Sabariego v. Maverick - 124 U.S. 261 (1888)
U.S. Supreme Court
Sabariego v. Maverick, 124 U.S. 261 (1888)
Sabariego v. Maverick
Argued November 11, 14, 1887
Decided January 23, 1888
124 U.S. 261
When a government officer, acting under authority of law and in accordance with its forms, conveys to an individual a tract of land as land of the government, the deed will pass only such title as the government has therein, and there is no presumption of law that it is a valid title.
Under the provisions of Spanish law in force in Mexico in 1814-1817, confiscation of property as a punishment for the crime of treason could only be effected by regular judicial proceedings, and, it being once declared, the property remained subject to the exclusive jurisdiction of the intendants, both in ordering sale and in taking cognizance of controversies raised concerning it.
There is no legal presumption in favor of jurisdiction in proceedings not according to the common course of justice, but the policy of the law requires the facts conferring it to be proved by direct evidence of a formal character.
The facts that Spanish public officers seized a tract of land in Mexico as confiscated for the treason of its owner, and that after taking regular and appropriate steps for its sale, they proceeded to sell it and to make conveyance of it by instruments reciting these facts and accompanied by certificates of the officers who took part in the transaction that the property had been so confiscated raise no presumption, under the law of any civilized state, that any judicial proceedings were taken against the owner to find him guilty of treason or to confiscate his property for that offense.
To entitle a plaintiff to recover lands by virtue of prior possession, in an action brought against an intruder, a wrongdoer, or a person subsequently entering without right, it must appear that the possession was in the first instance under color of right, and that it has been continuous and without abandonment, or, if lost, that there was an animus revertendi.
Trespass to try title. The following is the case, as stated by the Court.
This is an action of trespass to try title brought in the Circuit Court of the United States for the Western District of Texas by Pilar Garcia de Sabariego and her husband, Manuel, citizens of Mexico, against Maverick and others, citizens of Texas, to recover a certain tract of land lying in the City of San Antonio, Texas. She claimed the property as the sole
heir of her deceased father, Francisco Garcia, and of her deceased mother, Gertrudes Berrera de Garcia, both of whom, it was alleged, died seized and possessed of the said land. The different defendants filed pleas of not guilty, the statute of limitations, alienage of the plaintiffs, etc. On the trial, as shown by the bill of exceptions, the plaintiffs read in evidence certain partition proceedings showing title in one Miguel Losoya to the suerte or tract claimed in the suit by a grant from the King of Spain. The plaintiffs next offered in evidence certain documents, the originals being in Spanish, and translations of which into English are set out, and a deed from a board of commissioners to Garcia, showing a sale and conveyance of the premises in controversy to him, based, according to the recitals, upon a confiscation of the property of Losoya by the Spanish government in the year 1814. These documents relating to the confiscation, sale, and conveyance of the property in controversy were admitted in evidence, the court stating at the time that in its opinion they did not show any decree or adjudication of confiscation sufficient to warrant the sale, and that unless the plaintiffs could show some further proceedings upon which to base the action of the officers in the premises, the said proceedings constituted no legal confiscation and passed no title to the purchaser at said sale. Counsel for the plaintiffs then stated to the court that they were unable to offer in evidence any further or other confiscation decree or proceedings than those already offered and read in evidence. Counsel for the plaintiffs then offered other testimony in depositions,
"but the court, upon the objection of defendants, refused to allow the depositions aforesaid or any part of them to be read, and refused to permit plaintiffs to make any of the proofs aforesaid, upon the ground that the said confiscation proceedings were insufficient to pass title of any character, and that no title of any character was thereby passed to or vested in said Garcia, and that this was fatal to plaintiffs' right of recovery, and that all the said evidence read, as well as that proposed to be offered, showed no title in plaintiffs which would warrant a verdict and judgment in their favor. "
The court thereupon directed a verdict for the defendants, which was rendered, and judgment thereon accordingly, to reverse which this writ of error is prosecuted.
