentation headright; and commissioner general directed to give possession.
Petition of Rafael Manchola, 8th October, 1830, that the alcalde of Goliad may give possession.
Corresponding direction to the alcalde. Petition by Maria Jesus de Leon de Manchola, as the widow of the original applicant to the alcalde, that possession be given to her according to the concession to her husband. Dated October 2d, 1833.
The order of survey, dated October 3d, 1833, by the alcalde, on the petition of the widow. Report of the surveyor.
Title of possession for four leagues to the widow from Miguel Aldrete, sole constitutional alcalde for the town of Goliad, and commissioner to distribute and give possession of vacant land within that jurisdiction. Dated October 7, 1833.
Before producing the foregoing testimonio, the plaintiff proved the handwriting of Aldrete, the alcalde acting as commissioner, and of the witness, Vasquez, subscribed thereto. And the plaintiff offered in evidence, appended to the testimonio, the following ratification of the title as to two leagues, to wit:
L. S.
“Executive department of the free state of Coahuila and Texas, book A, No. 161, fol. 147, frt. Monclova, April 25th, 1835.
No proof was offered as to the genuineness of the above recited document, for which reason, and “that there was no authority for making such ratification in any case, and if made, was void because of the nullity of the testimonio,” the defendants objected to its introduction; which was overruled, and the instrument was admitted.
In the year 1837 Madame Manchola left the republic of Texas and went to the state of Louisiana, where she remained three or four years; returned and went to Mexico; again returned to Texas, and again returned to Mexico, and still again returned to Texas, where she died. It was contended, under the evidence on the subject by the plaintiff, that she had not voluntarily abandoned her residence in Texas, and by the defendants, that she had done so, and acquired one in Mexico.
The defendants asked the court to instruct the jury that if they believed from the evidence, that she at any time before the institution of this suit, voluntarily fixed her permanent residence in Mexico, after it became a country foreign to Texas, by her revolution, that she lost what right she may have acquired under the testimonio, and the plaintiff cannot recover. Which the court refused.
They also asked an instruction, that the testimonio of the plaintiff's intestate is void for want of authority in the alcalde to issue it under the concession to Rafael Manchola; and is not validated by the document annexed thereto, purporting to be a ratification by the governor of Coahuila. Which was also refused.
Verdict and judgment for the plaintiff for the land sued for
Pryor Lea, for the appellants. If the title of Madame Manchola can be sustained, it must be on one of two grounds--either that she had a community interest in a vested right, or that she had a right by succession from her husband.
The first alternative presents a controlling question, whether the title passed to Rafael Manchola by the concession. The negative is established by the principles uniformly asserted by this court, with particular reference to colonial and headright titles. Trimble et al. v. Administrator of Smithers, 1 Tex. 790;Webb et al. v. Webb, Adm'r, 15 Tex. 274;Hamilton v. Menefee, 11 Tex. 718;Hart v. Gibbons, 14 Tex. 213;Morris v. Brinlee, 14 Tex. 285;Hancock v. McKinney, 7 Tex. 384.
The foregoing cases are cited, and others might be added, to show controlling analogies against the title in question. The decided cases are not like the present in all respects, but they conduce to establish certain principles, which negative the right of Madame Manchola, and the authority of the alcalde to give her the testimonio.
The concession was merely a preliminary proceeding, and not a vested right. Locus pænitentiæ pertained to each party during the life of Rafael Manchola. The consideration on his part was entirely prospective, for he was a Mexican inhabitant, and never paid anything, and otherwise never did any thing to procure the land, except to ask for it. The bounds of his claim were not defined, although they were specified in his petition, for they were rendered vague by the action of the ayuntamiento and the executive. Either from dissatisfaction, or from some other cause, the applicant never had any action on his concession.
From the premises, which negative active consideration, and certainty of locality and possession, the inference is plain, that Madame Manchola had no community interest at the time of her husband's death.
In the case of Hamilton v. Menefee, 11 Tex. 718, this court said, in substance, that the title of Buentello was good, at least, in equity, before the giving of his testimonio; but the elements of that title were full payment by most meritorious services, established possession, and express recognition of right in the empresario contract, so that the testimonio was only a form for the pre-existing substance of a perfect right. No colonial title (it is believed) has ever obtained a standing in court, when any essential element was wanting. The distinetion is vital between the perfect and the imperfect, in substance. A community interest attaches on acquisition--but acquisition is title--and title against the government is substantial perfection. If any thing less could vest a qualified right, the smallest incipiency could, also, vest a right with additional qualifications, but nothing less can change the ownership, in a legal sense. It follows that Madame Manchola did not have a vested community interest in the imperfect claim of her husband; and in this aspect of the case, there being no vested equity, the testimonio is without authority.
The alternative aspect presents the question, whether Madame Manchola had any right by succession from her husband. This case is plainly distinguishable from one of ordinary headright with reference to the persons who might take. In a case of ordinary headright, the fixed facts determined the preliminary and equal right of acquisition in each head of a family, and a surviving husband or wife took title on individual right, and not on the former marital association. Every head of a family, as such, was entitled to procure an ordinary headright. Thus far, Madame Manchola might have obtained a concession and testimonio without reference to any peculiar attributes, either of her husband or of herself; and, on a satisfactory showing to the governor of her own...
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