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White v. Burnley/Opinion of the Court

THIS case was brought up, by writ of error, from the District Court of the United States for the district of Texas.

It was an action of trespass, to try title brought by Burnley against the plaintiffs in error, in the District Court of the United States for the district of Texas, to recover a league of land, situated in Calhoun county, of that State.

Upon the trial, Burnley traced his title in this manner:

1. A document purporting to be the original testimonio, in Spanish, of a colonial grant in the colony of Martin De Leon, made by Fernando De Leon, commissioner, to one Benito Morales. The date of it was 11th April, 1835.

2. A deed from Benito Morales to Leonardo Manso, dated 27th May, 1835.

3. Conveyance from Manso to Peter W. Grayson, dated 6th April, 1836. This deed was executed in the parish of St. Landry, Louisiana, before Pierre Labiche, a notary of that place.

4. Conveyance from the executors of Grayson to Burnley and Jones, dated 22d of May, 1844.

The second and fourth of these deeds were given in evidence without objection. The first and third were objected to.

The objection to the original grant constituted the subject of the first bill of exceptions. The defendants, by their counsel, objected to its admission, on the ground that the want of authority in the commissioner of the colony to make the grant, appears upon the face of the grant itself, viz: that it appears therein that it includes more than one sitio or league of land, which was the limit of his authority; and thereupon, the court expressing a willingness to hear testimony as to law and usage on this subject, evidence was produced on both sides, when the court allowed the grant to be read in evidence to the jury. To this ruling the defendants excepted.

The plaintiff then proceeded with the deduction of his title, and read the deed from Morales to Manso, without objection. The next step in his title was the deed from Manso to Grayson, which was executed in Louisiana. What was offered in evidence purported to be a copy taken from a notary's books, and began in this way:

'Be it known that this day, before me, Pierre Labiche, notary public in and for the parish of St. Landry, duly commissioned and sworn, personally came and appeared Leonardo Manso, citizen of the Republic of Nexico, who declared,' & c., &c. This deed was certified in such a manner as to induce the counsel for the defendants to agree as follows:

'I admit the sufficiency of the certificates to the foregoing deed as conformably to the act of Congress, March 27th, 1804, waiving want of notary's seal, &c.; but do not admit that the deed could be certified under that law.

'GEORGE W. PASCHALL,

'ALLEN S. HALE,

'Attorneys for Reuss S. Bendewald.'

There was also offered the deposition of a witness that he had examined the deed on file, a certified copy of which was paraphed by him; that he was acquainted with the notary's handwriting, &c., &c.

To the admission of which copy of said deed of conveyance the defendants by their counsel objected, on the following grounds, that is to say—

First. Because it was not executed in accordance with the then existing law of Texas in this, to wit:

1. That it did not appear that it was executed before any notary or other officer authorized by law to take and authenticate public instruments.

2. That it does not appear that the foreign notary, before whom it purports to have been passed and executed, made out and delivered to the interested party at the time a testimonio, or second original, as by the then existing law was required.

Secondly. Because the protocol or first original should be produced, or satisfactorily accounted for, before said copy, which is secondary evidence, can be admitted.

Thirdly. Because, if any testimonio or second original was ever in fact issued, its absence is not accounted for.

Fourthly. Because the showing that the protocol, or first original, is in the office of a notary in the parish of St. Landry, in the State of Louisiana, is not satisfactorily accounting for the non-production of the original.

Fifthly. Because the notary's office in the State of Louisiana is not, quoad the original paper, a public office within the meaning of the act of Congress of March 27, 1804, entitled 'An act supplementary to an act entitled 'An act to prescribe the mode in which the public acts, records, and judicial proceedings, in each State, shall be authenticated, so as to take effect in every other State."

Sixthly. Because the notary's office in the State of Louisiana is not, quoad the original paper, a public office within the true intent and meaning of the rule of the common law.

Seventhly. Because it is not proven in accordance with the rule and principle of the common law, in this, to wit:

1. That the witness, Guy H. Bell, does not prove that it is an examined copy, compared by him with the original.

2. That the witness, Guy H. Bell, does not state his means of knowledge of the handwriting of the witness, John Simons, nor that he was acquainted with his handwriting.

3. That the said witness, Guy H. Bell, does not state his means of knowledge of the handwriting of Pierre Labiche, the notary; and

4. That all proof relating to the handwriting of the notary, Pierre Labiche, is irrelevant, inasmuch as he was not an instrumental, assisting, or subscribing witness, to said original paper.

Eighthly. And to the deed itself it was further objected, that it has neither instrumental nor assisting witnesses, as by the law of Texas, in force at the time, was required.

Ninthly. That the deed of conveyance shows upon its face that it was executed upon the 6th of April, in the year 1836, by Leonardo Manso, reciting therein that he was a citizen of the Republic of Mexico, to Peter W. Grayson, reciting therein that he was a citizen of Texas, late a portion of said Republic of Mexico; and the fact being judicially known to the court that said Republic of Mexico and said Republic of Texas were then engaged in an open and public war with each other, the said deed of conveyance was and is therefore void.

But the court allowed the deed to be read, and this constituted the defendant's second bill of exception.

The plaintiff then, proceeding with his title, proved the will of Peter W. Grayson, deceased, with the probate thereof, and the grant of letters testamentary to the executors, who conveyed to Burnley and Jones the undivided three-fourths interest in and to all the lands conveyed by Leonardo Manso to Grayson. A deed from Jones to Burnley completed the plaintiff's title.

The third bill of exception by the defendant related to the introduction of certain depositions de bene esse by the plaintiff, which need not be further noticed.

The plaintiff then rested.

The defendants then offered a vast mass of evidence, which it is impossible to specify minutely. Their line of defence was this:

1. That the grant contained within its alleged boundaries a much greater amount of land than the grant called for, viz: fifty millions and upwards of square varas, being over two leagues, instead of one; and that there was not over a laber of marsh and water on the tract.

2. That the empresario De Leon had no right to grant the locus in quo, because it was not within the jurisdiction of his empresa, and because he, De Leon, had never had the consent of the Federal Executive to his colonizing the coast leagues.

Upon this point, the plaintiff offered rebutting evidence.

3. That White had resided upon his own head right ever since 1842, had laid off a town there, and the other defendants held under him.

The defendants offered other matters in defence, which will be sufficiently explained by the rulings of the court below upon those points which formed the basis of the decision of this court. There were twenty-nine prayers made to the court by the counsel for the plaintiff, all of which were granted; twenty-four prayers by the counsel for the defendants, which were refused, and nine instructions given to the jury by the court, at the instance of the defendants. Instead of inserting all this voluminous matter, the reporter prefers to take up in succession the points decided by this court, and to show what were the rulings of the court below or refusals upon those points.

The first proposition decided by this court is the following, viz:

'The land granted was alleged to be within the empresario contract of De Leon. After proof that many of the documents upon the subject were destroyed in the revolution, the court left it to the jury to decide whether or not the land was thus situated. This ruling was correct.'

Upon this point, the rulings of the court below were as follows:

The court refused the following instructions, asked by the defendants, viz:

3d. That the official acts of the various authorities of Coahuila and Texas, and of the Vice President of Mexico, show that the controversy between Power and Hewetson and De Leon, as empresarios, only related to such conflict as existed between the calls of their respective grants, between the Nueces and Lavaca rivers, and the documents showing the decisions of the respective Governments in relation to their controversy being Alaman's dispatch of December 23d, 1831, and Letona's dispatch of March 10th, 1832, are to be understood in no other way than as intending to place De Leon in possession of such lands as were embraced within his two contracts, (the first of the date of April 18th, 1824, the other his augmentation contract of April 30th, 1829,) and said dispatches and the law did not authorize the political chief of the department of Bexar to enlarge or extend those grants, or embrace within De Leon's colony any portion of the coast leagues not properly embraced within his said contracts; and any putting De Leon in possession beyond this, would have been without authority, and would not change or enlarge the true boundaries of De Leon's empresa.

4th. That after the national colonization decree of August 18th, 1824, and the State colonization decree of March 24th, 1825, and the instructions to the commissioners of the 4th September, 1827, the State had no right to extend to De Leon the right to colonize any portion of the coast leagues without the previous consent of the Federal Executive of Mexico, nor could the commissioners of colonies give possession to any colonist settled, or intending to settle, within the ten littoral leagues, unless the persons interested had presented the commissioner a special order of Government, wherein the approbation of the National Government to such grant had been manifested. And thereupon, if the jury believe, from the evidence, that De Leon had not the consent of the Federal Executive to colonize below the calls of his grant of 1824, as defined by himself in his letter of February 1st, 1825, and agreed to by the Government of Coahuila and Texas, and as shown by the decree of said Government through Gonzales on the 6th of October, 1825, do not embrace the lands in controversy, then there was no authority in the commissioner to make the grant, unless the plaintiff has affirmatively proven a special order of the Government, wherein the approbation of the National Government to make the grant had been manifested; and in the absence of such proof, the jury will find for the defendant.

5th. That the report of the Government of Coahuila and Texas transmitted to the President to Mexico, dated October 2d, 1826, in which it is stated that the littoral leagues lying between the Guadalupe and Lavaca rivers were vacant, is prima facie evidence of the truth, and the contrary can only be established by proving that the lands so comprehended were the property of individuals, corporations, or towns not subject to colonization.

