64 Tex. 553 | Tex. | 1885
At the Tyler term, 1883, this court adopted the opinion of the commissioners of appeals reported to us in this case, reversing the judgment of the court below, and rendering a judgment in this court in favor of the state of Texas. Subsequently a motion for rehearing was filed by the appellee, asking us to reconsider our former decision and affirm the judgment of the district court.
It was correctly held in the opinion of the commissioners that in this case the matter of procuring the land for which De Leon had made application “ had progressed to the termination of the instructive dispatch, which was ordered to be passed to the executive of the state of Tamaulipas;” and it was further properly said, “if this dispatch shows that its several progressive parts are in compliance with the laws then in force, then it would result that, as only the executive in issuing title was required to perfect the grant, had there been no change in the sovereignty, it may be assumed that the grant would have issued. On the other hand, if the instructive dispatch affirmatively shows that the law was not complied with, it will not be assumed that the executive would have extended a title upon it.” The opinion then proceeds to set up three supposed defects in the dispatch, by which it was vitiated, and holds that on account of those the governor of Tamaulipas would not have extended title to the applicant, and hence that he cannot recover in our courts under the act of August 15, 1870.
These defects are as follows:
1. The land in controversy was appraised at only $10 per league, whereas the law of Tamaulipas required that lands of its description should not be purchased from the government for less than $30 per league.
3. Some of the papers going to make up the instructive dispatch are not attested by two assisting witnesses.
The papers composing the dispatch that precedes the inspection of the land seem to have been executed prior to the 17th of November, 1833; the others bear date subsequent to that time. The application was evidently made under the colonization law of Tamaulipas of December 15,1826; the inspection, survey, appraisement, and all other proceedings, occurred after the law of November 17, 1833, took effect. We do not regard the law of October 19, 1833, as at all applicable to the case, as it was passed for the benefit of certain towns, among which Beynosa was not included.
The law of 1826 seemed to contemplate that the first step towards obtaining a land grant should be a petition to the governor. The application was to be referred by him to the proper alcalde, whose duty it was to make the appropriate decree in reference to the examining, measuring and marking out the land designated, after citing the adjoining proprietors should there be any. Id., art. 7.
These proceedings, if no opposition was interposed, were to be passed by the alcalde to the executive of the state, by whom the title of adjudication and ownership should be issued to the person interested, ordering that the alcalde of the town of his residence put him immediately in possession of the land granted. The proceedings before the governor were to be conducted officially, and the executive was to proceed with the audience of the fiscal of the supreme court of the state. Article 8.
But whilst the more regular plan may have been to apply in the first place to the executive, it seems that in practice these applications were frequently made to the alcalde, as in this case, or to the ayuntamiento. This we infer from numerous records in this court; and in previous decisions, it has been shown that the instructive dispatch has been recognized by the executive of Tamaulipas as sufficient to obtain the concession, where the original application was not made to the governor.
This court, too, has in effect determined that proceedings not originally commenced by petition to the governor may be sufficient to entitle the applicant to a final concession from the executive. State v. Sais, 47 Tex., 307, 315; State v. Sarnes, id., 323; State v. Sais, 60 Tex., 87.
In the first two cases cited the application seems to have been
In the last case cited the application was under the general law of 1826, and the applicant was held entitled to a concession, though there was no proof that he had ever obtained one, and hence to a judgment of this court, although the denunciation and application was made to the alcalde.
Moreover, it appears to have been proved in this cause that the papers of which the instructive dispatch was made up,vested title to the land in De ¡Leon. Of course this testimony is worthless to prove such title; but coming, as it did, from intelligent Mexicans residing in Tamaulipas, one of whom had himself been an alcalde of ¡Reynosa, it might, as remarked by Roberts, O. J., in State v. Cuellar, 47 Tex., 304, 305, have been valuable in giving information as to the previous or contemporary construction given to the laws of Mexico by the officers who executed them. If their evidence is to have this much weight attached to it, then it shows that the officers construed the colonization law of Tamaulipas as authorizing the proceeding necessary to obtain a grant of land, to begin with an application to the alcalde, and to be conducted in other respects as in the present case.
It may be added that this court has held that “the construction of their powers, and of the laws which conferred them, adopted and acted upon by the authorities under the former government of this country, must be respected until it be shown that they have clearly transcended their powers, or have acted manifestly contrary to law.” Hancock v. McKinney, 7 Tex., 384.
After the lapse of forty years it is nothing more than a reasonable presumption that an instructive dispatch, prepared in like manner with others which have received the sanction of the government of Tamaulipas, and by officers familiar with their duties and powers, was legally prepared, and would have been followed by a grant from the executive if presented to him for that purpose.
We are not pointed to any law of Tamaulipas requiring any papers such as are found in the instructive dispatch,to be authenticated by two assisting witnesses. The laws of Coahuila and Texas
Here there was no instrument of possession. It was the want of this that the present suit was instituted to supply. The original order of the alcalde, as to the denunciation, view and survey of the lands, and notice to adjoining proprietors, was authenticated by two witnesses; and the important signatures to all the other papers, as well as to this, were fully proved by witnesses examined at the trial.
It seems that the denunciation was of five leagues under article 25 of the colonization law of Tamaulipas. The survey was intended to be of that amount; but in making up the plat it was found that there was an excess of three labors over and above the five leagues. This may have arisen from an error of the surveyor in making his original calculation, and for such an error it would hardly be proper, at this late day, to cancel the right of the applicant to the entire land. But prior to the making of the survey, the law of Hovember 11, 1833, had taken effect, which allowed as much as six leagues to persons breeding stock, and that this was, in effect, the occupation of the applicant, seems to be clearly inferable from the evidence. So that he did not receive more land than he was entitled to under the law in existence at the time.
The amount fixed by the appraisers to be paid by him for the lands could not vitiate his title. The reasons given by them for fixing the price at $10 per league were, of course, insufficient. But by reference to that portion of the law of 1826 which was not repealed by the decree of November 11, 1833, we find that the appraisers had no authority to fix the price of pasture lands. Art. 23. The law fixed this in all cases at $30 per league, and no act of the appraisers, assessing it at less or more than that amount, could compel the applicant to pay more, or the state to receive less, than $30, unless it contained running water, which was not the case in reference to the present land. The applicant, therefore, before receiving possession of the land, was bound to pay to the state $30 per league, regardless of the appraisement; and the appraisement did not affect either his rights nor those of the government. For these reasons the judgment heretofore entered in this appeal will be set aside and a rehearing granted; and the judgment below will
Reformed and affirmed.
[Transferred from Austin to Tyler, and opinion delivered December 8, 1885.]