Cowan v. Williams
49 Tex. 380
Tex.
1878
Check Treatment
Moore, Associate Justice.

Previous to the decision of the case of Blount v. Webster, 16 Tex., 616, grave doubts were entertained by many of our ablest jurists regarding the validity of the class of titles upon which this action was brought. This doubt arose from the supposed requirement of the thirty-second section of the decree of March 26,1834, that the authority of the commissioner by whom they were issued was limited to extending titles “ to the inhabitants of the frontier óf Nacogdoches, and tiaose residing east of Austin’s colonies,” to lands which they were occupying. But this doubt was put at rest by the decision in that case; and, so far as we are aware, there has been no serious effort since that decision to the present time to question the validity of said titles; nor does appellant now impeach the validity of *392all the titles issued by the commissioner appointed to extend titles to the inhabitants of said frontier, but he contends that the authority to extend the title upon which this suit is brought was not within the power of said commissioner, because the grantee was a native Mexican, and not a foreigner, to whom alone, as appellant insists, the commissioner was authorized to extend titles.

Whether such is the correct construction of the law or not, it seems to have .been held, in the case of Wilcox v. Chambers, 26 Tex., 180, that it should be regarded as finally settled, by the previous decisions of this court, that the consent of the Federal Executive of Mexico was essential to a grant of land within the border leagues, whether such grant was made to a native Mexican or to a foreigner; and though we are free to admit that it was the petitions of the foreign settlers, and their communications concerning them, which, in the main, induced the resolutions of- the general government of Mexico of April and August, 1828, assenting to the granting of lands “ to the inhabitants of the frontier of Nacogdoches, and those residing east of Austin’s colonies,” “ according to article 16 of the colonization law of the 24th of March, 1824,” yet it would, we think, violate the express provision of this law, as well as the general spirit of the legislative and uniform policy of both the general and State governments in granting or disposing of land to purchasers and settlers, to hold, as appellant insists, that a grant of land within the border leagues, if made to a foreign settler, would be valid, but if the settler should be a native Mexican, it should be held void.

If we examine the colonization and other laws under which lan ds in Texas were disposed of while an integral part of Mexico, we will find that it was not contemplated that colonists would be exclusively foreigners, or that lands were only to be granted to this class of settlers. (Faschal’s Dig., arts; 211, 213, 669, 670, 686, 687, 715, 716.) But in the distribution of lands under these laws, it is expressly declared that native Mexicans shall be preferred to emigrants or settlers from *393abroad. (Paschal’s Dig., arts. 551, 572, 694.) And in the twenty border leagues fronting upon the United States line, and the ten littoral leagues upon the coast of the Gulf of Mexico, it was expressly declared to be the duty of the Executive to take care that no settlement should be made not composed of two-thirds Mexicans. (Paschal’s Dig., art. 693.) Whether this duty was strictly fulfilled by the Executive, is now of no moment. The fact that such a provision was made in a law looking to the settlement and granting of lands within the border leagues, certainly tends strongly to negative a construction that it ‘was illegal to grant land in the border leagues to native citizens, though such grants might be made to foreign settlers.

It is to be noted, that the thirty-second section of the law of March 26, 1834, under which this title issued, does not authorize the issuance of titles to a particular portion of the inhabitants of said frontier, but in general terms authorizes the issuing of titles “to the inhabitants of the frontier of Eacogdoches, and those residing east of Austin’s colonies.” And if it is answered, that although this law may, by its general terms, warrant the grant, yet, as the resolutions of the general government of April and August, 1828, only had reference to the granting of titles to foreign settlers, the State government, from which this law emanated, had no power to authorize the issuing of titles to others than those on whose behalf its consent was invoked; and that it cannot therefore be inferred that grants to native Mexicans were authorized by these resolutions, though they were inhabitants and residents of the same locality. But if we were to grant that the latter class of settlers were not within the letter of these resolutions, still it must be conceded they are certainly within their spirit; and as, according to the canons of construction of the Spanish law, it is held that matters about which special legislation seems unnecessary may be decided by similar cases provided for by law, it would follow that no objection could be made to the grant, unless, indeed, it was by the government, or some *394one directly authorized to do so by it. (2 Moreau & Carl. Partidas, 1248, rule 36; 1 Febrero Mexicano, 73, 74.)

2. The act “ to quiet the land titles within the twenty frontier leagues bordering on the United States of the North,” approved January 9, 1841, (Paschal’s Dig., 237-240a,) had no reference to titles extending to citizens on account of their headright claims, as they were popularly denominated. This is the only reasonable and fair inference to be deduced from the fifth section of the act. (Paschal’s Dig., 240a.) Such was, and has been, it’s practical construction by those interested in these titles from the date of the enactment of the law to the present time. Not a single suit is known or believed by the court to have ever been brought to establish titles issued to colonists, or to the inhabitants of the frontier of Nacogdoches, under this law; and although hundreds of suits have been brought upon such titles, this is the first case in which such an objection is known to have been made to them. It would certainly require much plainer language than that found in this statute to justify the court in giving it a different construction than that given to it when adopted, and which has been acquiesced in and acted upon for now nearly forty years, and which, to say the least, would render it of exceedingly doubtful constitutionality.