6th. That the consent of the Republic of Mexico in favor of Power and Hewetson's colonizing said littoral leagues between the Guadalupe and Lavaca rivers, expressed in his dispatch of the 22d April, 1828, and the contract between Power and Hewetson, and the Government of Coahuila and Texas on the 11th of June, 1828, gave to Power and Hewetson the legal and exclusive right to colonize said lands, except so far as they were already the property of individuals, corporations, or towns. And if De Leon's contract of 18th April, 1824, conflicted with any portion of said lands embraced within Power and Hewetson's contract of April 22d, 1828, the law only gave him preference to the extent of said conflict, and the political chief of the Department of Bexar could not divest Power and Hewetson's right beyond this conflict, nor vest it in De Leon. And therefore it will be the duty of the jury to ascertain from the evidence the lower boundary of De Leon's contract or grant of 1824; and if they find that the land in controversy was below said lower line, then there was no power in the commissioner of De Leon's colony to make the grant, and they must find for the defendants.

But the court gave the following instructions asked by the defendants, viz:

1. That if the jury believe, from the evidence, that the land in controversy was not embraced within the boundaries of Martin De Leon's colonial contracts of April 18th, 1824, or of his augmentation contract of April 30th, 1829, then there was no authority in the commissioner of De Leon's colony to extend the title, and it is null and void.

2. That, in determining the boundaries specified in these contracts, the jury will examine the calls in said contracts and documents themselves, and then determine for themselves whether the witnesses acquainted with the calls in the grants proved that the land in controversy was without these boundaries; and if so, then they will find for the defendants.

3. That the evidence of the witnesses as to the acts of the political chief of Bexar can only be understood as proving such acts as he could lawfully do; but in so far as it proves acts beyond the authority transmitted to him, and the law arising out of the documentary evidence before the jury, such evidence is to be disregarded.

The court also gave the following instruction asked by the plaintiff:

7th. That if the jury believe from the evidence that there was a controversy between the empresarios Power and Hewetson on one side, and Martin De Leon on the other, each claiming a grant including the land in controversy, and that this controversy was decided by the Supreme Executive of Mexico in favor of De Leon, and that decision was carried into effect by the authorities of the State of Coahuila and Texas, and thereby a boundary assigned to the colony of De Leon which included the land herein sued for, such settlement of the controversy will be received as binding and conclusive, and the grant claimed by plaintiff cannot be held invalid, either for want of the approval of the Supreme Executive authority of Mexico, or as being without the jurisdiction of De Leon's colony.

The second proposition decided by this court was this:

'The fact that the surveyor included more land than was called for, does not avoid the grant. Whatever the State might do to annul it, third parties have no right to consider it void.'

Upon this point, the defendants prayed the court to instruct the jury as follows:

1. That the colonization laws of Coahuila and Texas did not authorize the commissioner of De Leon's colony to extend to Benito Morales a title for more than one league of land, (a league being twenty-five millions of square varas;) and the title being upon its face for fifty millions square varas, it was from the beginning null and void, and gives no right to recover.

2. That even if there was authority of law to include the excess of twenty-five millions square varas in the area, and exclude it from the computation because such excess was covered with salt bays as expressed in the grant, yet if the jury believed from the evidence that the reasons were false, and that there was in fact a great excess of land (over and above twenty-five millions square varas) which was not covered with water or salt bays, the grant was void because of the excess, and the jury will find for the defendants.

But the court refused to give these instructions, and gave to the jury the following instructions, at the instance of the plaintiff:

1. That at the date of the grant under which plaintiff claims, both by the general law and the colonization law, saline bays, extending from the gulf or the large bays, could not properly be included in a grant to a colonist, such bays, though embraced in the lines of the survey, would properly have been deducted from the computation of the area of the grant, and the plaintiff's grant on its face is not invalid on that account.

2. The statement made in the survey contained in plaintiff's grant, that half of the survey was covered with saline bays, is prima facie to be taken as true at that time.

3. Any change which may have taken place since in the country included in the lines of the survey, will not affect the validity of the grant.

4. Although the jury should believe that the grant when surveyed did not contain an entire league covered by saline bays, yet if they believe that the statement in the survey was caused by the mistake or neglect of the surveyor, it will not vitiate the grant; and in order to render the grant invalid on this ground, the jury must believe from the evidence that there was intentional fraud committed by Benito Morales, the grantee.

The third proposition decided by this court is this:

'A grantee having been compelled to leave Texas, there was no evidence of his voluntary and final abandonment of the country. As there was no evidence, the jury could not express an opinion upon the subject.'

Upon this point, the court instructed the jury as follows, at the request of the plaintiff:

11th. That if the jury believe from the evidence that Leonardo Manso was a native Spaniard, who emigrated to Mexico in his youth, and before the revolution by which Mexico was separated from Spain, and adhered to the cause of Mexican independence, and became a citizen of the Republic of Mexico, and then emigrated to and acquired the land in controversy in De Leon's colony, in order that there should have been an ipso facto forfeiture of said land, on the ground of abandonment of the country by said Manso, under the colonization law, it must be proved, to the satisfaction of the jury, that prior to the declaration of independence of Texas, on the 2d of March, 1836, the said Manso abandoned and left the country, and became domiciliated in a foreign country, without the intention of returning to Texas, or any other part of Mexico; and if his leaving the country was intended to be temporary, and with the design of continuing his allegiance as a Mexican citizen, and returning either to Texas or some other part of Mexico, it was no abandonment of the country within the meaning of colonization laws, and did not divest his right to his land.

12th. If the jury believe from the evidence that Manso was forced to leave the country by the public authorities, on account of his being a Gauchapin, and his doing so was not voluntary, it was no abandonment of the country within the meaning of the colonization laws, and did not divest his right to his land.

13th. That the burden of proof is on the defendants, to show a final and complete abandonment of Mexico, prior to the 2d of March, 1836, on the part of Manso, in order that an ipso facto forfeiture of his land under the colonization laws should be made out, and the facts on which it is sought to disfranchise a party, and to divest his title to property, ought to be clearly and conclusively established.

The fourth proposition decided by this court was this:

'Nor was there any evidence which would justify the court in leaving it to the jury to decide whether or not this grantee was an alien enemy when he made a conveyance, he being then a resident of Louisiana. The mere fact of his being a Spaniard was not sufficient for an inference that he was an enemy of Texas. The averment in the deed that he was a citizen of Mexico was not sufficient.'

The ruling of the court below upon this point was follows:

The following instructions were asked by the defendants' counsel:

7th. It appearing on the face of the conveyance from Leonardo Manso to Peter W. Grayson, that it was made on the 6th day of April, A. D. 1836, between the said Manso, a citizen of the Republic of Mexico, and the said Grayson, a citizen of the Republic of Texas, the States of Mexico and Texas being then engaged in an open and public war with each other, the said conveyance is absolutely null and void, and passed no right of property from the grantor to the grantee therein.

8th. That the contract being in relation to land between citizens of countries then at war with each other, the fact that it was made in the United States, a neutral country, does not take the case out of the rule, but it draws after it all the consequences of the laws of war, and is as void as though it had been made in Texas or Mexico.

9th. That the sale from Manso to Grayson being, as expressed in the deed, between citizens of Mexico and Texas, countries then at war with each other, the contract was contrary to the laws of war governing belligerents, was forbidden by the organic law of Texas, the criminal law of England which it had adopted, its public policy, good morals, and the duty of Grayson as a citizen of Texas, and was therefore void.

11th. That if Manso had resided in Texas when the revolution commenced, in 1835, he had the right to make his election, whether he would adhere to his allegiance to Mexico, or adopt the new State of Texas; and the fact of his election is to be determined by his subsequent acts of declaring in the deed that he was a citizen of Mexico, and by his soon after returning to Mexico, and residing permanently there.

12th. That Grayson and those claiming under him in privity of estate, are estopped by the recitals of citizenship in the deed; and no proof of temporary residence in a neutral country, even if it had been made, could be allowed to contradict their own solemn act.

But the court refused to give these instructions, and gave the two following sets, the first being asked by the defendants, and the second by the plaintiffs:

The defendants asked the following, which were granted:

4th. It appearing on the face of the conveyance from Leonardo Manso to Peter W. Grayson, that it was made on the 6th day of April, A. D. 1836, between the said Manso, a citizen of the Republic of Mexico, and the said Grayson, a citizen of the Republic of Texas, the said States of Mexico and Texas being then engaged in open and public war with each other, the said deed of conveyance is absolutely null and void, passed no right of property from the grantor to the grantee therein, unless the jury should find from the evidence that the said Leonardo Manso was, at the time of making said conveyance, domiciled in the State of Louisiana, where said conveyance was executed.

5th. That to constitute a domicil requires an union, or joint operation of act and intention, residence in a particular place with the design of remaining there permanently. In attaining a just conclusion on the question of domicil, the chief point to be considered is the intention to remain in the particular place or country; if it sufficiently appears from the evidence that the said intention of removing from one place to another was to make a permanent settlement at the latter place, or for an indefinite time, that is, without looking to a departure from thence at any future time, when any particular business shall have been accomplished, the person may then be said to be domiciled in the country or place where he is residing; unless, therefore, the jury find from the evidence that Leonardo Manso was residing in the State of Louisiana on the 6th of April, 1836, with the intention to remain there permanently, or for an indefinite time, as above explained, he cannot be said to have been at the time domiciled in Louisiana so as to render the conveyance made by him on that day to Peter W. Grayson, a citizen of Texas, legal and valid.

