16 Tex. 391 | Tex. | 1856
This was an action to try title, and also that the title of the plaintiff, Byrne, might be quieted and established, against the pretended grant, or title, of defendants. The boundaries of the tract claimed by plaintiff are specifical
The defendants pleaded in reconvention, a grant from the State of Coahuila and Texas to Anastacia Riojas, as a colonist in the colony of Power & Hewetson ; that the claims and locations of plaintiff were a cloud upon their title, which they prayed to be removed and declared null and void.
There was verdict and judgment for defendants, and motion for new trial being refused, the plaintiff appealed, and assigns,
1st. That there was error in admitting the testimonio and translation offered by defendants, as competent evidence of title.
2nd. In overruling the motion for new trial.
• 3rd. In rendering judgment for the defendants, on the pleadings, verdict and evidence.
The defendants relied on a title purporting to have been issued on the 1st Sept., 1834, by Jose Jesus Vidaurri, the commissioner of Power & Hewetson’s Colony, to Anastacia Riojas, a Mexican widow ; and, on offering the testimonio (in the original language, and by way of translation,) of the grant, objections were taken, on the grounds,
1st. That the grantee, Anastacia Riojas, was not properly a a colonist in Power & Hewetson’s Colony, and that the commissioner was not authorized to issue title to her as a settler.
2nd. That she should have applied to the Ayuntamiento and received her title from a special commissioner; and that Vidaurri, as colonial commissioner, was authorized to issue titles
The objections were overruled, and the question is, was this error?
The gist of the objection is, that it does not appear from the face of the title, that Madam Riojas was admitted as a colonist before the time limited for the expiration of the contract, viz : the 11th April, 1834. The commissioner to issue titles to the colonists, was not appointed until after the contract had expired, viz : the 19th June, 1834. In the discharge of his functions, he passed, in the usual form, the petition for title, to the Empresarios, for the expression of their consent as to the admission of the applicant. The fact of admission was preliminary to the grant, and the certificate of the Empresarios was required by the commissioners as the most authentic evidence of such fact; and, whether the contract had expired or not, the inquiry was made of the Empresarios, and their certificate required, on the grant of title. There is no evidence as to the time of admission of the grantee. She was a Mexican, and, under the special order of the Government, could claim admission and the rights of a colonist. She had, as appears from the petition, resided for five years within the limits of the colony ; and, in the absence of proof, the presumption is that she, or her husband when alive, was admitted, on their introduction, as colonists.
But it is said in argument, that the title furnishes intrinsic evidence, that the grantee was not admitted, until after the application for the grant, and that this appears from the reply of the Empresarios to the commissioner, to the effect that “ with respect to the admission of the Mexican woman, Dona “ Anastacia Riojas, in this colony, we immediately, (or from “ this moment, desde luego,) give our consent, as required of us “ by law.”
This mode of expressing the assent of the Empresarios is doubtless obnoxious to criticism ; and if the response had been,
Under the second assignment, the appellant insists that there was no proof that the grant given in evidence by defendants, included the lands claimed by the plaintiff. But the answer to this is, there was no necessity for such proof. The plaintiff had specified the boundaries of his claim, his seizin, and his subsequent ouster and eviction therefrom by the defendants, under a pretended grant, alleged to have been made to the said Anastacia Riojas, as a colonist in the colony of Power & Hewitson, which defendants assert to be valid and subsisting, but which the appellant avers is a cloud upon his ■title, and is from the beginning fraudulent, void and of no effect,' and if any right accrued thereunder, it has since become esS tinct by reason of the Statutes and Constitution of the Republic and State of Texas. The necessary inference from these averments is, that this grant which defendants set up as color for their acts, is for the identical land claimed by the plaintiff. The effect of the averments is to put in issue the respective titles of the parties and not the locus in quo. This was claimed as represented in the petition, by the plaintiff, and also by the defendants, though, as he alleges, under a grant fraudulent and void. The description of the alleged grant to defendants is not full and precise, but the presumption that the grant of
The verdict of the jury cannot be said to be without or contrary to the evidence; and the motion for new trial, on that ground, was properly overruled.
The third ground, assumed by appellant, is, that the defendants’ grant, not having been placed on the county map, prior to 1850, constituted no defence to the action. To support this position, the appellant refers to the case of Smith v. Power, 2 Tex. R. 72 ; Commissioner of General Land Office v. Smith, 5 Id. 71 ; and Hart. Dig. Art. 2142. The special ground relied upon is doubtless the Art. in the Digest. This is the Act of 1845, requiring the owners of land in the counties of Refugio- and San Patricio, by titles from the Mexican Government or the Government of Coahuila and Texas, the lines of which had not been correctly and permanently marked and designated, to have, within two years from the passage of the Act, the same resurveyed at their own expense, and have permanent corners affixed to said surveys, provided that nothing authorized by the Act should validate titles not otherwise valid ; and when so resurveyed, the owners were to return certified plots of the same to the General Land Office, and the plots, when so returned, were to be delineated on the maps of the counties in which the lands lie, and were, from the time of such return and delineation, to be regarded as the only true boundaries of the said land.
This Act was for the relief of owners of lands with imperfect surveys, or with boundaries not correctly designated, and
It is further urged, that no notice having been given to the appellant, by record, by delineation on the county map, by notoriety or direct information, the defendants’ grant cannot be allowed to defeat the patents issued to the plaintiff in 1840.
It seems that the testimonio, under which defendants claim, was not recorded in the county, until November, 1848, and were this record the only notice of their title, it could not affect a patent issued several years prior to such notice.
But there was no proof that the original, or protocol, of the testimonio offered by defendants was not deposited in the General Land Office, and there is a presumption, that where there is a testimonio, the original is among the archives of the General Land Office, being its proper place of deposit. Now, although an owner of lands should, in the exercise of vigilance, record his grants or patents, and would, perhaps, examine as to their proper delineation on the county map, yet he is not, for his own security or for the preservation of his rights, compelled to the performance of these acts, provided his grant be
We are of opinion that there was no error in the judgment, and it is ordered that the same be affirmed.
Judgment affirmed.