The documents relating to the sale and conveyance of the premises in dispute are as follows:
The first is entitled:
"The governor of the province of Texas returns statements of property confiscated from the rebels in Bexar, and of the condition thereof, and asks whether some of it may be sold."
Then follows a list of the names of the parties and a general description of the property of each, extended into a column of valuations. In this list appears the name of Miguel Losoya; the property described, one-half dula of water; extended 100. This list is preceded by the following heading:
"Statement of property confiscated from the rebels of this city by the order of the commanding general, Don Joaquin de Arredondo, as shown by the statement and inventory made by Captain Don Fran'co del Prado y Arce on the twenty-seventh of October, 1814, which I copy, and to which I refer myself, viz."
It is dated Bexar, the twenty-seventh of October, 1814, and signed F'co del Prado y Arce, Juan Fran'co de Collantes. Then follows:
"General inventory and copy of property belonging to the King, and confiscated from the insurgents of this province, which I received from my predecessor, Lieutenant Don Juan Antonio Padilla, and is now in existence, viz."
In this list also appears Miguel Losoya's one-half dula of water. Then follows, under the head of remarks, the following:
"All the other confiscated property appearing in the statement made by Don Francisco del Prado as above, in the copy of the statement of existing property which I have received from my predecessor, Lieutenant Don Antonio Padilla, now wanting, shall be accounted for by my predecessor in office, since I have had no knowledge of it, but I will be accountable for the property which I received from said Padilla, as appears in this last statement."
"Bexar, nineteenth of September, 1817."
"JUAN FRAN'CO DE COLLANTES"
On the same document is the following endorsement:
"[On margin:] On the twentieth inst. receipt was acknowledged, stating that he shall be advised of the result."
"There are in this city several houses sequestered from the insurgents who took part in the revolution of this province, which took place in the past year, 1811, but all of them are so deteriorated that they are becoming wholly unserviceable, having never been repaired owing to want of funds for that purpose, a few of them having been inhabited by persons connected with the army who, considering their well known straightened circumstances, had means to pay rent only. The result is that although at that time they were appraised by commissioners appointed for that purpose, according to their inventory existing in these archives, in amounts which were then adequate, they cannot now be worth one-half of what they were then, and some of them may not be worth one-third, and, considering that their ruinous condition increases from day to day, I hope that your lordship will please tell me whether some of them may be sold in case that purchasers be found, and whether, owing to the cause above specified, some rebate may be made on the appraised value, considering that at this moment a buyer comes before me of a house appraised at three hundred and eighty dollars, but, inasmuch as the price does not suit him, he asks for some rebate on it, said house being wholly unserviceable. In these terms, and considering that this business is under the authority of the intendancy, I shall act according to the instructions which your lordship may give on the subject. God keep you many years."
"Bexar, September 14, 1817."
"To the Intendant of San Luis Potosi."
"Fourth stamp: 'One cuartillo.' For the years eighteen hundred and fourteen and fifteen."
"SAN LUIS POTOSI, the twentieth of October, 1817"
"Let the official communication of the Governor of the Province of Texas, and inventory and statements thereto
attached, upon houses sequestered from the rebels at Bexar, and asking whether some of them may be sold, be filed, and let the whole be referred to the 'asesor' for his opinion upon such instructions as may be proper. The intendant 'corregidor' of this province, Don Manuel Jacinto de Acevedo, has thus decreed and ordered, and did sign hereto with assisting witnesses, in default of a notary, which I certify."