And the plaintiff asked the following, which were granted:

8th. That if the jury believe from the evidence that Leonardo Manso was a native Spaniard, who emigrated to Mexico in his youth, and before the revolution by which Mexico was separated from Spain, and adhered to the cause of Mexican independence, and became a citizen of the Republic of Mexico, and in the year 1833, or before that time, emigrated to Martin De Leon's colony in Texas, settled in said colony, was received as a colonist and domiciliated therein, and thenceforward until the date of this conveyance remained either in Texas or in Louisiana, without having re-established his domicil in any other part of Mexico, then the said Leonardo Manso was not, up to the date of said deed, an alien enemy to Texas, and his deed to Grayson is not invalid on that ground.

9th. That if Manso's domicil, at the date of his conveyance to Grayson, was either in Texas or Louisiana, and the jury do not believe from the evidence that he had taken up arms or engaged in the contest against Texas, his mere election to consider and calling himself a citizen of Mexico, would not make him an alien enemy, so as to render his said deed invalid on that ground.

The fifth proposition decided by this court is the following:

'Where a deed of land in Texas was executed in Louisiana, and recorded in a notary's books, a copy of it which had been compared with the original by a witness who was acquainted with the handwriting of the notary (being dead) and the subscribing witness, was properly admitted in evidence. It was also admitted as a record of another State.'

The ruling of the court below upon this point was as follows:

The plaintiff asked the court to give the following instructions to the jury, which the court gave, viz:

16th. The conveyance from Manso to Grayson, executed in Louisiana before a notary public in conformity to the law prevailing in civil law countries, does not require further proof of delivery to the party, as the making the agreement before a notary, its reduction to writing, and making a protocol of such writing, includes delivery.

17th. If the jury find from the evidence that the deed from Manso to Grayson was made in Louisiana before a notary public, and was executed by the parties, and left with him to become a record of his office, further evidence of the delivery of the said deed is not necessary.

The last proposition decided by this court was the following:'In order that the statute of limitations shall begin to run, the defendant, claiming under a younger title to land which conflicts in part with an elder title, should have been in actual possession of the part which was overlapped by the elder title.'

Upon this point the court below gave the following instruction to the jury, at the request of the plaintiff.

18th. Though White, and those claiming under him, may have had more than three years' adverse possession on his third of a league claimed in this action, yet if said third of a league survey conflicted in part only with plaintiff's grant, and there was not an actual adverse possession within the interference of the surveys for three years or more before the commencement of this action, the defendants will not be entitled to the bar of the fifteenth section of the act of limitations.

The verdict and judgment were for the plaintiff, and the defendants brought the case to this court by writ of error.

It was submitted on printed argument by Mr. Reagan for the plaintiffs in error, and argued by Mr. Bibb and Mr. Hughes for the defendants. There was also upon that side a brief filed by Mr. Ballinger.

The analysis of the rulings of the court below has occupied so much room, that the points and arguments of counsel must be omitted.

Mr. Justice CATRON delivered the opinion of the court.

This suit was brought and tried in the District Court of Texas, to recover a league of land lying in that State, fronting in part on Matagorda bay, east of the mouth of the Guadalupe river, and purporting to be in Martin De Leon's colony or empresa.

1. The first objection made on the trial, was to the introduction of the grant offered in evidence, on the ground that the land did not lie in the colony, and therefore the officers of the same wanted jurisdiction, and had no power to grant to Benito Morales, under whom Burnley claims. If the premises were true, the conclusion would certainly follow. (McLemore v. Wright, 2 Yerger's Ten. R.)

It is a historical fact, established as such by the decision of the Supreme Court of Texas, in the case of De Leon v. White, (9 Texas R., 598,) that the empresario contract of Martin De Leon was so amended by order of the General Government of Mexico as to include the littoral leagues along the coast of the Mexican gulf, including that portion thereof where the land in dispute lies.

It is not only established by the history of the country; but here, it was also proved by witnesses, after proof had been made to the court, that many of the documents of the empresa had been destroyed by the soldiers of the Texas army during the revolutionary struggle. The court left it to the jury to determine whether the land lay in the empresa of Martin De Leon, and they so found. In doing this, we think there was no error committed as against the defendant.

2. The next question appears on the face of the grant. All the steps leading to the grant, with one exception, are regular.

The quantity of land that the lines of survey include, is equal to two leagues, whereas only one league is called for; and the reason the surveyor gives in his certificate of survey for the excess is, that he included in the survey a bay of the ocean, which was not subject to grant, a quantity equal to a league.

This statement was proved to be untrue-almost entirely. The grant contains two leagues and more of fast land; and for this reason it aws insisted at the trial that it was fraudulent and void. But the court charged the jury to the contrary, with several qualifications. These we deem to have been useless; as our opinion is, that a regular grant (that is, a completed title, made by those exercising the proper political power to grant lands) is not open to this objection, by an opposing claimant setting up a younger title; and we understand, that on this principle the well-considered cases of Hancock v. McKinney, (7 Texas,) and of Swift v. Herrera, (9 Texas,) proceed. Such is the settled doctrine elsewhere. (Overton v. Campbell, 5 Hayw. Ten. R.)

How far the Government of Texas might interefere by 'due course of law,' (that is, by a suit in its name and behalf,) is a question for that Government to decide. Owen v. Rains's Lessee (5 Haywood's Ten. R., 106) is to the effect that it can only be done by suit.

To hold that this grant was void, because the surveyor returned an excess in his survey, without any evidence that the grantee participated in the matter, as is the case here, would be an alarming doctrine through a wide-spread portion of the United States. No instance is recollected where the State has interfered by suit to reform a land patent for excess of quantity. The consideration of more or less of excess, to constitute a prima facie case of fraud, would give a latitude of discretion to the judicial department over the executive and granting power, inconsistent with the independence of the latter in this branch of administration. Under the Spanish and Mexican Governments, the judiciary had no authority to interfere at all in any case. The political department retained to itself all the power to reform or to annul titles.

But where the executive authority intervenes, and calls on the courts of justice to aid 'in the due course of law,' no collision between the two departments can occur.

That a case of excess sufficiently gross could arise to justify a proceeding by suit on the part of the State of Texas, to reform a Spanish grant, we do not doubt. (United States v. Hughes, 11 How., 552.) But the question here is not of reform; it is of original nullity.

What was the condition of Morales's title? He applied for a league of land as a colonist; his petition was granted, and a survey ordered. The surveyor made return of his survey to the commissioner, who in effect exercised the granting power in De Leon's colony. The lines of the survey call for other adjoining tracts, and their corners previously made. On the faith of this survey, the commissioner proceeded to extend the title to Morales. It is probable that no actual survey was made on the ground; and hence it happened that the surveyor's certificate stated that more than one-half of the boundary shown on the plat was covered by water, and not subject to grant. Of this matter, the surveyor and the commissioner, as the judge of land distribution, had jurisdiction; it was their duty to act justly between the Government and the grantee. The commissioner acted by extending the title of possession, and thus yested a full title in Morales. No one at that time had any right to complain, if the Government was content; it has so far acquiesced, and younger grantees are bound by that acquiescence.

There is not the slightest evidence that Morales had any knowledge that the statement made by the surveyor in his certificate of survey was untrue; and therefore the grant as to him is not void, and could only be voidable in part, if it could be reformed at all.

3. Morales conveyed to Manso, who was a citizen of Texas, residing in De Leon's colony when resistance to the Central Government of Mexico was first agitated by the inhabitants of Texas.

All Spaniards were ordered to leave the country by the party which eventually proved successful; and Manso, being a Spaniard, left and went to Louisiana; and it is insisted that this forced removal was an abandonment of the country, and a forfeiture of his land, according to the colonization laws of Coahuila and Texas. Manso took no part in the revolutionary movement, quietly left, and resided in Louisiana from the fall of 1834 up to the time when he conveyed to Grayson, in April, 1836. Such was the only proof of his acts, so far as they affect this controversy.

The evidence did not warrant any charge from the court on the ground of abandonment of the country by Manso. The case of Hardy v. De Leon (5 Texas R.) is conclusive on this ground of defence. To hold otherwise, would violate the entire doctrine laid down in the case of McMullin v. Hodge, (5 Texas R.)

There must be some evidence on which a charge to the jury is founded, otherwise it cannot be lawfully given. As there was no evidence from which an abandonment could be found by the jury, an instruction on the subject could only mislead. (Chirac et al. v. Reinecka, 2 Pet., 625.)

In the next place, we are of in Texas on the day of the declaration evidence introduced on the trial below which could have warranted the opinion that there was no to the jury destructive of Grayson's title, on the supposition that Manso was an alien enemy at the time of conveying, and therefore had no capacity to convey.

When one nation is at war with another nation, all the subjects or citizens of the one are deemed in hostility to the subjects or citizens of the other; they are personally at war with each other, and have no capacity to contract. Here Manso was a citizen of Coahuila and Texas, when he was forced to leave his country, and continued away, subject to the same coercion, until after independence was declared by Texas, March 2d, 1836. The Constitution of Texas was adopted March 17th, 1836; by the tenth section of which it is provided, that 'all persons (Africans, &c., excepted) who were residing in Texas on the day of the declaration of independence shall be considered citizens of the Republic, and entitled to all the privileges of such.' Manso conveyed to Grayson in April, afterwards. There was a suspicion (he being a Spaniard) that he sympathized with the federal authorities of Mexico, and might take sides with the enemies of Texas; but this record affords no proof that he did so, up to the time when he conveyed to Grayson; nor is there any proof showing that he had abandoned his domicil in Texas, which he was forced to leave some sixteen months before independence was declared; nor is it of any consequence, whether he did, or did not, become domiciled in Louisiana, if he was not an alien enemy to the Republic of Texas, and to her citizen Grayson, the grantee; as an alien friend can convey his lands situate in a foreign Government; and that the title is defeasible, is nothing to the purpose in this case.

