City of Laredo v. Macdonnell & the Ferry Co.

52 Tex. 511 | Tex. | 1880

Moore, Chief Justice.

This suit was brought by the appellant, the city of Laredo, against appellee, C. M. Macdonnell, in the District Court of Webb county, on May 13, 1876, to cancel'and annul a deed made byBefugio Benavides, as mayor of the city of Laredo, to said Macdonnell on October 16,1875, for a tract or parcel of land. The land was described in said deed as “ lying and being in said city, and known on the map of said city as ten lots, number --- in block number --•, situated, bounded, and described as follows, to wit: On the east bank of the Bio Grande Biver, and running forty (40) Mexican varas for depth, more or less, commencing at a lot or parcel of ground on the said bank owned by Santos and Cristobal Benavides and running up said river with its meanders for quantity which said land was by said Macdonnell conveyed by deed of date of March 7, 1876, to the Laredo Ferry Company. The Laredo Ferry Company, by an amended ■petition filed October 9, 1876, was also made a party defend:ant to the suit.

The grounds relied upon by appellant for canceling or declaring said deed to Macdonnell to be null, as alleged in the original and amended petitions, were, in effect—■

1st. Said deed had been fraudulently altered subsequent to execution by the insertion of the figures “ 10 ” above and between the words “ as ” and “ lots,” with the intent and purpose of changing the legal import of the instrument.

2d. That the mayor of the city had no authority to sell the land described in said deed.

3d. That the mayor not understanding English, the language in which the deed was written, was ignorant of its contents and purpose.

4th. That the consideration ($50, which ivas proffered back) paid for the land was grossly inadequate; that if, the land conveyed by said deed carried the right or privilege of establishing a ferry, as claimed by appellees, it was worth at least $50,000.

5th. That the ferry company, of which Macdonnell was a member when he purchased, was informed, when the deed was made to it by Macdonnell, of all the facts and circumstances under which the deed to him was made. ■

Appellees, in their answer, allege that the deed of the city of Laredo to Macdonnell, executed by its mayor, was properly executed for a good and valuable consideration, and without fraud, &c. If said deed was originally invalid, it had, subsequently to its execution, been twice ratified and confirmed by said city; that said ferry company had not at anytime any knowledge of any ignorance or mistake of said mayor in executing said deed, or of any fraud practiced upon him, if indeed such was the fact.

A jury was waived by agreement. The case was submitted for determination to the court, and judgment was rendered for the defendants.

There was ample testimony before the court to prove that the figure “ 10,” which appellant insists was added after the execution of the deed, was interlined before it was signed by the mayor. However plausible, therefore, the contrary may be made to appear by the ingenuous presentations of the circumstances relied upon by counsel to maintain the contrary conclusion, this point must be regarded in this court as conclusively settled against appellant by the judgment of the court below.

But conceding that the deed to Macdonuell has not been altered, was it a valid conveyance of the land described therein when executed ? Or if not, has it since been validated by appellant ? These questions must, in our opinion, be answered in the negative.

The city of Laredo, as is shown in the record, was founded as early as the year 1767. It received at its foundation from the King of Spain, as is shown by the “ Vicita-General ” by which it w?as founded, a grant of four leagues of land on the north side of the Rio Grande River, which grant was ratified and confirmed by a patent from the government of Texas since its separation from Mexico. On a portion of this tract, along and back from the river bank which marks the line of “ high water,” a regular city .was laid out in the year 1767, as shown in the “ Vicita-General,” with blocks, lots, and streets running to the cardinal points of the compass. Additional blocks, lots, and streets were subsequently laid off, surveyed, and platted on the map, as the wants of its inhabitants demanded or public interest required; while that part of the grant not embraced in the limits of the city has been disposed of or is still retained as property of the city.