"MANUEL DE ACEVEDO"
"JOSE MARIA BURAL"
"MAN. JOSE DOMINGO"
"[On margin:] Erasures are not valid"
"To the Intendant"
"Article 82 of the Royal Ordinance of December 4, 1786, gives powers, in case of confiscation by sentence of any property within the territory of this province, and makes it the special duty of your lordship to proceed to the alienation and collection of the proceeds and to take cognizance of all litigation and claims subsequently arising, and on the same subject a superior order was afterwards issued referring to property confiscated from the rebels. In these terms and in the case to which the governor of the Province of Texas makes reference at the beginning of his report of the nineteenth of September of this year, that the confiscation of the property mentioned in it was effected by the order of the commanding general of the eastern provinces, the provisions of said articles are applicable, and consequently your lordship should be pleased to order that the confiscated property, owing to the deterioration it has suffered, as stated, be reappraised by two sworn experts, thus altering the value heretofore assessed on it in order to facilitate its more speedy sale, and that its total loss may not result to the prejudice of the royal treasury, and said property being thus appraised let it at once be offered in public sale for the term of nine days, three outcries being afterwards made, and at the last outcry, adjudication being awarded to the best bidders for parcels, who may appear with the respective bond
certificates by persons able to give security for their bids, and these bids shall be good and may be accepted for adjudication thereon, provided that others be not made a little more in excess of the two-third parts of the amount of appraisement, this being the practice generally observed in all the tribunals. And your lordship will please give notice of this decision to the commanding general, whereupon these proceedings should be referred for the specific objects to the Governor of Bexar, who should in due time report the results to this intendancy."
"San Luis Potosi, October 29, 1817."
"[Lic'do] JOSEF RUIZ DE AGUIRRE"
"SAN LUIS POTOSI, October 31, 1817"
"As the 'asesor' advises, let this be communicated to the commanding general of the eastern provinces for his information. This his lordship has decreed and signed hereto, which he certifies."
"JUAN JOSE DOMINGO, 3"
"JOSE MARIA BURAL"
"On the same day an official communication was addressed to the general commanding the eastern provinces, with insertion of the foregoing opinion, which I certify."
"______ ________, Paraph."
Then follows a
"statement showing the property sequestered from the rebels of the capital of Texas, according to the inventory existing in the archives of this government, specifying that which has subsequently been returned, donated, and finally ruined by the swollen river in the overflow of the fifth of July of this year, viz."
This includes Miguel Losoya, one-half dula of water, rented for one fanega of corn; dated at Bexar, September 10, 1819.
The next document referred to is called a "translation of confiscation proceedings of 1819," dated at the intendancy of San Luis Potosi, in the year 1819:
"The Governor of Texas reports the injury caused by the overflow undergone by the City of Bexar on the fifth of July to the landed estate confiscated
from the insurgents. Statement of the houses and 'jocales' (thatched cabins) belonging to the royal domain, as confiscated from the rebels, which have been ruined in the overflow of the City of Bexar which took place in the morning of the fifth of July."
Then follows a list of houses and "jocales," dated Bexar, the eighth of July, 1819, signed Jose Flores, Examined, Martinez, with the following statement at its conclusion:
"On the morning of the fifth instant, in consequence of a terrific waterspout which bursted north of this city, the river became so swollen as to run over its banks, causing a general overflow such as has never been beheld in the province before, leaving the city in such a condition that it may be said to exist no longer, and its inhabitants (those who were not victims of the fury of the waters) being reduced to the most lamentable destitution. The landed estate belonging to the royal domain by sequestration has been ruined by that overflow, a statement of which property I enclose herewith for the knowledge of your lordship. The unfortunate condition of this people did not allow me to offer that property for sale as your lordship had instructed; now and for better cause it will be more difficult, and all the houses left standing will by degrees fall in ruins, as they have been considerably shattered by the overflow; even the parcels of cultivable land are no longer fit for cultivation. Therefore your lordship will please determine as you may deem most advisable, in order that the royal domain may not suffer a total loss. May God preserve you many years."
"Bexar, July 9, 1819 ANTONIO MARTINEZ"
"To the Intendant, Don Manuel Acevedo"
"One 'quartillo' fourth [L/S.] stamp, one quartillo, years eighteen hundred and sixteen and eighteen hundred and seventeen. One 'quartillo.'"