It is again insisted that Manso, after he conveyed to Grayson, removed to Mexico, and that this must be taken as evidence that he was an alien enemy when independence was declared. The Texas courts hold that forcing a party to leave the country should not operate to his prejudice. (Hardy v. De Leon, 5 Tex. R.) And this court held, in the case of McIlvane v. Coxe's lessee, (4 Cra., 216,) that a citizen of New Jersey did not forfeit his citizenship by joining the British army during our revolutionary war, and that his heirs took by descent, although their ancestor continued to reside abroad. Nor did the expression in the deed that Manso was a citizen of mexico establish alienage, as the State might claim his citizenship, notwithstanding. To this effect is Coxe's case; and which is followed by the doctrine maintained in Ingle v. The Trustees of the Sailors' Snug Harbor. (3 Peters R.)

4. The conveyance from Manso to Grayson is dated April 6, 1836, and was executed before a notary public in Louisiana. It embraced seventeen leagues in all, including the one in dispute. It was a civil-law conveyance, made in a notary's book, and a copy furnished to the grantee, as a second original. This copy was offered in evidence. In December, 1836, the Legislature of Texas enacted, that 'the common law of England, as now practiced and understood, shall, in its application to juries and evidence, be followed and practiced by the courts of this Republic.' The conveyance had two attesting witnesses to it, besides the signature of the notary. To let in the copy, it was proved by a witness that he had examined the original on file on the notary's book; that the copy was a true one; that the notary before whom the conveyance was executed was dead; that the witness knew his handwriting, which was genuine; that he, the witness, was well acquainted with the handwriting of John Simonds, one of the subscribing witnesses to the act of sale, who was also dead, and that the signature of Simonds was genuine.

The original of the conveyance from Manso to Grayson remained in the archives of the notary in Louisiana, and consequently could not be produced, and the copy was of necessity offered. This is according to the case of Watrous v. McGrew, (16 Tex. R., 512.) We are of opinion that the paper offered was sufficiently proved to be admitted on common-law principles.

The copy from the notary's books was also duly authenticated, according to the act of Congress of 1804, as a record of another State. The Supreme Court of Texas held, in the case of Watrous v. McGrew, that as the sixth article of the Constitution of Texas of November, 1835, creating a provisional Government, had recognised the civil code and code of practice of Louisiana; and as the ordinance of January 22, 1836, (Hart. Dig., 321,) had adopted, 'in matters of probate the laws and principles in similar cases in the State of Louisiana,' the courts of Texas must recognise the Louisiana laws, and the proceedings under them, in cases of conveyances executed by notarial act in Louisiana; and on this ground the copy of the conveyance then before the court was admitted in evidence, being in all its features a copy of a record like the present.

5. The remaining question is, whether the defendants are protected by the act of limitations of three years? They pleaded, specially, that they, and those under whom they claim, have been in adverse possession of the premises sued for under color of title for three years next before the commencement of this suit; and that the plaintiff's cause of action accrued more than three years next before the commencement of said suit.

The fifteenth section of the act of 1841 (Hart. Dig., 729) declares that every suit to recover real estate as against any one in possession under title, or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards.

The defendants had both title and color of title, as required by the act; and they, or some of them, had been in actual possession of their lands more than three years before this suit was commenced.

The younger title, owned and occupied by the defendants, lapped over one side of the grant to Morales, and to this interference the dispute extends. But no one of the defendants had been in actual possession of the disputed part for three years when the suit was brought.

The act of 1841, section 15, requires suit to be instituted within three years 'next after the cause of action shall have accrued.' And we think it too plain for reasoning or authority to make it plainer, that, until the land of the plaintiff was trespassed upon, this action of trespass, to try title, could not be maintained. Such are the decisions of the elder States on statutes having corresponding provisions. (Trimble v. Smith, 4 Bibb Ky.; Pogue v. McKee, 3 Mar. Ky.; Talbot v. McGavock, 1 Yer. Ten. R., 262.)

We have endeavored carefully to follow the doctrines of the Supreme Court of Texas in this opinion, because we are bound to follow the settled adjudications of that State in cases affecting titles to lands there.

On the effect of excess of quantity in a grant, and on the three years' act of limitations, we had no direct guide, and therefore have expressed our independent views on these questions.

For the reasons here stated, it is ordered that the judgment of the District Court be affirmed.

Mr. Justice DANIEL dissented.

title: White v. Burnley/Opinion of the Court


text: Talk:White v. Burnley/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
United States v. Breitling

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Alabama.

The case is stated in the opinion of the court.

It was submitted on printed arguments by Mr. Black (Attorney General) for the United States, and Mr. Percy Walker for the defendant.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: United States v. Breitling


text: Talk:United States v. Breitling

title: Talk:United States v. Breitling


text:
United States v. Breitling/Opinion of the Court

This action was brought by the United States against the defendant in error, as one of the sureties in the official bond of David E. Moore, who was receiver of the public moneys at Demopolis, in the State of Alabama. Under the instructions given by the court to the jury, the verdict and judgment were in favor of the defendant.

A bill of exceptions to these instructions, signed and sealed by the judge who tried the case, is set forth in the transcript. But the defendant contends that the exception was not taken by the United States according to law and the rules and practice of the Circuit Court, and that it cannot therefore be regarded as a part of the record of the proceedings in that court, nor considered here in revising its judgment.

A brief extract from the exceptions, together with the note attached to it by the judge, will show how this question arises.

After setting forth the bond and the testimony of several witnesses, examined on the part of the defendant, the exception proceeds in the following words:

'The defendant then offered to read in evidence the depositions above referred to, when the plaintiff's counsel objected to the reading of the depositions of McDowell, W. H. Roberts, and George G. Lyon, as they were severally offered, which objection the court overruled. The plaintiff's counsel objected to the evidence of D. C. Anderson, who was examined as a witness by defendant, whose evidence went to show that Smith, one of the obligors to the bond, was poor and in straitened circumstances, which objection was overruled. This, together with the depositions above referred to, was all the evidence offered by defendant, and the same having been submitted to the jury, and argued by counsel, the court, at the request of the defendant's attorneys, charged the jury, 'that if the jury believe, from the evidence, that at the time Breitling's name was signed to the bond, it was understood and intended that other persons were to sign it as obligors, and he was to have notice that they did so, and who they were, and then, if satisfied, was to acknowledge the bond in the presence of witnesses, who were to attest it, and if this was not done, and the bond was not afterwards ratified by him, the jury ought to find for the defendant;' to which charge the plaintiff's counsel excepted.

'And the judge therefore signs and seals their bill of exceptions, this 15th day of May, 1856, a day after the adjournment of the court.

JOHN GAYLE, [seal.]'

Explanations attached to the Bill of Exceptions.

'During the term of the court, the attorney for the United States presented a bill of exceptions. The bill was presented on Saturday before the court adjourned, which was on Wednesday. On Monday morning, the bill was handed to the United States attorney, with the request that he submit it to the opposing counsel. On the third day after this, the minutes were signed, and the court adjourned.

'I heard nothing further from the bill till the 9th or 10th May, when it was presented by the plaintiff's attorney again, with the written objections of the attorneys of the defendant, that it should be signed after the adjournment. The clerk will subjoin this explanation to the bill of exceptions.

'JOHN GAYLE.'

'Filed 15th May, 1856.'

The objection stated in the note is founded upon a rule of the Circuit Court, which in general terms adopts the practice of the State courts; and the practice of the State courts, in relation to exceptions, is regulated by a law of the State, which provides that no bill of exceptions can be signed after the adjournment of the court during which the exception is taken, unless by consent of counsel in writing, when it may be signed within ten days thereafter, except in such cases as is otherwise provided.

But the answer to this objection is, that the statute of Alabama, and the regulation it prescribes to the courts of the State, can have no influence on the practice of a court of the United States, unless adopted by a rule of the court. And it is always in the power of the court to suspend its own rules, or to except a particular case from its operation, whenever the purposes of justice require it. The attention of this court has, upon several occasions, been called to this subject, and the rule established by its decisions will be found to be this: the exception must show that it was taken and reserved by the party at the trial, but it may be drawn out in form and sealed by the judge afterwards. This point was directly decided in the case of Phelps v. Mayor, 15 How., 260; and again, in Turner v. Yates, 16 How., 28. And the time within which it may be drawn out and presented to the court, must depend on its rules and practice, and on its own judicial discretion. In the case before us, the judge who tried the case has deemed it his duty to seal and certify the exception to this court; and under the circumstances stated in the exception and the note, we think he was right in doing so, and that this exception is legally before this court as a part of the record of the proceedings of the court below.

In proceeding to examine the points raised upon it and argued in this court, it is not necessary to state at large the testimony given by the witnesses for the defendant, nor the grounds upon which the United States objects to the admissibility of the evidence; for it does not appear that the plaintiff excepted to any one of the decisions of the court overruling his objections. The exception states that he made the objections which have been argued here, and that the court overruled them. But the fact that he made the point at the trial, and the court decided it against him, is not sufficient to bring the question before this court. He must show that he excepted to the opinion. And as there is no evidence that he did so while the jury were at the bar, the objections to the testimony of the witnesses are not before us.

