Wood v. Welder , 42 Tex. 396 ( 1874 )

Gould, J.

In December,. 1862, appellant brought two suits of trespass to try title in the District Court of San Patricio county, in each of which he sought to recover six hundred and forty acres of land of appellee. Subsequently the two suits appear to have been consolidated and the venue changed to Heuces county. In April, 1869, by an amended petition, various other tracts of land were embraced in the suit, the whole forming one body of land containing six thousand seven hundred and eighty acres, described in the amended petition by giving the boundaries of the entire tract. The pleas of defendant were not guilty, and limitations of three, five and ten years. The plaintiffs title was satisfactorily proven by patents mostly in his own name, and dated in 1869, and as to two tract by patents to other parties with proper conveyance down to himself; but as to two tracts of three hundred and twenty acres each, patented to Robert Montgomery, his evidence of-title was excluded. That evidence consisted of a certified copy of the six hundred and forty acre land warrant or certificate granted to George C. Hatch, assignee of Robert Montgomery —a transfer of said certificate to himself, made by Samuel S. Hatch, purporting to act as the agent of George C. Hatch, dated December 30th, 1867, and a power of attorney from George C. Hatch to Lemuel S. Hatch, dated August 20th,-1868. The exclusion of these papers is one of the errors assigned.

In support of his defense of limitation, but not as evidence of title, the defendant was allowed to show an eleven league grant from the State of Ooahuila and Texas, to James Power and James Hewitson, five and a half leagues of which, lying within the ten littoral leagues, covered the land sued for, there being no evidence of the consent of the Federal Executive to the grant. For the same purpose he was allowed to read in e.vi dence a certified copy, from the records of Refugio county, of a testimonio of this grant, appearing by its indorsements to have been recorded in that county on May, 14th, 1840, but exhibiting no authentication for record. There was a verdict and judgment for the defendant, from which the plaintiff Wood appeals.

Counsel for appellee seek to reopen the question of the validity of the grant to Power and Hewitson, and refer to the case of Trevinio v. Cavasos, 35 Texas, 133, as authority for overruling numerous decisions of this court made many years since, to the effect that the consent of the Federal Executive was essential to the validity of grants of land of the character of the present, within the border and coast leagues, and adjudging the invalidity of the very title they would now set up. (Plummer v. Power, 29 Texas, 6; Lambert v. Wier, 27 Texas, 319; Smith v. Power, 23 Texas, 30; Smith v. Power, 14 Texas, 146.)

Sixteen years have passed since this court, speaking of this grant and saying that it was void, adds: “ A series of decisions, “ continued almost from the organization of this court down to “ the present time, thus settling the construction of the local “ law, upon which the titles to real property in the oldest and “ most densely peopled portions of the State so largely depend, “ must he regarded as emphatically the law of the State.” (Smith v. Power, 23 Texas, 32.) We remark of the case of Trevinio v. Cavasos, that the title in question emanated from the State of Tamaulipas and may possibly be distinguishable from similar titles from the State of Coahuila and Texas, so often pronounced invalid by this court. But at all events we regard the question as long since finally settled.

We do not think the testimonio was properly recorded so as to support the five years’ limitation. The facts are identical with those discussed in the case of Lambert v. Wier (27 Texas), where the opinion is intimated, though no decision was made on the point, that the record was without authority. It was said in that case that since the case of Titus v. Kimbro, 18 Texas, the general rule has been acted on, that a testimonio is not admissible in evidence without proof of its execution. In the later case of Hatchett v. Conner, Justice Coke says: “ It is well settled that the execution of a testimonio of title “ must be proved before it is admissible in evidence.” (30 Texas, 108. See also Word v. McKinney, 25 Texas, 258; Paschal v. Perez, 7 Texas, 338; DeLeon v. White, 9 Texas, 600).

We think it would be to depart from the policy that prompted these rulings, to hold, that this testimonio was properly recorded without authentication. The 2d Section of the Act of January 19th, 1869, authorizing the admission to record of “ copies of all deeds where the originals remain in the public “ archives, and were executed in conformity with the law exist- “ ing at their dates ” (Paschal’s Digest, Article 4984), was to some extent discussed in the opinion in Lambert v. Wier, where it was said that its “ phraseology seemed to indicate “ that it was intended thereby to provide for the record of “ copies of instruments then remaining in the public archives, “ and which should be authenticated by the certificate of the “officers then in charge of them.” The case of Holliday v. Cromwell (26 Texas, 193) is to the same effect, and also calls attention to the first section of the same act, which requires the certificate of “ the acknowledgment in proof to be made upon “ such instrument and become a part of the record.” In the face of this requirement, we do not see anything in the mere lapse of time since the record was made, raising a presumption that the instrument was properly proven for record.

We regard the question of the effect of Section 43, Article XII. of the Constitution of the State, declaring the suspension of statutes of limitation of civil suits from January 28th, 1861, until the acceptance of the Constitution by the Congress of the United States, as now too well settled by adjudications of this court, and as having been too long acted on, to be now disturbed, (Bender v. Crawford, 33 Texas, 745; Moseley v. Lee, 37 Texas, 480; Bentinck v. Franklin, 38 Texas 458.)

We see no such manifest error in the decisions referred to, as would justify us in reopening the question of either the constructiou or validity of that section of the Constitution. If' there is anything in the Constitution of the United States that sustains the people of a State in their sovereign capacity from declaring the effect of a state of war, in suspending the statutes of limitation, it has not yet been so adjudicated, so far as we are advised, by the courts of the United States, nor has it yet been made to appear to our satisfaction.

The"finding of the jury cannot be supported under the limitation of ten years. According to defendant’s own statements on the stand, his possession began in February or June, 1852. Less than ten years had elapsed, "when, on January 28, 1861, the suspension of statutes of limitation took effect.

We see no error in the exclusion of plaintiff’s evidence of title to the two three hundred and twenty acres patented to Robert Montgomery. The power of attorney was dated some seven months after the execution of the transfer which it is offered to support; in its terms it makes no reference, either to the transfer, or by specific designation, to the particular certificate or bond. In the absence of other evidence connecting the power of attorney with the transfer, we think the papers offered were correctly excluded by the court.

This failure on the part of plaintiff to make out title to part of the land claimed, that part being distinguishable, by the description given in his pleadings, from the balance of the land claimed, only by the name of the party to whom it was patented, and the number of acres, and not by field-notes given, suggests the question,’ whether having so failed, the jury had any data by which they could have found for him for the balance. Looking at the entire description given, we cannot say that a verdict for plaintiff for the land claimed, less the two tracts patented to Montgomery, would not have been, sufficiently certain. In this connection it may be remarked, that if the case were otherwise in a condition to be affirmed on the ground that the defense of limitation was made out, yet it clearly could not be so affirmed as to two tracts of land granted to the heirs of Patrick Kevin and Thomas Am on, patented in 1868. There was no evidence of the date of the location or survey of these tracts, and in the absence of such evidence, limitation would only run from the time of patenting. (Plummer v. Power, 29 Texas, 6.) There was nothing in defendant’s pleadings to distinguish these two tracts from the balance,- and unless the plaintiff’s description by reference to the patents was sufficient for that purpose, the same difficulty would present itself as to affirming the entire case on the defense of limitations.

The judgment is reversed and the cause remanded.