"September 13, 1819"
"[L. S.] LUIS POTOSI"
"Let the Governor of the Province of Texas be notified that this intendancy is informed of the occurrence referred to in
the foregoing letter, and that inasmuch as the property mentioned in the accompanying list has suffered so great injury, while other property is completely falling into ruin, he will cause the same to be appraised again by experts, sworn in due form, and that it be sold at auction, to be awarded to the best bidder, conforming himself, so far as the said occurrence allows, to the order given on the subject and contained in the proceedings addressed to him on the thirty-first of October, eighteen hundred and seventeen. Thus, it has been determined and signed by the 'Senor Intendente Corregidor' of this province, by the advice of his 'Intendente Letrodo,' before me, which I certify."
"MANUEL DE ACEVEDO"
"Licenciado Josef Ruiz de Aguirre"
"Before me -- ANTONIO MARIA JUARES"
"Notary Royal and Military Intendente of State"
"On the seventeenth of the same month the letter was dispatched as by orders."
This list of houses and "jocales" does not contain any reference to Miguel Losoya, but in the same document follows a "statement of property this day in existence confiscated from the rebels of the capital of Texas, viz." In that list is found the name of "Miguel Losoya, one-half stock watering privilege (media dula de argua), with its land," dated Bexar, September 10, 1819, signed Jose e Flores and Martinez.
Then follows an
"exhibit of the property sequestered from the rebels of the capital of Texas according to the inventory existing in the archives of this government, stating what was subsequently restored, donated, and received, and finally swept off by the waters of the river in the overflow of the fifth of July of this year, viz."
In this again appears "Miguel Losoya, one-half stock watering privilege, with land, rented for one fanega of corn," dated Bexar, September 10, 1819, signed Jose Flores, Examined, Martinez. And there is added the following statement:
"Considering that the overflow of the fifth of July last past resulted in the ruin of several houses and all the 'jocales' which were sequestered and belong to the royal domain, I instructed the agent of said property to make statements, which I enclose herewith to your lordship for your information. One of these statements exhibits all the sequestered property, as I did formerly report to your lordship, stating the disposition made of that property. The other statement shows what is this day remaining of said property, with the remark that in relation to the arable lands, most of it has been destroyed by the overflow, being situated in close proximity to the banks of the river, and they are no longer fit for cultivation. I also enclose to your lordship a statement, as required, of the same commissioner, who has not one 'real' on hand, but holds some bills, part of which may be collected, being against the troops, to which they may be charged on their accounts; others, however, will be of difficult collection, being due by several parties whom the late misfortune has left in the greatest destitution, and now exclusively depending on the charity of his Excellency, the viceroy, who has sent $29.00 for the purpose, and of the most illustrious prelate, Don Jose Ignacio de Aransivia, who contributed $19.00. However, your lordship will determine as you deem just. May God preserve your lordship many years."
"Bexar, September, 1819."
"To the Intendant, Don Manuel de Acevedo"
"LUIS POTOSI, October 20th, 1819"
"Let this letter and accompanying documents be filed with the former proceedings existing in this intendancy, and be referred to the 'promoter fiscal,' and according to his request to the assessor."
"Antonio Maria Guares, one 'quartillo;' fourth stamp, one quartillo; years eighteen hundred and sixteen and eighteen hundred and seventeen, one quartillo."
"[L.S.] [L.S.] One quartillo. "
Also the following:
"Proceedings of sale of the Property Sequestered from the Rebels for the Account of the Royal Revenues. Year 1819."
"The real estate sequestered in this capital from the rebels, having to be sold for the benefit of the royal treasury in order that said royal treasury may not lose all its interests owing to the great depreciation suffered by said property, and by virtue of the orders received by me on the subject, I commission you jointly with the inhabitants, Don Vicenti Gortori, first regidor, and Don Jose Flores, agent of said property, to proceed to said sale in accordance with the opinion of the assessor of the intendancy of San Luis Potosi, a copy of which I enclose to you in order that you may conform with it in all its points, and to form the heading of the proceedings to be instituted on the subject. I do likewise enclose a statement of the houses and lands which must be sold according to the last appraisement made by the experts, Jose Donaciano Ruiz and Francisco Zapata, master masons, for the houses, and for the lands by the farmers Francisco Flores, Don Santiago Seguin, Diago Perez, and Jose Gomez, to whom I did administer the oath to proceed to the appraisement, and you will inform me of the result and forward said proceedings to me. May God preserve you many years."