It is otherwise, however, in relation to the charge of the court to the jury. This, it appears, was excepted to, and consequently is regularly and legally before this court, and we think the judge erred in giving it.

It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony.

In the case before us, we do not see any evidence in the record which tends, in the least degree, to prove any one of the facts hypothetically assumed in the opinion. If such testimony was given, it certainly does not appear in the transcript. And upon this ground, without examining further into the opinion of the court below, the judgment must be reversed.


text: Talk:United States v. Breitling/Opinion of the Court


text:
Hemmenway v. Fisher

THIS was an appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in admiralty.

It was argued at the preceding term of this court by Mr. Loring for the appellant, and Mr. Bartlett and Mr. Thaxter for the appellee. The judgment of the Circuit Court was affirmed by a divided court, and a mandate was issued for the amount named in such judgment, but no interest was mentioned, as none was given in the judgment of the Circuit Court. The mandate was not filed in the Circuit Court, and at the present term Mr. Bartlett made the following motion, which was argued by Mr. Gillett:

And now the appellee moves to amend the judgment rendered in this cause at the December term of this court, in the year of our Lord 1856, by giving to the appellants damages on the decree of the Circuit Court, at the rate of six per centum per annum, and that the judgment be so reformed, and for cause shows—

1st. That the mandate in said cause, though issued, has never been presented to the Circuit Court, and is now returned herewith, and filed with the clerk.

2d. That, upon inquiry of several of the judges, it has been ascertained that the question of damages was not passed upon by the court, and so this motion is not precluded by the past action of this court.

3d. That by the rules of this court, (Nos. 17 and 18,) 'Where there are no special circumstances, six per cent. interest is allowed on the judgment of the court below,' and the omission to insert the same in the record and mandate is deemed by this court a mere clerical error, capable of amendment at a succeeding term of this court, if the mandate has not been presented to the Circuit Court, and shall be restored to the files of this court. (Bank of Kentucky v. Withers, 3 Peters, 431.)

4th. The fact that the judgment in this case was affirmed upon a division of opinion among the members of the court cannot make it a case of 'special circumstances' within the case above cited, since it is hardly to be presumed that in all cases where there are difficulties in a cause, the party ultimately prevailing is to lose his damages.

Any rule that should make damages in such case on a division of opinion upon the main question among the members of the court, would be open to the suggestion that in principle it ought not to make them depend upon an exact equal division, but apportion them according to the number of dissenting opinions among the members of the court.

S. BARTLETT, for the Appellee.

The appellant objects to the amendment proposed in the judgment rendered in the above entitled cause, and to the allowance of the interest claimed.

1st. Because no interest or damages were claimed at the hearing in this cause; the proper time to have presented this claim was at the hearing; and it is too late, after a decree has been rendered and a mandate issued, to seek at a subsequent term to raise that question. In the case of the Santa Maria, 10 Wheat., 431, 436, the court say, 'In this view, it (the claim of interest) was matter open for discussion upon the original appeal; and no interest having been asked or granted, the claim is finally at rest. What was formerly before the court cannot again be drawn into controversy.' A decree in which no damages are allowed is conclusive and final.

In the case Boyce's Ex'r v. Grundy, reported 9 Peters, 275, the court say, 'It is solely for the decision of the Supreme Court, whether any damages or interest (as a part thereof) are to be allowed in cases of affirmance, (p. 290.) If, upon affirmance, no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages, (p. 290.)In the present case, the motion assumes and admits that no such allowance was made by the court; this decree, therefore, is equivalent to a denial of damages.

The case referred to in 3d of Peters would seem to have been an error of the clerk in not entering the judgment, with the damages which the court decreed, or intended to decree.

This is a different case; no damages were claimed by the appellant, and none were decreed, or intended to be decreed, by the court. Here was no clerical error, but an omission or waiver of a claim to damages by the appellee; and consequently the court did not decree any.

2d. The appellee cannot rest any claim on the fact that the mandate has not been delivered to the Circuit Court; that is his own wrong.

It was his duty to have delivered it immediately upon its being issued.

And had it been so delivered, the appellant would have paid the amount of the judgment; and has in fact held the money unused from that time to the present, for the purpose, and will do so until the final decree in the Circuit Court.

If therefore the decree is to be changed, and any interest allowed, the appellant claims that he ought not to be charged with interest after the mandate was issued, none having been claimed by the appellee; and the mandate having been retained nearly twelve months in his hands, to the detriment of the appellant.

WILLIAM DEHON, for Appellant. Appellee's Reply.

1st. The ground that appellee must be deemed to have waived the application of a standing rule of this court to his case, because he did not specially ask at hearing that it be applied, cannot, it is submitted, be maintained.

2d. The case of the Santa Maria, 10th Wheaton, cited by appellant, has, it is submitted, no application, since it was an attempt to alter the terms of a stipulation made in the admiralty by a claimant, and insert an engagement to pay interest on the sum stipulated. Nor does the case of Boyce v. Grundy, 9 Peters, affect this application, since that case proceeds on the ground that the court passed on the question of allowing damages, and purposely entered the decree without making the allowance. This application proceeds on the ground (supposed to be ascertained) that the court did not pass on the question at all, and that under the general rule damages are to be allowed unless purposely denied; and this is the point determined by 3d Peters, 431.

3d. The suggestion, that at all events interest ought to be denied after the mandate issued, ought not to prevail, if there was what the court deem a clerical error, since appellee had no remedy in the vacation of this court, and appellant has in the mean time enjoyed the use of the money.

S. BARTLETT, for Appellee.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Hemmenway v. Fisher


text: Talk:Hemmenway v. Fisher

title: Talk:Hemmenway v. Fisher


text:
Hemmenway v. Fisher/Opinion of the Court

This case was decided at the last term. It was an appeal from the decree of the Circuit Court for the district of Massachusetts, sitting as a court of admiralty. The decree was affirmed here by an equal division of the Justices of this court; and the decree of affirmance was entered by the clerk for the sum awarded by the Circuit Court and costs, and did not give interest on the amount decreed by the court below. The mandate was issued according to the decree; but it was not filed or proceeded on by the appellee, because he supposed that, under the eighteenth rule of this court, he was entitled to interest upon the amount recovered in the Circuit Court, from the date of the decree, and that its omission was a clerical error. And he has now moved the court, to correct it by amending the decree and mandate.

If an error has been committed by the clerk, it is, without doubt, in the power of the court to correct it at the present term.

But the judgment is correctly entered, and the mandate conforms to it. And the mistake on the part of the appellee has arisen from supposing the eighteenth rule to be still in force, and to be applicable to cases in admiralty. But it never applied to admiralty cases.

It will be observed by reference to the seventeenth rule, to which the eighteenth refers, that these rules are in express terms confined to cases brought here by writ of error. And it is true that, by the original judiciary act of 1789, decrees in chancery and admiralty, as well as judgments at common law, in the Circuit Courts, were removable to this court by writ of error, and were not made removable in any other manner. And if that provision in the act of 1789 was still in force, and the rule unrepealed, the appellee would be entitled to the interest he claims, to be calculated under the twentieth rule, to the day of the affirmance of the decree.

But the writ of error, from its form, and the principles which govern it, is peculiarly appropriate to judgments at common law, and is inconvenient and embarrassing when used as process to remove decrees in chancery and admiralty to a superior court. The ordinary and uniform mode of removing such decrees to the appellate and revising court, wherever such jurisdictions have been established, has been by appeal, with the single exception of this act of Congress. And, in order to remove the inconvenience and embarrassment which this provision in the act of 1789 created, it was repealed by the act of March 2, 1803, and the ordinary mode of appeal substituted in the place of the writ of error. And as this case came up by appeal, the rules of this court referred to in the argument do not apply to it.

Nor indeed were they intended to apply to chancery or admiralty decrees. They were adopted at February term, 1853, and that term continued until the 2d of March. It was on that day that the act of Congress changing the provision in the act of 1789 was approved by the President. And it appears by the minutes of the court that the rules in question were adopted on the same day, that is, March 2d. This act of Congress had therefore, undoubtedly, passed both Houses of Congress before these rules were adopted, and it is evident that they were carefully framed with reference to this change in the law, so as to exclude from their operation admiralty and chancery appeals.

It may be proper to add, that the eighteenth and twentieth rules are no longer in force, even in common-law cases. They have been superseded and annulled by the sixty-second rule, adopted in 1851. By this last-mentioned rule, judgments at common law and decrees in chancery, upon affirmance in this court, carry interest until paid; and the interest is to be calculated according to the rate of interest allowed in the State in which the judgment or decree of the court below was given. The object in changing the rule in this respect was to place the suitors in the courts of the United States upon the same footing with the suitors in the State courts in like cases. For the interest allowed in the several States differs, and in many of them it is higher than six per cent., and in most if not all of them a judgment or decree in a court of the State carries interest until it is paid.

Cases in admiralty, however, are not embraced in the sixty-second rule. It applies to cases of law and equity only. And, indeed, cases in admiralty could not have been justly included. For there could be no reason for giving one rate of interest where a case of collision or salvage was in the first instance tried and decided in Louisiana, and another rate of interest where it was tried and decided in New York, or in any other State where the interest allowed by the State laws was different.