3. No objection was made to the translation of the instrument in the Spanish language which was offered in evidence by appellee. We hardly suppose it would be denied that the court could and should instruct the jury as to the legal effect of written instruments, though in a foreign language, when there is no controversy as to the correctness of the translation, whether such translation should go to the jury or court. Nor are we prepared to say that the judge before whom the case is tried could not instruct the jury as to the legal effect of such instruments without the aid of a translator, if he is willing and feels himself competent to do so ; and it certainly has not been made to appear, by anything in the record, or by a reference to authorities, that he' could *395not. The. instrument was in the language in which our laws, judicial proceedings, and public records were written at its date. If the court judicially knows the law by which the instrument must be construed, can it not also construe the instrument? If the judge is ignorant of the language in which an instrument is written, no doubt it might be necessary for him to have the aid of those who are conversant with it. And so, also, it may be where the character of writing of a particular instrument is so difficult to decipher that some one peculiarly skilled in deciphering writings has to be called upon to read or interpret it. (1 Greenl. Ev., sec. 280.) But if the judge is satisfied without doing this, believing that he fully comprehends the proper import of the instrument, can it be made a question that he had not the proper skill to read or decipher it ? And especially so where it is not shown that he failed to properly construe it ? The decision of this point, however, is not necessary to the proper disposition of the case, and we need not dwell further upon it, or make any authoritative ruling in regard to it.

4. The effect of the omission to note the instrumental witnesses, in an act of sale passed before a notary public, has not been fully or satisfactorily argued; nor do the authorities to which we are cited appear to be directly in point. Ho doubt, unless there are instrumental witnesses present when the declaration of sale is made before the notary, the instrument is not a complete and perfect public instrument; but it by no means follows, because it is defective in this particular, that it is void. The notarial act is merely the evidence of the sale, and not the sale. Though when such instruments are defectively executed they may not furnish full proof, yet, as has been frequently held by this court, they are nevertheless admissible in evidence, and but slight additional proof is required to supply their defects. (Titus v. Kimbro, 8 Tex., 210; Clay v. Holbert, 14 Tex., 189.)

Admit that the act of sale from Ybarbo to Amory was defective, still it was an archive or paper properly in the custody *396of the officer before whom the sale was declared. By the statute of 1836, organizing the County Court, it became a record of the office of the clerk of the County Court of ISTacogdoches county. (1 Hartley’s Dig., art. 260.) A certified copy of it by this officer is admissible in evidence. The original has all the essential ingredients of a deed inter partes. It purports to be made upon a sufficient consideration; is between parties apparently capable of contracting, and has apt words for conveying land according to the requirements of the law when it was made; it is signed by the vendor, and attested by the subscribing witnesses, as well as the officer before whom it was passed; and, we think, might well he held to warrant a recovery against third parties. But as the question may be more thoroughly and satisfactorily, discussed on another trial, we need now make no definite ruling regarding it.

5. The only remaining question which we need consider, is the refusal of the .court to grant appellant a new trial; and in this, we think, there was error for which the judgment must be reversed.

Grant that the amendment does not set up a new or different cause of action from that presented in the original petition, still it unquestionably does present an entirely different issue from that which appellant was required to meet by the original petition. Appellee’s counsel admits, that if he had gone to trial upon the original petition, he -must have failed. The fact that the case had been pending for thi’ee or four years, on a petition which did not require appellant to adduce any evidence whatever to defeat the action, may in some degree have lulled the vigilance of appellant’s counsel, and to some extent accounts for his failure to give his personal attention to the case. But be this as it may, if the affidavit in support of the motion for a new trial is to be believed, appellant has apparently the better title to the land which he' claims. He was not called upon to set -up his title until the filing of the amended petition on the very day of trial. The *397case was tried when he was absent, and, by reason of sickness, was unable to be in attendance upon the court. If he had been present, he would have been unprepared to try the case upon the amended petition. It cannot be inferred that he knew or consented to the absence of his counsel. If he or his counsel had been present, a continuance would have been granted on an affidavit of surprise by the amendment. The attorney who appeared in the case, through courtesy to appellant’s counsel, was wholly uninformed as to the nature of his defense. He did not know that the issue was entirely changed by the amendment. It cannot, therefore, be said that his failure to ask for a continuance estopped appellant from moving for a new trial.

Appellant’s counsel was unquestionably negligent; but appellee is likewise chargeable with a want of diligence in the presentation of the cause of action on which he has recovered this judgment. Is he, in equity and good conscience, entitled to retain land which the law says justly belongs to appellant, and for which the affidavits in support of his motion for a new trial warrant the conclusion he has gotten judgment by misfortune of appellant’s sickness, and the improper or unexplained absence of his counsel ? We think not. True, it has been often said that a new trial will not be granted to let in the defense of limitation; but that is where this defense is looked upon as in some degree immoral or as gmsi-fraudulent. But, certainly, if appellant has the better title to the land,—which unquestionably he has, if the facts stated in his application for a new trial are true,—it surely makes no difference how he has acquired this superior title, of which the other party now seeks, by mere accident and misfortune, to deprive him.

For the error of the court in overruling the motion for a new trial, the judgment is reversed and the cause remanded to the District Court.

Reversed and remanded.