The land claimed by appellees under the deed to Macdonnell, it was admitted on the trial, belonged to the city at and previous to the date of this deed. It is situated as claimed, and was subsequently surveyed by appellees at and along the water’s edge, and entirely upon the flats between the river at its low or ordinary stage and the first bluff or bank which marks the line of high water, just over and below which the blocks and lots previously surveyed and sold stop. The full blocks, as surveyed and platted by the city, are subdivided into ten lots of twenty by forty varas, five of them fronting south towards the river, and five north or back from it. It is not pretended that these flats in front of the city had ever been savveyed into lots of any size or shape. But the proof offered by appellant shows that they had always, previous to the execution of this deed, been used as “a landing and common highway for passengers and freight going and coming across the river.” Locating this land as appellees caused it to be surveyed, it falls short nearly fifty varas of reaching the lots at which it calls to commence. If commenced and surveyed adjoining the lots called for, it crosses and includes part of two of the principal streets of the city, and embraces a part of two blocks, but does not embrace ten lots in any block as previously surveyed or platted, or go to the river’s edge, as appellees claim; or if it should be so surveyed as to do so, it will include nearly three times the quantity of land called for in the deed.

The larger portion of these flats, and that especially now-claimed by appellees, had from time immemorial, almost, been used by the public, if indeed it had not been dedicated to its use. It was, as the testimony in the record shows, almost entirely valueless to private parties, unless by its appropriation they are permitted to make such public uses as had been previously made of it a source of private gain.

Bow, passing by the question of alleged fraud in obtaining this deed, whereby the city, for the paltry sum of $50, is alleged to have parted with property which appellees claim, entitles them to the privilege of a ferry which the city was leasing previous to the institution of this suit for $2,900 per annum, and admitting that the mayor was not overreached in what he did by those more cunning and designing, as well as better informed, owing to his ignorance of the language used in consummating this transaction, if it can be considered possible to do so, to uphold this deed it must still be made to appear that the mayor had authority to sell the property which is here in dispute. To determine whether such authority was vested in him, reference must be had to the charter and ordinances of the city under and by virtue of which he acted.

The act to incorporate the city of Laredo, approved January 28, 1848, contains the following provisions bearing upon this question:

“ Section 2. Be it further enacted, That the limits of the city of Laredo shall be one square mile and bounded in the following manner, viz.: The Bio Grande shall constitute one line, and the upper and lower lines shall be equidistant from the public square or plaza, and, running back from the river parallel to each other, shall intersect the back line at right angles. The lines shall all be one mile in length, and forming, as near as the meanders of the river will permit, a perfect square.”

“ Section. 5. Be it further enacted, That the mayor and aldermen shall be invested with the following powers, viz.: First. They shall have authority to make and pass all by-laws and ordinances not repugnant to or in violation of the Constitution, &c. * * * Thirdly. They shall have authority to establish ferries, build levees, wharves and landings, fix the rates, fees, and rents of the same, &c., * * * and sell and dispose of any property belonging to the city, for the benefit thereof.”

It was admitted on the trial that the only ordinances under which the mayor could have acted in making sale of the land described in this deed, were as follows, to wit: “Besolution relative to the sale of city lots. Be it resolved by the mayor and board of aldermen of the city of Laredo, That the mayor be, and is hereby, authorized to sell city lots;, the purchaser paying $5 for the corporation, $1 mayor’s fees, and 50 cents city surveyor’s fees. Approved January 3,1874; ”—and “An ordinance relative to the sale of lots and blocks, approved February 9,1874,” whereby the mayor was authorized to sell lot or lots, block or blocks, to any person who will deposit one-fifth of the purchase-money with the mayor, who thereupon should give the purchaser a certificate of possession, and if such purchaser should, within six months, inclose the property sold with a good and substantial fence, to be approved by the mayor, then on the payment of the remainder of the purchase-money the purchaser should be entitled to a deed.

