55 Tex. 17 | Tex. | 1880
This action, which is in the usual form of trespass to try title, was brought in the
On the trial a jury was waived, and the whole case, law and fact, was submitted to the court, by whom judgment was given for the defendant. And the plaintiff gave notice of, and now prosecutes his appeal.
As appellee made no objection to any of the links in appellant’s chain of title, if the land in fact was granted to Aguirre, and as his (appellee’s) title had its inception more than forty years after the extension of said grant by the alcalde, the merits of this controversy must depend on the fact whether this grant was a nullity, and the land covered by it was a part of the public domain, and subject'.to location, at the date of appellee’s attempted appropriation of it. The determination of this question requires an examination of the objections of appellee to the validity of the grant.
These are:
• 1st. That it appears on the face of said grant that the officer by whom the grant purports to have been extended, acted without authority of law and against law in extending the title.
2d. The erasures, substitutions, additions and interlineations apparent on the alleged protocol in the general land office, cast suspicion of fraud and fabrication upon it, and, unexplained, should have excluded the land office copy of it, as evidence of a grant.
3d. The title relied on by appellant was void for want of a grantee, or, if it shows a grant to any one, it is a grant to Perfecto Valdez.
*27 4th. If said grant was not void upon its face, the evidence before the court justified the conclusion that the officer by whom said title was extended acted without authority, and shows that the grant was issued in fraud, and therefore void.
• We shall not undertake an elaborate discussion of the questions suggested by these objections, or to follow counsel for the appellee through the wide range of discussion in the very able and elaborate briefs and argument which they have presented to us in support of the propositions maintained by them, but shall, in the main, merely state our own conclusions.
1st. The title by Lessassier purports to have been extended in virtue of a concession in sale by the governor to Aguirre for eleven leagues of land, of date 14th day of June, 1830. The testimonio of this concession does not appear in or form part of the expedientes by the alcalde, as was customary and usual in the extending of such titles by this officer. But we know of no authority for saying that the title is void because he has not incorporated into it the evidence of the concession or sale. If there was, in fact, no concession, there could have been no legal grant by the alcalde. But whether there was a concession, and whether there was proper evidence of it presented to him by the interested party, was a matter for his official inquiry and determination. . Whether he set forth in the title the evidence upon which he acted, or merely recited as a fact that a concession had been granted, and authority given him by the governor to extend the title, the presumption which is always indulged in favor of the validity of the acts of officers of a former government, warrants the conclusion that the officer acted in conformity with law and not in violation of it. Holliman v. Peebles, 1 Tex., 709; Hancock v. McKinney, 7 Tex., 384; Hatch v. Dunn, 11 Tex., 717, 718; Ruis v, Chambers, 15 Tex., 590.
2d. If the erasures and interlineations exhibited by the protocol of this title in the general land office were unexplained, this might be good ground for the exclusion of a copy of it in evidence. But the suspicion cast upon the instruments by these erasures, interlineations, etc., are removed by the title itself ; for they all appear to be noted at the foot of each instrument, in which they occur above the signature of the officer and subscribing witnesses. Thompson v. Thompson, 12 Tex., 331.
But it is said if this grant is not void upon its face, it is shown by extraneous testimony to have been extended by the officer from whom it emanates, without authority, in violation of law, and in fraud. That a grant may be shown to be void by proof that the officer had no authority to make such grant, or that the law did not warrant it, is beyond question. But if such grant is authorized by law, and may be legally issued by the officer from whom it emanates, we are not prepared to admit that it
The ground upon which it is claimed that this grant is void for want of authority of the officer by whom it was extended, is in part the same as that heretofore adverted to, viz.: there was no sufficient evidence to prove the sale in concession of the land by the governor. We think, however, that the testimony before the court on this point establishes beyond controversy the existence and validity of such a concession as recited in the extension of title.
It is, however, urged with much more force, that while there was a concession of eleven sitios of land to the grantee, this concession had been fully satisfied by the extension of the title upon it for other lands prior to the date of the present grant. And therefore the extension of this title, purporting to be in satisfaction of the same concession, must be regarded as extended without authority, and as a fraudulent attempt to appropriate doubly the quantity of land to which the grantee was legally entitled.
The evidence before the court shows that Samuel May Williams, the attorney in fact of all the parties named in the concession in which this title had its inception, made two applications in behalf of Eafael de Aguirre for the grant of eleven leagues of land, each based alone on this concession; that all the prehminary steps were taken on each application, and in one a grant was extended to Aguirre for land on the Brazos river on the 4th day of October, 1833, while that for the land now in controversy was not consummated into a final grant until the 22d day of the same month and year. Appellee insists that by the extension of title for the land upon the Brazos, the authority of the officer to make a grant to the interested
The alcalde, by the order, was clothed with authority to extend title to the interested party, and must determine how and when he had done so. Certainly it is not a necessary conclusion from the facts in this case, that, the first of these grants was recognized or accepted by the party interested, as a grant of the land sold him by the governor. It is not shown that a testimonio ever issued on this first title, that possession was ever taken or claimed of it by Aguirre, or anyone claiming under him, or that any government dues were ever paid upon it. It is entirely consistent with the facts, and borne out by subsequent occurrences, that the application for these two grants originated in a mistake or oversight of the attorney, Williams. That after the extension of the first of these titles, and before a testimonio of it had been issued, this mistake may have been made known to the officer and he then extended the second one. The testimony of the surveyor, Johnson, shows that the land for which the last of these titles issued was selected by the parties to whom in fact the concession seemed to have then belonged, though the land was not conveyed to them till some years afterwards. And the evidence shows that it has ever since been claimed to be the land to which Aguirre was entitled by his concession, and that it is the land which was granted to him, while that on the Brazos never has been thus claimed by him or anyone claiming under him.
A short time after the organization of the general land office under the republic, Williams, the agent of Aguirre, at whose instance these titles were issued, appeared before the commissioner and explained to his satisfaction that the first was issued through mistake, and the second one was the title in fact granted to and always claimed
But while we admit that the want of power of an officer to make a grant may be shown, as has been often held, to invalidate such grant, we do not think appellee brings this case within this rule by proving, if such is the proper conclusion from the evidence, that Lessassier granted eleven sitios of land prior to the date of the title now in question. The want of authority of the officer which renders the title void is to be shown by the law, or that he attempts to exercise his authority beyond the territory over which he has jurisdiction, or something of like character, and not from proof of mere error of the officer in extending a title to one not in fact legally entitled, but whom he supposed to be. The alcalde was
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered December 14, 1880.]