Moreover, in cases of collision and salvage, and more especially in the latter, it is impossible to fix the sum that ought to be awarded with absolute certainty by any rule of calculation. It must depend mainly upon estimates, and the opinions of persons acquainted with the subject; and, acting upon mere estimates and opinions, different minds unavoidably come to different conclusions as to the amount proper to be allowed.

And it will sometimes happen in an admiralty case, that this court will think that the damages estimated and allowed in the Circuit Court are too high, and yet the opinion here may approximate so nearly to that of the court below, that this court would not feel justified in reversing its judgment. Besides, new testimony may be taken here, in an admiralty case, and a new aspect given to it. No rule, therefore, fixing any certain rate of interest upon decrees in admiralty, whenever the decree is affirmed, could be adopted with justice to the parties. And a discretionary power is reserved, to add to the damages awarded by the court below, further damages by way of interest, in cases where, in the opinion of this court, the appellee, upon the proofs, is justly entitled to such additional damages. But this allowance of interest is not an incident to the affirmance affixed to it by law or by a rule of court. If given by this court, it must be in the exercise of its discretionary power, and, pro tanto, is a new judgment.

In the case before us, no new judgment could be given in this court, because, upon the question of affirming or reversing the decree of the Circuit Court, the Justices of this court were equally divided; and the judgment was affirmed by operation of law, which from necessity affirms the judgment of the inferior tribunal when the judges of the appellate court are equally divided. Upon such an affirmance, the appellee was entitled to the full benefit of the decree of the Circuit Court, but nothing more. The court, being equally divided, could not change the decree of the Circuit Court, nor exercise its discretionary power to allow interest on the decree; for this would have been a new decree. And those Justices who were of opinion that the decree of the Circuit Court ought to be reversed because the damages were too high, were of course opposed to making it still higher by the addition of interest.

The motion to amend the decree and mandate, and give interest on the amount awarded by the Circuit Court, must therefore be overruled.


text: Talk:Hemmenway v. Fisher/Opinion of the Court


text:
United States v. De Pacheco

THESE four cases are put together, because they were all covered by one decision of the court. They were cases from California.

In the first, Mr. Crittenden moved to dismiss the appeal.

1st. Because it was not taken during the term at which the decree was rendered.

2d. To docket and dismiss pursuant to the sixty-third rule of court.

Mr. Crittenden offered with his motion a duly-certified transcript of the record; from which it appeared that the decree of the District Court confirming the grant was made on the 22d September, 1856, and that the United States appealed therefrom at the next stated term, to wit 24th March, 1857.

UNITED STATES

v.

HENSLEY.

In this case, Mr. Blair moved to docket and dismiss pursuant to the sixty-third rule of this court, accompanied by a duly-certified transcript of the record; from which it appeared that the decree of the District Court, confirming the grant, was made 5th July, 1855, and that the United States appealed therefrom on the said 5th July, 1855.

UNITED STATES

v.

BIDWELL.

Mr. Blair moved to docket and dismiss pursuant to the sixty-third rule of court, accompanied by a duly-certified transcript of the record; from which it appeared that the decree of the District Court, confirming the grant, was made on the 16th of July, 1855, and that the United States appealed therefrom on the said 16th of July, 1855.

UNITED STATES

v.

SUNOT ET AL.

Mr. Blair moved to docket and dismiss pursuant to the sixty-third rule of court, accompanied by a duly-certified transcript of the record; from which it appeared that the decree of the District Court, confirming the grant, was made on the 14th of January, 1856, and that the United States appealed therefrom on the 24th of March, 1857.

The opinion of the court refers to the first-mentioned case, because the first reason given by Mr. Crittenden was peculiar to that case; the second reason was common to all the cases.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: United States v. De Pacheco


text: Talk:United States v. De Pacheco

title: Talk:United States v. De Pacheco


text:
United States v. De Pacheco/Opinion of the Court

A motion has been made to docket and dismiss this case.

It appears, by a certified copy of the record in the District Court of the United States for the northern district of California, that a decree was passed by that court on the 22d of September, 1856, confirming the title of Pacheco to certain lands therein mentioned. No appeal was taken by the United States at the term at which the decree was made, but an appeal was entered at the next succeeding term, in March, 1857.

Pacheco by his counsel now moves to docket and dismiss the case, upon two grounds: 1st. Because the appeal was not taken at the term at which the decree was rendered; and, 2d. If the appeal might legally be taken at the succeeding term, yet no transcript of the record was filed here within the first six days of the present term of this court.

The first question raised by the motion depends upon the construction of the act of Congress of March 3, 1851, which authorizes an appeal to this court in cases of this description. The act gives the right in general terms to the party against whom the judgment is rendered; and does not limit the time within which the appeal shall be made; nor refer to any particular act of Congress by which the time shall be regulated. It must therefore be governed by the judiciary acts of 1789 and 1803, which regulate writs of error and appeals to this court from inferior tribunals. And by these acts the party may take his appeal at any time within five years after the passing of the decree by the inferior court. The appeal in question was therefore made in time; and this motion cannot be maintained on that ground.

The second reason assigned in support of the motion depends upon the sixty-third rule of this court. Under this rule, the appellee in a case from California is entitled to have the case docketed and dismissed, if the transcript of the record is not filed in this court within the first six days of the term next ensuing such appeal; provided the decree of the court below was rendered sixty days before the commencement of the said term of this court.

As we have already said, the decree was rendered in September, 1856, and the appeal taken in March, 1857. Consequently it was the duty of the appellant in this case to file a transcript of the record within the first six days of the present term. This was not done. And it appears that no transcript of the record has yet been filed by the appellant. The appellee is therefore entitled to have the case docketed and dismissed under the rules above mentioned.

It is true he has not filed the certificate mentioned in the rule, but has filed a full transcript of the record. But the transcript shows all of the facts which the clerk by the rule is required to certify; and it has always been held by the court to be equivalent to the certificate which the rule prescribes.

It is proper, however, to add in order to prevent mistake on this subject, that the only effect of docketing and dismissing a case under this rule, is to enable the party to proceed to execute his judgment in the court below. It removes the bar to further proceedings in that court, which the appeal created, and does nothing more. And after the case has been docketed and dismissed, the party against whom the decree was rendered, may still, at any time within five years from the date of the decree take a new appeal in the inferior court; and if he files the transcript of the record in this court within the first six days of the term next ensuing his appeal, the appeal will be valid, and the case as fully before this court, for examination and revision, as if it had been brought here at the first term. The act of Congress authorizes the appeal at any time within five years, and the period allowed by law cannot be shortened by any rule or practice of a court. Nor was it intended to be diminished by the rules in question. And when an appeal is taken in the court below, if the appellee desire a speedy and final decision or the controversy, it is in his power to bring the case up to the next succeeding term of this court.

Indeed, it sometimes happens, under this rule, that the court permits the transcript of the record to be filed by the appellant, and the case docketed for argument, at the same term at which it had previously been docketed and dismissed on the motion of the appellee. And where the appellant satisfies the court that the omission to file the transcript within the first six days was not owing to any fault or negligence on his part, the court has always allowed him to file it at the same term, and docket the appeal for trial, without putting him to the expense and delay of another appeal.

It follows, from what we have said, that although the case before us must be docketed and dismissed, yet this will not prevent the United States from filing a transcript at the present term, and docketing the case for argument, if they can show that the delay has not arisen from any fault or negligence on their part. And if they fail to do so, they may yet take another appeal at any time within five years, and bring here the decree of the District Court for examination and revision. And if the appellee, after the case is docketed and dismissed, proceeds upon the decree of the District Court, and obtains a patent for the land, his title will still be subject to the decision of this court, if the Government shall hereafter bring up the case within the time limited by law.

We have deemed it proper on this occasion to enter into this full explanation of the rule of court referred to, on account of the multitude of appeals which must unavoidably come up from the District Courts of California, and which, in some shape or other, may be brought before this court, upon motions to dismiss.


text: Talk:United States v. De Pacheco/Opinion of the Court


text:
Spencer v. Lapsley

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

It was an action of trespass to try title, brought by Lapsley against Spencer, originating in the District Court of the United States for Texas, which sat at Galveston, thence removed to the District Court which sat at Austin, and thence removed to the Circuit Court of the United States for the eastern district of Louisiana.

The narrative of the facts of the case, and of the points which successively arose upon the trial, is fully given in the opinion of the court; and the statement of the points which were made by the counsel who argued the case in this court, renders it unnecessary for the reporter to repeat them.

It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Hughes for the defendant, upon which side there was also a brief by Mr. Hale.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Spencer v. Lapsley


text: Talk:Spencer v. Lapsley

title: Talk:Spencer v. Lapsley


text:
Spencer v. Lapsley/Opinion of the Court

The defendant in error, Lapsley, commenced this suit in January, 1851, in the District Court of the United States for Texas, against the plaintiff in error, Spencer, to recover a parcel of land, and damages for the ouster he had suffered. At the April term of the court, 1851, the defendant appeared and demurred to the petition, assigning-1st. The description of the premises is insufficient. 2d. The citizenship of the parties is not specifically averred. 3d. There is no endorsement on the petition, as the statutes of Texas require.