Of course there is, and can be, no pretense that this deed was made under authority of this last ordinance; and, as is obvious, the first only authorized the mayor to sell lots, and not tracts or parcels of land, belonging to the city, which had not been laid oft'into lots. The land claimed by appellees, as has been said, had not been laid off as lots so as to be subject to sale by the mayor. The designation of it in the deed, as ten lots, merely indicated with additional certainty that the land embraced by the boundaries in the deed corresponded in quantity with that number of lots of the size of the city lots. To say that the mayor, by calling in the deed for the number of lots which the land sold by him would make if surveyed into lots, could make a valid sale of land, would be a most unreasonable and unwarranted construction of the ordinance, and would lack even plausibility for its support. The entire evidence shows that no such construction had ever been given to or claimed for it.

The mayor who signed the deed, in his testimony as a witness says: “I never while I was mayor sold any lots having their boundaries on the water’s edge. I never knowingly or intentionally sold any land on the water’s edge, where the ferries cross in front of the city, * * * within the limits of the map of the corporation. I had authority to sell lots, but outside of those on the map of the corporation I had no authority to sell,, except by special ordinance.” And again: “I would not sell lots that interfered with the ferry on the river. Selling lots there” (i e., where the lots in question are claimed by appellees) “would disturb the ferry. Besides, I had no authority to sell them on the river flat.”

Another witness, who had been mayor of Laredo for three or four years previous to 1872, and who, by consent, made an extract from the city map, so far as the same is applicable to the question at issue, says: “ I am well acquainted with the city tract and the lots and blocks of the city. The lots and blocks are laid off by due north and south, east and west courses; all lots and blocks are laid off in that way. * * * Without a special ordinance no sale of any tract of the city lands has ever been made, except city lots and blocks laid off on the city map, the sale of which is authorized under general ordinance of the city. I have known two cases of donation or sale of tracts, other than lots or blocks, by special ordinance, but they were outside the city limits.” The map of the city being shown to witness, he said: “This map is the only one under which sales of lots and blocks were made. I never knew of any lots within the city limits sold that were not on this map. * * * Macdonnell’s tract is not marked or laid off" anywhere on this city map.”

Another witness says: “ I have lived in Laredo all my life; am in my fifty-fourth year; I first held office as procurador of this place under the Government of Mexico; I held this in 1842 or 1843. Under the American Government I have been chief justice of Webb county, alderman and mayor of Laredo. During the late war I was colonel in the Confederate army. Ho person has ever claimed exclusive ownership of the flats of the river. It has always been used as a landing and common highway for passengers and freight going and coming across the river. Until lately there have never been any lots sold below the bluffs. It was never heard of before, that any person ever thought of applying for purchase of lots or land lying down there.”

There was no testimony in the case tending in the slightest degree to rebut or contradict the testimony of these witnesses.

But appellees insist, that although the sale to Macdonnell by the mayor may have been beyond the scope of his authority, it was subsequently ratified and confirmed by the city council, by the following resolution, passed December 27,1875: “ Be it resolved by the city council of the city of Laredo, That all acts, deeds, and contracts whatsoever, orders, obligations, contracts executed or to be executed, heretofore made and performed daring the year 1875, by his honor the mayor, Refugio Benavides, on behalf and in the name of the city of Laredo, be, and the same arc hereby, approved, confirmed, and ratified by the city council" of the city of Laredo.” Certainly, this resolution is sufficiently broad and comprehensive in its terms to confirm this or any other act done by the mayor on behalf or in the name of the city in the course of said year which it was in the power of the council to confirm, if the facts and circumstances attending its adoption were such as to warrant this resolution being held applicable to it.

But was this the case in relation to the execution of this deed to Maedonnell ?