"Bexar, sixth of November, 1819."
"To Captain Don Manuel Cedran"
"Potosi, the twentieth of October, 1817"
"Let the letter of the Governor of the Province of Texas and the accompanying inventory and statement of houses sequestered from the rebels of Bexar be filed, advising whether any of them may be sold, and let the whole be referred for advice to the assessor for such determination as he deems proper. The 'intendante corregidor' of this province, Don Manuel Jacinto de Acevedo, has thus determined and ordered and
signed hereto, with assisting witnesses, in default of a notary, which I certify."
"MANUEL DE ACEVEDO"
"JUAN JOSE DOMINGUEZ"
"JOSE MARIA LOMA"
"To the Intendant"
"Article 82 of the royal ordinance of December 4, 1786, gives power in case that in the territory of this province the case should arise to confiscate any property, it should be the special duty of your lordship to proceed to the alienation and to the collection of the proceeds, notwithstanding all pleadings and applications subsequently made. On this same subject, orders were subsequently issued referring to property confiscated from the rebels. Consequently, and whereas the Governor of the Province of Texas states at the beginning of the statement made on the nineteenth of September of this year that the confiscation from the inhabitants referred to in it was made by the order of the commanding general of the eastern provinces, the case referred to in said article exists, and therefore your lordship should order that the confiscated property, owing to the depreciation suffered by it, shall be appraised again by two sworn experts, thus modifying the prices formerly assessed, in order to facilitate a prompt sale, and to avoid a total loss to the injury of the royal treasury, and that said property, upon being thus appraised, be placed at auction for nine days, and afterwards cried three times, and at the last cry be adjudicated to the best bidder or bidders for parts, who may appear with proper security papers by individuals able to be good for their bids, and said securities shall be good and may be accepted in proceeding to the adjudication, provided that other parties do not offer a little more than two-thirds of the appraisement, this being the practice habitually observed by all courts, and your lordship should inform the commanding general of this determination, and subsequently refer these proceedings for the contemplated purpose to the said Governor of Bexar, who will in due time report the results to the intendancy."
"San Luis Potosi, October 29, 1817."
"LICENCIADO JOSE RUIZ DE AGUIRRE"
"San Luis Potosi, October 31, 1817"
"Agreeably to the advice of the assessor, this will be communicated to the commanding general of the eastern provinces for his information."
"Thus, his lordship has decreed and did sign hereto, which I certify."
"JUAN JOSE DOMINGUEZ"
"JOSE MARIA LOMA"
"I, Don Antonio Martinez, Knight of the Royal Order San Hermenegildo, Colonel in the royal armies, and civil and military governor for his majesty of this province of the Texas, New Philippines, etc., do certify that the foregoing opinion is a literal copy of that appearing in the proceedings referred from the intendancy of San Luis Potosi and existing in the archives of government in my charge, and for due authenticity I have signed hereunto at Bexar, the sixth of November, 1819."
To this is attached: "Exhibit of property sequestered from the rebels to be offered at public auction, with statement of the value of the same according to the last appraisement." In this list is contained Miguel Losoya's suerte, and extended in a column of figures at 50. This list is dated Bexar, the sixth of November, 1819, and signed Antonio Martinez.
Then follows a return by the commissioners of the sale, as follows:
"Pursuant to your lordship's order to proceed to the sale and adjudication of the property sequestered from the rebels of this province, the same was placed at auction for the term of nine days, after which it was cried three times, as prescribed by the order of the Intendant of San Luis Potosi, said property and grounds being adjudicated at the last cry, as appears from the documents which we return to your lordship, with others referred by you to this board, for your information, with the
understanding that the buyers have been notified to keep the amounts in which the adjudication was made subject to your lordship's pleasure. The other property has not been adjudicated, because no bidders presented themselves."
"May God preserve your lordship many years."
"Bexar, November 22, 1819."
