26 Tex. 180 | Tex. | 1862
On the 2-lst day of December, Anno Domini eighteen hundred and twenty-nine, one Vicente Padilla, representing himself to be an actual resident of the town of San Felipe de Austin, made application to the government of Ooahuila and Texas for the sale to him of eleven leagues of land, of the vacant domain of the State, in accordance with the provisions of the twenty-fourth article of the colonization law of the 24th of March, A. D. 1825. On the 5th day of February, Anno Domini eighteen hundred and thirty, the supreme government of the State granted the favor solicited by the said Vicente Padilla, and ordered the Commissioner-General, appointed by the State, to put the applicant in possession of the land, and extend to him the corresponding title. On the 8d day of March, A. D. eighteen hundred and thirty, Vicente Padilla made application to Juan Antonio Padilla, the Commissioner-General for the State, to have the lands which the Government had agreed to sell to him, surveyed, .and to have the corresponding titles extended. On the 28th day
The five leagues of land thus conveyed to Vicente Padilla, were by him conveyed to' Thomas J. Chambers, on the 23a day of June, eighteen hundred and thirty.
This suit was instituted by the appellee, Thomas J. Chambers, claiming the land as his own by virtue of the grant to Padilla, and the sale by Padilla to himself; and alleging that the appellant, Wilcox, is a trespasser upon the land..
This case was decided at the fall term, A. D. 1849, of the District Court, before the 3d volume of the Texas Reports, containing the cases of Goode v. McQueen’s heirs, Edwards v. Davis, and the Republic v. Thorn, w'as published. Since the trial of the cause in the District Court, the main questions involved in it have been much considered by the bar and by this court, and we are now called upon, not so much to investigate, as to say whether or not the former decisions of this court shall be followed. The learned appellbe, in the very able argument which he has presented in this case, has not sought to distinguish it from other cases which have been decided by the court, so much as he has labored to show that the former decisions proceeded upon a narrow and erroneous view of the Mexican laws and customs relating to such titles as the one now under consideration. And while I do not feel at liberty, in view of all the considerations involved, to decline to follow a long train of decisions, which have established a rule of property in the State, I feel that it is due to candor, and not improper, to declare that if the question were an original one, I should feel bound as a judge to say that a title such as the appellee presents in this ease ought to be held to be valid; that the consent of the Federal Executive of Mexico to the grant to a native Mexican of land within the border or littoral leagues was never necessary, but that such consent was only necessary to a grant to a foreigner, or to a contract to colonize, whether the contractor was a foreigner or a Mexican; and that, even if it could be shown to be true that the consent of the Federal Executive was necessary to the location within the border or littoral leagues of a grant, in sale, or otherwise, to a native Mexican, such consent, in a case like the present, is sufficiently shown, and ought to be conclusively presumed from the legislation of the General Government and of the Government of the State of Coahuila and Texas, from the correspondence of public functionaries of both Governments, from a policy clearly indicated by such legislation and correspondence, and (in this case) from the character of the officer
But these questions have been several times decided, and have been declared to be no longer open for discussion. I shall content myself, therefore, by stating the manner in which the questions in this case were presented, and wherein the rulings of the judge who tried the case below are at variance with the law, as settled by the former decisions of this court.
The objection taken upon the trial below to the admissibility in evidence of the testimonio to Vicente Padilla does not seem to be relied upon in this court, and we are of opinion that it was properly admitted in evidence.
We do not deem it necessary to consider the objection taken to the admission in evidence of the act of sale1 from Vicente Padilla to Chambers. The deposition of Taylor seems to have been taken to prove the execution of that instrument; and it is contended by the appellee that Taylor’s deposition was read to prove its execution, while the counsel for the appellant says that Taylor’s deposition w,as not read. As the case will be reversed upon other grounds, we deem it unnecessary to consider this point further.
Heither do we esteem the ruling of the court below upon the question of the admissibility of the deposition of Bartlet Sims material to be considered in the view we take of the case.
It is quite apparent that the plaintiff in the court below relied upon the consent given by the Federal Executive of Mexico to the empresarios, Vehlien and Zavala, to colonize the littoral and border leagues, as sufficiently authorizing the location by Vicente Padilla of the land sold to him, anywhere within the territorial limits of those colonial enterprises; and it is also apparent from the instructions given by the judge who tried the case below, to the jury, that he concurred in this view, assenting, however, to the general proposition that the consent of the Federal Executive to the location of the grant within the border or coast leagues was necessary. This view is directly opposed by the opinion of this court in the case of Smith v. Power, 14th Tex. Rep., 146; an opinion by which the appellee confesses that he finds himself confounded, whenever he reads it.
The plaintiff in the court below, Chambers, asked the court to give to the jury the following instructions: “4th. That the formal declaration of the sovereign State of Coahuila and Texas that the Supreme Executive of the Government of Mexico had given consent for the colonization of any littoral or border lands within said State is competent evidence to prove such consent.” This instruction was intended, of course, to direct the attention of the jury to the recitals contained in the contract with Yehlien and Zavala, because those contracts did contain the formal declaration of the authorities of the sovereign State of Coahuila and Texas that the Supreme Executive of the Government of Mexico had consented to the colonization of the very territory or tract of country within which the land in controversy was included. The court gave the instructions, with the following qualification: “ But whether the consent to colonize would embrace the title of plaintiff is a question of fact to be determined by the jury.” This was an unfortunate qualification, because it added to an instruction, which, though true in its precise terms, was not proper to be given under the circumstances of the case—another proposition which is clearly erroneous. It was the duty of the court to tell the jury, as matter of law, that the consent to colonize did not have the effect to dispense with the consent of the Federal Government to the location by Yiccnte Padilla.
The counsel for the defendant below asked the court to instruct the jury as follows : “ 17th. That recitals in a grant or contract with Yehlien and Zavala are not evidence in a suit between the parties, they being strangers to such contract.” The court refused to give this charge.
The counsel for the defendant below then asked, in immediate connection with the foregoing, the following instruction; “ 18th.
We have considered the effect which, in view of the former decisions which have already been referred to, ought to be given to the approbation of the title of Vicente Padilla by the Governor, Vidaurri, on the 17th of June, A. D. 1834. It is argued by the appellee that by the decree of the 26th of March, A. D. 1834, the Congress of the State of Coahuila and Texas undertook to repeal, and did repeal, the former laws in relation to the colonization of the public lands, and assumed the right to sell all the public lands without exception; and that, although such legislation was in contravention of the 4th article of the national colonization law of the 18th of August, 1824, it was to he respected until declared to be null by the Rational Congress.
From these propositions the consequence is deduced (by the appellee) that the approbation of the title of Vicente Padilla, by the Governor, after the repeal of the former laws of the State relating to the border and littoral leagues, was equiva-1 lent to a grant made at the time of such approbation; and the case of Wood v. McKinney (not yet reported) is cited, in which this court decided that a subsequent confirmation by the Governor of a title extended to the widow of one Rafael Manchóla, by virtue of a concession to the said Rafael Manchóla, con
We do not deem it necessary to discuss the questions which are made in the case, arising out of the question of fact whether the land in controversy is embraced within the border leagues or not. The land is clearly within the littoral leagues. The proper mode of determining the limits of the twenty border leagues is a question concerning which the parties are at issue, but to discuss it now might perhaps be without effect upon the 'future of the case, and we therefore think proper to waive the discussion. Because of the errors in the judgment of the court below, which are pointed out in the opinion, the judgment is reversed and the cause remanded.
Reversed and remanded.