Word v. McKinney

25 Tex. 258 | Tex. | 1860

Wheeler, C. J.

On the question of the alleged abandonment of the country and alienage of the plaintiff, there is nothing in this case to distinguish it from the cases "heretofore decided by this court, in which that defence was held to he unavailing. (Hardy v. De Leon, 5 Tex. R., 211; Kilpatrick v. Sisneros, 23 Tex. R., 113, decided at the Galveston Session of 1859.)

It is insisted, for the appellants, that the title of the plaintiff was issued without the authority of law, and is void; and that no validity was imparted to it by the act of confirmation by the governor, of the 25th of April, 1835.

It may well be doubted whether the concession to Rafael Manchóla was an authority to the alcalde to issue the title of possession to his widow. But it is not perceived that it was not entirely competent for the governor to validate the title thus issued, by his subsequent ratification of the action of the alcalde, and confirmation of the title, though it had been issued without authority. It would seem too plain to admit of question, that the power to grant must include the power to confirm a title. It was the constant practice of the authorities entrusted with the granting of lands under the former government of the country, to perfect incipient or inchoate titles by a final act of confirmation. It can not be doubted that the governor might have granted the land to Madam Manchóla; and if so, it is difficult to comprehend upon what principle his power to confirm the title already issued, though invalid for the want of a previous authority in the officer, can be denied. It is a familiar principle in the law of agency, that a subsequent ratification is as effectual to give validity to the act done, as an authority previously confirmed. It is not perceived why that principle should not apply to a case like the present, when the exercise of the granting power is not ‘restricted to the observance of any prescribed formality which is wanting. If it be not a question of compliance with any requisite formality, but of power in the officer, it can not be denied that the power which can grant can confirm a title.

But the admissibility in evidence of the act of confirmation was objected to on the ground that there was no evidence of its genuineness, and it is proper to decide upon its admissibility in evidence before pronouncing definitively upon its legal effect. The question is, whether, coming from the possession of the interested party, the instrument proves itself by its mere production in court.

There is no doubt that it would have been received in evidence in the courts before the change of government; and if it were an entirely new question in this court, it might be contended, with much force, that oar courts should -officially take notice of the authentic acts of the authorities of the former government. But the question was considered by this court at an early day, and the opinion was entertained, and has been constantly acted on in practice, that, in order to the prevention of frauds, some evidence ought to be produced of the genuineness of such instruments before they are received in evidence." Thus, in Paschal v. Perez, (7 Tex. R., 338,) in treating of the admissibility of a testimonio or copy of an instrument which remains an archive of a now foreign government, as is the case here, Chief Justice Hemphill said: “If testimonios or copies are admitted without restrictions, a wide door is opened for the admission of fraudulent or forged titles. Their falsity and fictitious character cannot be tested by original records or evidence within the limits of our own jurisdiction.” (Id., 364.) Again, it is said: “ Had the original testimonio, or second original as it is sometimes called, been produced, and the signature proved, it would have been, of itself, at least prima facie evidence of title.” (Id., 363.) It was held in the same case, and again in the case of Edward v. James, (Id., 372,) that the testimonio, or second original title to lands, was within the provision of the registry act of 1836, and might legally be admitted to record, upon proof of the hand-writing of the signer. In DeLeon v. White, (9 Tex. R., 600,) proof of the execution of the testimonio was treated as being requisite. The opinion appears to have been entertained at an early day, and to have been constantly acted on in practice, that some extrinsic evidence of genuineness ought to be produced to admit these instruments in evidence. And in all the numerous cases which have come before this court for adjudication, some such evidence has been produced. In no case has it been held that the instrument proves itself, without the aid of any extrinsic circumstance tending to prove its genuineness. If, in any case, such evidence should be required, it should be the present. It is not the case of a concession addressed to an officer, whose province it was to pass upon its genuineness, and to act upon it by extending the title It derives no aid from a recognition by any other officer of the government. It is itself the final act imparting validity to the title. It does not come from the official custody of any officer of the present government, but from the possession of the interested party, more than twenty years after it purports to have issued from the office of a since foreign government, where the original is supposed to remain. . There is no evidence of its ever having been deposited, subject to examination, in any office of this government. If there is any case in which, in order to guard against frauds, some evidence of the genuineness of the document ought to be required, it is the case of an instrument offered under circumstances like the present. And we think the views which the court has hitherto entertained upon the question, and the uniform practice conforming to those views, a sufficient warrant for holding that such evidence ought to be produced. There is less reason for requiring it where the original is an archive of the general land office. But no case has come under my observation where the party relying upon the testimonio, instead of a land office copy of the original, has not seen proper to prove the execution of the testimonio, though the protocol was an archive of that office. Whether that be necessary, may be decided when the question is presented. For the present, it will suffice to say that where the original is an archive of a foreign government, and there is no means of testing its genuineness, or the verity of the proffered testimonio, by any record or other evidence within the limits of our own jurisdiction, we think it' safer to adhere to the practice which has heretofore obtained, and require the production of some extrinsic evidence of the execution or genuineness of the instrument. We are, therefore, of the opinion that the court erred in overruling the objection to the admission of the instrument in evidence. As this case must be remanded for a hew trial, it may be upon other. additional evidence to that produced upon the-former trial, and it may not become necessary, we think proper to abstain for the present from the expression of an opinion upon the other questions in the case.

The judgment is reversed and the cause remanded,

Reversed and remanded.