"To Governor Don Antonio Martinez"
"In the City of San Fernando de Bexar, on the twenty-second day of the month of November, in the year eighteen hundred and nineteen, we, the board of commissioners organized for the sale of the property sequestered from the rebels of this province by the order of the governor of the same, Colonel Don Antonio Martinez, viz., Captain Don Manuel Cedran, Don Vicente Gortori, first regidor of the ayuntamiento of this capital, and the inhabitant Don Josef Flores de Abrego, by virtue of the order of the said governor heading these proceedings, in consequence of the order received by that chief from the intendancy of San Luis Potosi, also herein inserted, to proceed to the sale of said property sequestered, as appears in the exhibit accompanying the order of said governor, the whole for the benefit of the royal treasury, do certify and, so far as we are able, do pledge our faith that, after having placed said sequestered property mentioned in the above-recited order and exhibit at auction for the term of nine days, and caused the same to be cried three times, according to the order of the Intendant of San Luis Potosi, they were adjudicated at the last cry, which took place on the twenty-first instant."
Then follows a list of the property sold, including "that of Miguel Losoya, also in favor of Captain Don Francisco Garcia, in fifty-five dollars." The return proceeds:
"To which parties adjudication was made, being the only ones whose respective bids reached the limits specified, no other party having bidden over them, nor did buyers present
themselves for the other property contained in the governor's statement, and for due authenticity, wherever it may be proper, we give the presents, signed by us on the aforesaid day, month, and year."
"Presidial Company of Bexar"
"Received from the board commissioned by the governor of the province, Colonel Don Antonio Martinez, the sum of three thousand one hundred and fifty-five dollars, proceeds of the sale of rebel property in favor of the royal treasury, which shall be charged to this company, of which I am the fiscal agent, and used for the support of the troops in said province."
"Bexar, November 27, 1819."
"The property sequestered from the rebels in this capital having been offered for sale by virtue of your lordship's order to me on the subject, I enclose to you the proceedings formed concerning said sale, together with the receipt of the sum of three thousand one hundred and fifty-five dollars, proceeds of the sale of said property, which amount was received by the financial agent of this presidial company for the support of the troops of this province, which had no means whatever. Therefore I hope that, should your lordship deem it proper, the royal treasury department at Saltillo will be instructed to charge the same against the said Bexar Company. As to the property still remaining unsold, no bidder having presented himself owing both to the depreciated condition of the same and to the poverty of the population, which does not permit them to buy it, some purchasers might present themselves if it were sold on credit, which point I did not wish to determine because, although some honorable persons may be found able to assume that indebtedness, the uncertainty of the crops and their reduced proportion might prevent them from meeting it. However, your lordship will determine as you deem advisable. "
"Respecting the house sequestered from the rebel Vicente Travieso (which has been provisionally transferred to the ayuntamiento of this city by your lordship's order), no bidder will ever appear, because it has been materially injured by the overflow, and it would be impossible for the whole population to raise the four thousand five hundred dollars, amount of its reduced appraisement. May God preserve your lordship many years."
"Bexar, December 10, 1819."
"To the Intendant, Don Manuel de Acevedo"
"Potosi, January 20, 1820"
"To the 'promotor fiscal,' in whose office the former proceedings exist, Licenciado Ruiz de Aguerro: I return these proceedings, after having taken proper action thereon and on the former proceedings, without the respective requests, in order that the 'juez de letros' of the respective district may act as he deems just."
"Potosi, April 16, 1821."
The next document is the deed of the commissioners, as follows:
"Translation of Deed. Nov. 23, 1819"
Valid during the reign of our Lord Ferdinand 7th"
"4th stamp, 1819"
"The party interested paid in this revenue office, in my charge, the half 'real,' cost of this stamp."
"Bexar, November 23, 1819."
