Ryan v. Jackson , 11 Tex. 391 ( 1854 )

Wheeler, J.

This was an action of trespass to try title, brought by the appellees against the appellant Ryan, in the county of Polk, on the 17th of July, 1847. The defendant pleaded “ not guilty,” and the statute of limitations. After repeated continuances, the other appellant, McKim, was permitted to become a party defendant, and pleaded “not guilty,” title in himself, and limitation. After further continuances, the defendants pleaded to the jurisdiction of the Court in the county of Polk, averring that they do not possess or claim any part of the land claimed by the plaintiffs, as lying within the county of Polk; but the land claimed and possessed by them, lies entirely within the limits of the county of Trinity, formerly a part of Houston county. On motion of the plaintiffs, the plea to the jurisdiction was striken out. It appears, from a bill of exceptions in the record, that “ the plaintiffs offered in evidence a certified transcript, from “the Land Office, of a Spanish title to De la Garza, for five “ leagues of land; also, a transcript of a power of attorney, “ from De la Garza to Pierre Blanehet; also, a deed from “ Pierre Blanehet; also, a receipt from Miles for government ■“ dues,” (all of which are referred to as contained in the statement of facts,) “to the reading of all of which the defend- “ ant objected, but the Court overruled the objections, and ■“ allowed the papers to be read ; to which the defendant ex- “ cepts. The defendant offered in evidence a certified copy “ of the survey for him as assignee of Polly Ryan, also a “ certified copy of her certificate. He also offered to prove •“ that the condition of cultivating the land within six years “ and setting up permanent land marks, had not Been per- “ formedto which the plaintiffs objected, and their objections were sustained by the Court.

The title under which the plaintiffs claimed, the copy of which was given in evidence, was issued by the Alcalde of the “jurisdiction of Liberty,” on the fifth day of July, 1834, by virtue of a concession for five leagues, made by the Governor of the Staté of Coahuila and Texas, in October, 1830,. to Augustin Martinez De la Garza, as a purchaser under the 24th Article of the Colonization Law of the 24th of March, 1825. The power of attorney, from Garza to Blanchet, bore-date on the 18th day of March, 1833; and empowered Blanchet to apply for and obtain the title and possession of the land conceded ; h-e designating the land and subjecting himself to the obligations and requirements of the law; and having done so, to sell and dispose- of the land at pleasure. Under this power, Blanchet made the sale, under which the plaintiffs claim the league in question, in 1839, The plaintiff's gave in evidence a survey of the land made by order of the Court in April, 1853, from which it appeared that a part of the league of land, sited for, was in the county of Polk, and a part in Trinity county. One Kitty Ryan was the only person then living on the land. One Hornsby had a part of his field on it, but acknowledged that he held under the plaintiffs. The certificate, referred to in the bill- of exceptions as having been offered in evidence by the defendant, was a first class headright certificate, issued in March, 1838; the survey thereupon was made in- April of the same" year. The defendant gave in evidence a patent for the land issued on the 29tb day of October, 1845, to the defendant, McKim-, as assignee of Ryan. He also proved that Polly Ryan went to live upon the land, in 1843, but removed therefrom in about a year;. that her son, James Ryan, moved there- with her in 1843 ; that he died in about a year thereafter, and that Kitty Ryan-was bis widow; that the defendant McKim “ got JamesMcKim to go there,.” and that Kitty .Ryan has lived there ever since.

The defendant’s attorney asked of the Court several instructions, among which were the following, which were refused :

“ If the purchase money was not paid in three, four and five “ years, the land was forfeited upon the failure of either pay- “ ment by the time required.” “ The payment and receipt of “ the money after the time it was due, could not save the title.”

“A purchaser under decree 16 of Coahuila and Texas, had “ no authority to sell until he had proved his title.”

Defendants ask the Court “ to give the jury in charge Ar- “ tides 24, 27, 28, and 22 of decree 16, or Colonization Law “ of 24th March, 1825.”

There was a verdict and judgment for the plaintiffs, and the defendants appealed.

The objections to the judgment, urged on behalf of the appellants, relate, 1st. To the jurisdiction of the Court. 2nd. The admissibility of the plaintiffs’ evidence of title, and its legal effect. 3d. The rejection of evidence offered by the defendants. And 4th. The refusal of instructions asked by them.

The plea to the jurisdiction of the Court was rightly rejected. It was pleaded after the defendants had answered fully to the merits, and had thereby submitted to the jurisdiction of the Court in the county of Polk. It was then too late to plead to the jurisdiction, matters merely in abatement of the suit. Moreover, the statute authorizes the plaintiff to bring suit in the county “ where the land or a part thereof is situated.” (Hart. Dig. Art. 667.) The plea did not controvert the fact that the land, for the recovery of which the suit was brought, or a part thereof, was situated in that county. It did not negative the existence of the facts necessary to give the Court jurisdiction; and must have been held insufficient, though it had been pleaded in time. But, it appeared upon the trial, that a part of the land was situated in the county in which the suit was brought, and there was, therefore, in point of fact, no well founded objection to the jurisdiction of the Court.