With this demurrer, an answer containing pleas of not guilty, the statute of limitations, and that the plaintiff claims under a grant with conditions, and that the grant is fraudulent, and the conditions were not performed, was filed. Subsequently to the act of Congress of 3d March, 1851, (9 Stat. at L., ch. 32, sec. 6, p. 618,) this cause was transferred to the District Court of Texas, held at Austin. No order of the court appears for this transfer, and it is presumed it was done by attorney. At defendants appeared to the cause at Austin, by attorney. At the November term of that court, in 1854, the following order was made by the District Court:

'This day came the plaintiff aforesaid, by his attorney, and on motion of said plaintiff, by his attorney, the judge now presiding states and enters upon the record that he ha an interest with the plaintiff in the land in controversy in this suit, which, in his opinion, renders it improper for him to sit in the trial of the same; and, thereupon, the court upon further motion orders, because there is no Circuit Court of the United States in this State, that an authenticated copy of this order, and of all the record and proceedings in this action, be forthwith certified to the Circuit Court of the United States for the eastern district of the State of Louisiana, at New Orleans, that court being the most convenient of the United States Circuit Courts in adjoining States.'

The authority to make this order is supposed to be derived from the act of Congress of the 3d March, 1821, (3 Stat. at L., ch. 51, p. 643,) which provides: 'That in all suits and actions in any District Court of the United States, in which it shall appear that the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be the duty of such judge, on application of either party, to cause the fact to be entered on the records of the court.' He was then required to order an authenticated copy of the record to be certified to the most convenient Circuit Court of an adjacent State; which Circuit Court shall, upon such record being filed with the clerk thereof, 'take cognizance thereof, in the like manner as if such suit or action had been originally commenced in that court, and shall proceed to hear and determine the same accordingly; and the jurisdiction of such Circuit Court shall extend to all such cases, so removed, as were cognizable in the District Court from which the same was removed.'

The record was filed in the Circuit Court in Louisiana, in April, 1855, and the cause was continued until the April term of 1856, before it came to trial. In April, 1856, the defendant moved to dismiss the cause: 1st. Because the record shows that the judge of the District Court for Texas, before the suit was brought, had an interest in the land in dispute. 2d. Said interest disqualified said judge from making an order in the cause. 3d. That his orders were void. 4th. That the Circuit Court at New Orleans had no jurisdiction.

It is quite unimportant to consider whether a judge can make any, and if any, what orders, in a suit in which he is interested. This was much discussed in the Grand Junction Canal Company v. Dimes, 12 Beav., 63; 3 H. L. Ca., 759. The act of Congress proceeds upon an acknowledgment of the maxim, 'that a man should not be a judge in his own cause,' and requires a judge found in that predicament, on the motion of either party, to make an order for the removal of the cause to another competent jurisdiction. No other order in this cause was made by the district judge, and he was not authorized to act under the statute, except on motion, and when the motion was made the order was entered. The entry on the record by the judge imports verity, and his order authorized the Circuit Court at New Orleans to take cognizance of the cause.

The defendant obtained leave of the Circuit Court to amend his answer the third term after the transfer. In the amendment, after adding to his pleas in bar of the action, he pleaded that the apparent legal title was vested in the plaintiff by collusion between him and three other persons, who were citizens of Texas, (one of whom was the judge of the District Court,) to litigate and establish a fraudulent grant in that court, and that these persons were the only persons interested in the said grant. In so far as this statement contained any defence to the action, it was comprehended in pleas already on file. As a plea in abatement of the suit, it was open to the objections that it was pleaded, without an affidavit, five years after pleas in bar had been filed, and which were undisposed of, and that it was filed, in connection with other matter, in bar. Such pleading was contrary to the rule and practice of the courts, and was properly disallowed. (Shepperd v. Graves, 14 How., 505; Bailey v. Dozier, 6 How., 23; Drake v. Brander, 8 Tex., 351; Dallam _____ _____, 5901.)

The defendant then applied for leave to file a formal plea in abatement, containing the same allegations as those before stated; and with this plea the defendant propounded thirty-one interrogatories to the plaintiff, to obtain evidence for its support; and also filed an affidavit, to the effect that he had not discovered the facts pleaded at the time his plea of the general issue had been filed in 1851. But the defendant made no offer to withdraw his pleas in bar; nor did the affidavit show when or in what manner his discovery was made; nor why the application to file the plea and obtain the evidence had not been made at an earlier date; nor why it was delayed till a time when any allowance of it might operate a continuance, when the case had already been pending for a year in the Circuit Court. The Circuit Court denied the application. This court has decided that such applications are addressed to the judicial discretion of the inferior court, and its decision is not open for revision here. It has decided that the refusal of an inferior court to allow a plea to be amended, or a new plea to be filed, or to grant a new trial or a continuance, or to reinstate a cause which has been legally dismissed, cannot be questioned for error in this court. (Marine Ins. Co. of Alexandria v. Hodgson, 6 Cr., 206; Sims v. Hundley, 6 Howard S.C.. R., 1.)

A fortnight after these dilatory motions had been disposed of, the cause was submitted to the Circuit Court on its merits. The title of the plaintiff consists of a petition of Thomas De La Vega and two other persons, addressed to the Government of Coahuila and Texas, the 14th June, 1830, each to purchase eleven leagues of vacant lands, under the twenty-fourth section of the colonization law of Mexico. The Governor responded to the petition, that 'he concedes in sale to each one of the petitioners the eleven leagues they solicit;' to be selected after the commissioner of the Supreme General Government shall have reserved a sufficiency of lands to meet the debt of the State. He orders the constitutional alcalde of the municipality to which the lands selected may belong, to give the possession of the leagues, to settle the class of the lands, so as to adjust the price, and to despatch the corresponding title in form. No further proceedings took place until May, 1832, upon this contract. At that date, one of the parties, for himself and the others, represented to the Governor the facts contained in his former memorial, and the executive order; that no impediment existed to the fulfilment of the contract, and that it might happen the parties would select lands within an empresario contract, and therefore prayed that either the alcalde before whom they might present themselves, or in case that he could not do so, that the commissioner of surveys might perform the acts requisite to the delivery of possession and the perfection of the title.

The Governor thereupon nominated the commissioner for the distribution of lands in the empresa to which the lands selected might belong, to perform the acts necessary; but, if they did not belong to an empresa, that the first alcalde of the respective municipality, or that most convenient, might act, so that, according to law and the instructions, possession might be given.

In the following year, (3d October, 1833,) Samuel M. Williams, professing to be attorney in fact for La Vega, presented authenticated copies of the petitions and orders before mentioned to the alcalde of the municipality of San Felipe de Austin, and solicited the location of his contract of purchase upon lands at a designated point on the Brazos river, within the colony of Austin and Williams, if they would consent, and referred to the order of the 2d May, 1832, as conferring an authority for that purpose. The alcalde granted the prayer of the petitioner, and directed that the consent of the empresarios should be obtained, and that the surveyor of the colony should survey the lands at the place designated, and should classify them so that theprice might be settled. The empresario, Williams, consented for himself and as attorney for his partner, and the surveyor returned the order of survey with a figurative plan and notes of survey of the eleven leagues. On the 4th October, 1833, the constitutional alcalde despatched the title in form, which contains a recital of the petitions, orders, consents, and survey, the authority conferred, the price settled, and the investiture of the possession and property. The plaintiff, on the trial, connected himself with this grant by conveyances which had been recorded, and as to which no question arose, except in reference to a power of attorney from La Vega to Williams, under which a deed had been executed in 1840 to Menard and Williams, in trust for Sophia St. John.

The defendant produced no documentary evidence of title, and relied on a possession of some two or three years.

No exception was taken in the Circuit Court to the introduction of the various public acts which constitute the evidence of a title in La Vega; nor was there exception to the charge of the court which pronounced the evidence adduced of its authenticity, competent. It may be proper to state that the title, in the Mexican language, was authenticated from the land office of Texas, and that the translation in the amended record in this court was used in the Circuit Court for convenience only. But the sufficiency of those papers to vest a title in the grantee, and their supposed want of conformity to the laws of Coahuila and Texas, were much debated, and the opinion of the court upon them has been properly reserved for the examination of this court.

The power of the Governor of those States to sell lands to Mexicans, not exceeding eleven leagues in quantity, is unquestionable; and the petition and order in 1830, in connection with the petition and order of May, 1832, are evidence of such a contract. The proceedings in 1830 are sufficiently identified by the statements and recitals of the papers dated in 1832, even if we were to hold that the absence of the Governor's signature to the first order is a fatal defect. But that petition and the executive order are certified by the Secretary of State as official documents; they were so treated by the Governor and the constitutional alcalde, and the petitioners, in the subsequent proceedings. The Secretary of State is designated in the Constitution of the confederate States to authenticate 'all laws, decrees, orders, regulations, and instructions, circulated among the towns, or directed by the Governor to a particular corporation or person,' and that without this requisite they shall not be obeyed or be productive of faith. At the present term of this court, we have decided that a decree not signed by the judge, but which is found in the record, and is certified by the clerk, and which has been executed by the parties, cannot be collaterally impeached for the want of the signature. (Secombe v. Steele, supra.) And the courts in Texas have decided that titles in form, executed without the requisite number of witnesses, are still valid, though there is a special requirement on the subject of the number of the witnesses in the law. (14 Texas R., 189.) We do not feel authorized to deny faith to the act certified by the Secretary of State as an official paper, nor can we assume that the order certified did not receive the executive sanction.

The Circuit Court instructed the jury, 'that the court was required to take notice of the organization of the States of Coahuila and Texas, and of the officers who were competent to perform the duties imposed in the decree of the Governor, upon the petition of La Vega.