The evidence warrants the conclusion that the procuring of the deed was a part of a secret and premeditated scheme by the parties engaged in it to secure for themselves the ferry franchise across the Bio Grande Biver opposite the city of Laredo, which was then claimed and exercised by the city. The first step in the accomplishment of this design was the secret organization of the ferry company and procuring a deed from the mayor so general and indefinite in its terms as to enable the grantee to claim the rights of a riparian owner. To this end, the land purchased is described in the deed as “ten lots, number-, block number-, on the east bank of the Bio Grande Biver, with a front on said river commencing at a lot or parcel of land on said bank owned by Santos and Cristobal Benavides.” The bank here referred to is plainly shown to be the bluff which bounds the wTater of the river at its highest stage, because this is where the Benavides lot is situate. West of this lot there were surveyed lots and blocks which the mayor was authorized to sell; but if the land bought was to embrace the lots west of the Benavides lot, it should have been designated by the numbers of the lots and blocks as they are upon the city map, but the numbers are left blank. The figure “ 10 ” is inserted before the word “ lots,” not to designate the locality of the land embraced in the deed, but to mislead the credulous and confiding mayor, and perhaps others, to suppose that the deed merely called for land which had been surveyed and placed on the city map, and which the mayor might sell. If the land purchased is located by course, distance, and quantity as called for adjoining the Benavides lot, thpn it would not reach the river at its ordinary stage hy more than a hundred varas. Therefore care was taken to add to this description of it, in the deed, the words “ and running up said river with its meanders for quantity.” Evidently the parties engaged in this scheme were too astute not to know that the validity of this deed would be questioned so soon as their object and purpose became public. The evidence in the record shows that they most sedulously guarded their secret until some time subsequent to the passage by the city council of the resolution which appellees rely upon as a confirmation of this unauthorized and invalid deed by the mayor. This fact, with others developed in the progress of this case, may well excite suspicion that it was but a part of the original arrangement of securing for parties interested in getting the deed to Macdonnell the coveted prize for which they were plotting, to avail themselves of the kindly feeling generally entertained for a popular officer, and under the guise of a complimentary expression of confidence and approval of his official conduct, by the adoption of this resolution, to procure from the city council, as they supposed, a ratification of an unauthorized and invalid act.

But if such was its purpose, the parties engaged in it overlooked the fact that ratification, even as between individuals in regard to private transactions, is not obligatory unless the act relied upon is done with full knowledge of the facts and circumstances of the case. (Story on Sales, 77; 18 Md., 282; 8 Wall., 26.) And it has been more than once seriously doubted, if not denied, that a city council has authority to validate by ratification an illegal act or contract of another municipal authority. (4 E. D. Smith, 413; 2 Kan., 371.)

It is also contended that the deed was ratified by the city council by resolution passed at a called meeting to consider a petition to this effect by the grantee, Macdonnell, on April 14, 1877, while this case was on trial before the District Court. The circumstances under which this meeting of the council was had, and its attendant surroundings, are well calculated to occasion grave comment. It will suffice, however, to say, whatever may have been the intention of the council or those at whose instance—to use no stronger term—it was passed, that this resolution does not undertake or purport to validate or confirm the deed in question. It merely says “ that it is the opinion of this corporation that the intent of the parties to said deed was to convey ten lots on said river front, in accordance with the survey, and now attached to the deed executed by the city and delivered to J. H. McComb,”—that is, that the council believed it was the intention of the parties to the deed to convey land where appellees had, subsequent to the date, caused it to be surveyed, which, as we have said, was a part of the flats, and which was not adjoining or contiguous to the Benavides lot called for in the deed, and which had not been laid off into lots and blocks on the city map previous to its sale. If the council were right in their opinion, it only shows that the mayor was knowingly a party to an attempt to violate the charter of the city and convey property belonging to it without authority; but it does not show that the council intended to ratify, or supposed it had ratified or confirmed, his unauthorized act.

[Opinion delivered February 13, 1880.]

It follows from what has been said that the judgment in favor of appellees is erroneous and must be reversed, and judgment here rendered for appellant in accordance-with the prayer of the petition. It is so ordered.

Reversed and rendered.