"LUIS GALAU (Paraph)"
"In the City of San Fernando de Bexar, on the twenty-third day of the month of November, in the year eighteen hundred and nineteen, we, the commissioners of the board organized for the sale of property confiscated from the rebels of this province, by the order of the governor of the same, Colonel Don Antonio Martinez, viz., Captain Don Manuel Cedron, Don Vicente Gortori, first regidor of the ayuntamiento of this capital, and the resident Jose Flores de Abrego, by
virtue of the order of the said governor, in consequence of the order received by said chief from the intendancy of San Luis Potosi, to proceed to the sale and adjudication of said confiscated property for the benefit of the royal treasury, do certify and do, so far as we can, bear evidence that after said property was offered in public auction, according to accustomed processes, the 'suerte' of Miguel Losoya was adjudicated in favor of Don Francisco Garcia in the sum of fifty-five dollars, being bounded on the north by the land of the widow of Vicente Amador, on the south by that of Cipriano Losoya, on the east by the wall of the mission of Balero, and on the west by the land of Don Francisco Collantes and Manuel Hirnines, which tract of land was delivered by said board to Captain Don Francisco Garcia in the specified sum of fifty-five dollars, which he paid in current money for the benefit of the royal treasury, in consideration whereof he shall possess it now and hereafter as its lawful lord and owner, remaining at liberty to sell it again, to donate or transfer it by inheritance to whomsoever it may be his will, so that no contradiction may be opposed as to the freedom in which he remains to make use of it, and for due authenticity, and in order that this evidence of sale may avail him as a title and muniment in the archives of the government, and that as many copies of the same may be delivered to the party interested as he may desire, we sign these presents in the City of Bexar on the day, month, and year above stated."
"MANUEL CEDRON (Paraph)"
"VICENTE GORTORI (Paraph)"
"JOSE FLORES (Paraph)"
"I approve this sale"
Among the depositions offered in evidence on the part of the plaintiffs were those of Juan N. Seguin and Jose Flores. The former of these, Juan N. Seguin, testified that he had resided in San Antonio from the year of his birth, 1807, until the year 1842; that in 1833 he was Mayor of the City of San Antonio, and political chief pro tempore of the Department of Texas; that in 1835, he was captain of a company of Mexican
volunteers, and took part in the battle of San Jacinto in defense of the independence of Texas, April 21, 1836; that in 1838, he was elected senator in the Congress of Texas, and in May, 1840, Mayor of the City Council of the City of San Antonio, and that in 1869 he was appointed county judge of Wilson County, Texas, but subsequently removed to Mexico. He also testified that he was personally acquainted with the lands in controversy, known as the "Miguel Losoya Suerte," and had been since the year 1818, when Francisco Garcia consulted his father as to its purchase, and was acquainted with it as the property of Garcia, who went into and maintained peaceable possession of it until the year 1834, when he died of cholera in the Bahia del Esperita Santo, near Goliad. He says the possession of the land by Garcia was public and notorious, and that from 1824 to 1835 it was cultivated by Felipe Musquize, whose brother, Don Raymond Musquize, was the attorney in fact of Don Francisco Garcia. This testimony as to possession is corroborated by the witness Flores, who says he leased it himself in 1835 from Raymond Musquize, which fact is also testified to by another witness, Louis Gomez. It further appears from the record that the plaintiffs' demurrer to the answers of the defendants, pleading the alienage of the plaintiffs and the statutes of limitation as defenses, being overruled, the plaintiffs took issue by a general denial of the allegations by a supplemental petition, which also alleged
"that in the year 1833, and from said year and up to the institution of this suit by the plaintiffs, Pilar Garcia de Sabariego had been a feme covert and married woman, and during the whole of said period labored, and still labors, under the disability of being a feme covert and married woman; that her father, Francisco Garcia, died intestate at Goliad, Texas, in the year 1834, and her mother, Gertrudes Barrerra de Garcia died intestate at Matamoras, in Mexico, in the year 1843; that at the times of the death of her said father and mother, and from said times until the bringing of this suit, she labored, and still labors, under the disability of being a feme covert and married woman, and plaintiffs plead the said disability as excepting and saving the said Pilar from the operation of all limitation laws and from all presumptions of grant, and any and all other presumptions and pleas in defendants' answers contained, which are not good as against a feme covert and married woman. "