'The court charged, that there was no such organization of the colonies of Robertson, or of Austin and Williams, as to render it indispensable for the grantee to apply to a commissioner for distribution to perfect the grant of the Governor; that those colonies were not empresas in the sense in which that term was used in that decree; and that having reference to the location of the land and the situation of the parties, as is shown by the evidence, the alcalde of Austin was a proper officer for taking the measures requisite for the perfection of the grant.' The land described in the title was situated within the limits of both the colonies before mentioned. The colonization contract of Robertson was granted in 1825; its execution was suspended in 1830; and it expired, by limitation, in 1831, and was not again renewed until 1834. The selection of the lands was made after it had expired, and before it was renewed. The history of this empresa has been judicially ascertained by the Supreme Court of Texas; and they have also decided that lands in a colony thus situated might be sold without reference to the empresario in such a contract. (Houston v. Robertson, 2 Texas, 1; Jenkins v. Chambers, 9 Texas, 167.)

The empresario contract of Austin and Williams was concluded in 1831, and included land embraced in the Robertson colony. This land was excluded from their contract in 1834, when Robertson's contract was renewed, and was restored in 1835. (Houston v. Perry, 5 Tex., 462.) No commissioner was appointed for this colony until September, 1835. The contract of an empresario obliged him to introduce colonists into a specific district. The colonist having a family was entitled to one league of land, of a particular quality, for which he paid a small sum to the Government. The empresario was paid five leagues and five labers for every one hundred families introduced. Of course, the excess of land within the limits of the colony, after supplying the colonists and the empresario, remained to the Government. The commissioner of distribution was an officer of the Government, who superintended the fulfilment of the contract by the empresario. He ascertained the character of the colonists, allotted to them and the empresario their shares of land, and for that purpose appointed surveyors, received returns of survey, and executed the final titles. Usually this officer was not appointed until colonists were introduced, and a community was to be formed. The sale of the land within the limits of the colony might disturb the interest of the empresario or of the colonists, and hence reference of the contracts of sale to the commissioner for execution. If there were no colonists, and the empresario opposed no objection, there was no reason why sales should not be made, nor was there any occasion for the services of a commissioner.

Sales of land could only be made to Mexicans, and no inquiries as to their character were required. We understand the decisions of the Supreme Court of Texas to be, that the alcalde was a competent and proper person to complete the titles on a contract of sale, where no organization of the colony had taken place. The case of Clay v. Holbert, 14 Tex. R., 189, resembles that before the court. The contract of sale is dated in 1831. The commissioner or alcalde was ordered to put the purchaser in possession, and to issue the corresponding titles. The lands were selected in the colony of Austin and Williams, in September, 1833. Williams consented for himself and partner. The survey was returned by Johnson, the surveyor. The alcalde, (Lesassier,) who officiated in this case, completed the title. The Supreme Court of Texas determined the grant to be valid. (Watrons v. McGrew, 16 Tex., 512; Ryon v. Jackson, 11 Tex., 374; Hancock v. McKenny, 7 Tex., 384; Jenkins v. Chambers, 9 Tex., 167.)

The Circuit Court further instructed the jury, 'that the grant could not be defeated by proof that the principal surveyor did not in person perform the work of making the surveys, or because the survey was made before the order directed to the surveyor by the alcalde was entered on the grant,' and, upon the whole case, that there was no such evidence of fraud in the making of the grant which would serve to defeat it in this action.

The charge of the court in reference to the survey, followed adjudications of the Supreme Court of Texas and of this court, in analogous cases. It was a common practice in Texas for empresarios and others to have their surveys completed in anticipation of the arrival of colonists, or the measures requisite for the procurement of the final title. The return of such surveys by a surveyor, and their recognition by the commissioner or alcalde, was treated as a substantial compliance with the law. A surveyor might adopt the surveys of other persons. (Jones v. Menard, 1 Tex., 789; Howard v. Perry, 7 Tex., 259; Horton v. Pace, 9 Tex., 81; Jenkins v. Chambers, 9 Tex., 167; Doswell v. Lanzo, 20 How. S.C.. R.)

In Hoofnagle v. Anderson, 7 Wheat., 212, this court say: 'It is not doubted that a patent appropriates land. Any defects in the preliminary steps which are required by law are cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation.' In Boardman v. Reed, 6 Pet., 328, the defendants offered to prove that the lines were not run by a qualified surveyor; that the plats and certificates were made out by protraction, and had been surreptitiously returned to the register's office, and patents obtained.

The court said, 'that at law no facts behind the patent can be investigated. A court of law has concurrent jurisdiction with a court of equity in matters of fraud; but the defects in an entry and survey cannot be taken advantage of at law. The patent appropriates the land, and gives the legal title to the patentee.' (White v. Burnley, 20 How.)

So, if we were to consider the discrepancy of one day between the date of the preliminary order and the date of the certificate of the Secretary, and the absence of the Governor's signature, and the fact that one empresario consents for himself, and as attorney for his partner, without adducing that power; and that the officers do not affix to their names the name of their respective offices; and that the survey must have been made before the order, and probably by a deputy or other person, as marks of irregularity or of malpractice, our opinion could not be affected. In Stevenson v. Newman, 16 L. and Eq., Baron Parke, in delivering the opinion of the Court of Exchequer Chamber, says: 'The effect of ordinary fraud is not absolutely to avoid the contract or transaction which has been caused by that fraud, but to render it voidable, at the option of the party defrauded. The fraud only gives a right to rescind. In the first instance, the property passes in the subject-matter,' and 'vests till avoided.' And this court, after a full review of the subject, in Field v. Seabury, 19 How., 324, states the question and the answer applicable to this case. The question was: 'When a grant or patent for land, or a legislative confirmation of title to land, has been given by the govereignty or legislative authority having the exclusive power to make it, without any provision having been made in the patent or by the law to inquire into its fairness, as between the grantor and grantee, or between third parties, can a third party raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the grant?' The reply of the court is, we are not aware that such a proceeding is permitted in a court of law.

But we do not assert that the circumstances enumerated constitute evidence of fraud. We have seen that the preliminary title is referred to, and recited in all stages through which it passed, and by every officer whom the law appointed to superintend its perfection, and that the survey was in accordance with the current and recognised practice of the country.

The title emanated from the State of Coahuila and Texas, a quarter of a century ago, when Texas was a wilderness. Colonists from abroad were invited, and a league of land was offered to the colonist having a family, for thirty dollars. Mexicans were allowed to purchase eleven leagues of ordinary grazing land for one hundred dollars the league; or of arable land for one hundred and fifty dollars. These eleven leagues were sold for less than twelve hundred dollars. Since that time, two revolutions in the condition of that State have been accomplished, and a vast improvement in the political condition of the country effected. The defendant entered upon the land in dispute after the second revolution was terminated, and after the burden and heat of the contest were over. He entered without a color of title. Neither the State of Coahuila and Texas, nor the Republic of Texas, nor the State of Texas, has taken measures to cancel this grant, nor have they conferred on the defendant any commission to vindicate them from wrong. He is a volunteer.

The doctrines of this court do not favor such a litigant.

The remaining questions presented by the bill of exceptions relate to the power of attorney from La Vega to Williams, under which a conveyance to Menard and Williams, in trust for Mrs. St. John, of Connecticut, was made in 1840.

The paper produced was the testimonio of an authentic act passed before the regidor of the illustrious Ayuntamiento of the city of Leona Vicario, and second alcalde in turn in it and its jurisdiction, who, by reason of the sickness of the first alcalde, &c., and bears date in 1832. The donee of this power located the land for La Vega, and solicited the final title in 1833, and conveyed the land in 1840. Its authenticity has never been questioned by La Vega, so far as is shown by the record.

The regidor is an officer known to the Spanish law, and to the legislation of Coahuila and Texas, (1 Tapia Freb., p. 197, sec. 10; Decrees 124, sec. 6; 262, sec. 11; Laws C. and T.; Edwards v. James, 7 Tex., 383,) and was authorized to discharge the duties recited in the act. Evidence was adduced to the handwriting of the regidor and the assisting witnesses; besides, proof was made that two of them were dead, and the other, beyond the limits of the United States. Considered as the act of a foreign officer, without the support of this proof, the Supreme Court of Texas, in Paschal v. Perez, 7 Tex., 348, say: 'Its admissibility and effect is by no means a settled question at common law, and on the principles of international jurisprudence. Whether the rules of evidence of the forum are to be exclusively observed, or whether those of a foreign country are to have weight, was considered by Mr. Justice Story as an embarrassing question, and which was not settled. (Story's Conf. Laws, 634.) But the court in that case, and in the case of De Leon v. White, 9 Tex., 599, decide that a testimonio is sufficiently established by evidence of the handwriting of the officer, and the assisting witnesses. (8 Tex., 210.) The conveyance to the trustees, for the benefit of Mrs. St. John, an alien, was not invalid, nor can the conveyance be impeached by this party, or in this mode of proceeding.

The averment in the petition of the citizenship of the parties corresponds to the form commonly used in the District Court of Texas, and which has never been questioned in the various causes which have heretofore been before this court from that district.

We think that the allegation is sufficiently specific.

Judgment affirmed.

title: Spencer v. Lapsley/Opinion of the Court


text: Talk:Spencer v. Lapsley/Opinion of the Court


text: Ex parte in the Matter of Mussina v. Cavazos


text: Talk:Ex parte in the Matter of Mussina v. Cavazos