The objections now urged to the admissibility of the plaintiffs’ evidence of title, do not appear to have been taken, nor do the defendants appear to have made known the grounds of their objection to the evidence at the trial. And nothing is better settled, than that a judgment will not be reversed upon objections of the character of the present, .first taken in the appellate Court. A party objecting to written evidence, for any cause not going to its relevancy or competency, but only to the manner of its authentication or proof, must specially assign the grounds of his objection at the trial: for, the party, offering the evidence, might then have it in his power to meet and obviate the objections, by other evidence; and, moreover, the Court, as has been said, in deciding upon questions arising at the trial, is not bound to do more than respond to the questions raised, in the terms in which they are propounded. (5 Tex. R. 467; 8 Id. 58, 162; 9 Id. 97 ; 10 Id. 520.)

The defendants objected generally to all the plaintiffs’ written evidence. The objection was of that indiscriminate and sweeping character, which subjects it to the observation and ruling of this Court in the case of Houston v. Perry and Williams, (5 Tex. R.,) and it is unnecessary to notice the several objections, now first urged to the admissibility of the evidence introduced by the plaintiffs, which do not bring in question its relevancy or competency, but only the manner of its authentication. It is a sufficient answer to these objections, that they were not taken at the trial.

The objections, urged to the effect given to the plaintiffs’ evidence, or to the validity of his title, require notice. And it is objected, that the power of attorney from Garza to Blancliet, evidences a sale, which the former could not make until after he had obtained the final title.

If it be conceded that the power of attorney in question is evidence of a sale, it seems to be sanctioned by the 27th Article of the law, which declares that “ those who have acquir- “ ed lands by purchase, can alienate the same at any time, “ provided the successor obligates himself to cultivate the “ same within the same term as was obligatory on the original “ proprietor.” We are aware of no provision of law, which forbade the grantee, who acquired by purchase under the 24th Article of the law of the 24th of March, 1825, to sell so soon as he had obtained his concession, and before the final title was issued. It is a right which would appertain to the grantee on general principles. The right of property in the concession includes the power of disposition, subject only to such-restrictions and qualifications as may be- imposed by law. Where the law imposes no restriction, the power is absolute. And there does not appear to have been any restriction upon-the power of alienation imposed by the law in this case, except that contained in the 27th Article, that the purchaser should be obliged to perform the condition of cultivation.

The objection to the title on account of the non-performance of the conditions annexed to it, is answered by the opinion of the Court in cases heretofore decided, and will not require further notice than a reference to those decisions. (Hancock v. McKinney, 7 Tex. R.; Murchison v. Hall, 10 Id. 461; Swift v. Herrera, 9 Id. 263.)

It is suggested that the land in question did not lie within the municipality of Liberty, and consequently that it was not within the jurisdiction of the Alcalde who extended the title. But this suggestion is not supported by the record. It does not appear by any evidence in the record or by any law to which we-have been referred, that the municipality of Liberty was comprised within the same boundaries as the county of Liberty ; or that the land in question was not within the limits of that municipality. And if the Alcalde had exceeded his jurisdiction, it devolved on the defendants to show it. The presumption is that the officer, in issuing the title, acted' upon a subject within his jurisdiction, until the contrary appears.

The certificate and survey thereupon, offered in evidence by the defendants, were rightly rejected, for the reason that the certificate was not accompanied by evidence of its having been* recommended as genuine. Ifc did not appear that the patent introduced in evidence, was issued upon this certificate; and there was no evidence of its genuineness. The object of the introduction of the evidence, was to establish color of title in the defendants, in support of their plea of the statute of limitations. But if the evidence had been admitted, there was not such possession as was necessary to make good the defence of limitation. The title, or color of title was averred to be in " the defendant McKim. He was not in possession ¡ and the defendants failed to prove that his co-defendant, who was the only person in possession a sufficient time to complete the statutory bar, held the possession under him or in his right. If, therefore, the evidence had been admitted, it could not have changed the result. But there was no error in its rejection, for the reason before stated.

Nor was there error in refusing to give in charge to the jury, the several Articles of the Colonization Law, referred to by their numbers, in the instruction asked. Apart from the statute, which directs in what manner instructions may be asked, (Hart. Dig. Art. 754,) and does not sanction the mode proposed, the manner of asking the instructions, in this instance, was novel and unprecedented; and was calculated to create the apprehension that counsel desired rather to bewilder and mislead, than to enlighten the jury as to their duty. With equal propriety might counsel have asked of the Court to give in charge to the jury the entire law, or volume of laws, in which the provisions, referred to, were contained.

It only remains to notice one other objection to the judgment, that is, that the plaintiffs failed to deraign their title to twenty acres of the land for which they had judgment. And it is true, that in the conveyance by Blanchet, of the league of land in controversy, there was a reservation, in the deed, of twenty acres ; yet, by the judgment, the plaintiffs recovered the entire league. This, doubtless, was an oversight; the attention of the Court not having been called to the fact of the reservation. It will require that the judgment be so reformed as to conform to the evidence ; and such judgment will be here rendered as the Court ought to have rendered.

Judgment re-formed.