In an action of trespass to try the title to lands in Texas, the
plaintiff put in evidence a grant of them to A., as shown by
certified copies of papers from the general land office of that
state. He then offered a deed from A. to B. for other and different
lands, and one from C. and wife, the latter being the only
heir-at-law of A., reciting that there was a misdescription in A.'s
deed, and releasing, alienating, and conveying to B. the lands in
the declaration mentioned. The acknowledgment of the deed of C. and
wife required by the laws of that state to pass the estate of a
married woman was not made until after the commencement of the
suit. The plaintiff also offered a deed to him from the
heirs-at-law of B. for all the lands belonging to the latter at the
time of his decease or to which he was then entitled, but did not
propose to show that B. had any title to the lands other than that
shown by the other deeds. The deeds were excluded, and the jury
instructed to find for the defendants.
Held that the
action of the court was proper.
This was an action of trespass to try the title to certain lands
in Texas, brought by Thomas J. Hollingsworth against John T. Flint
and D. T. Chamberlain. Flint filed a disclaimer of title.
Chamberlain also filed a disclaimer as to several tracts embraced
in the eleven leagues sued for, and as to the remainder pleaded not
guilty and the statute of limitations. The jury found a verdict for
the defendants, and judgment having been rendered thereon,
Hollingsworth sued out this writ of error.
The remaining facts are stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is an action in trespass to try the title to eleven leagues
of land situated in the counties of Bell, Milam, and Williamson,
State of Texas, on what was once called San Andres River, now known
as Little River, a tributary of the Brazos.
In support of his claim, the plaintiff read in evidence, without
objection, certified copies from the General Land Office in Texas
of numerous papers, constituting together a grant of the land in
controversy to Miguel Davila, a native and resident of Leona
Page 101 U. S. 592
Vacario, the capital of the Department of Coahuila and Texas, as
constituted in the year 1830. These papers, including the official
survey made by the surveyor general, show that the land embraced in
that grant was "located on the right or south bank of San Andres
River, at the point where the creeks -- Buffalo Creek and Donahoe's
Creek -- empty into said river." The limits, boundaries, and
corners of the land thus granted are given in detail.
The plaintiff then offered in evidence an original deed, in the
Spanish language, purporting to have been executed by the grantee,
Davila, to James Hewetson, at the City of Saltillo, on the 7th of
May, 1839, before its acting mayor, and by which Davila sold and
conveyed to Hewetson, for the consideration of $200,
"eleven leagues of land, obtained from the public domain by
virtue of a permit issued for them to him by the executive of the
State of Coahuila and Texas, by order of July 13, 1830, which
leagues are situated ten on the waters of the creek called
Chocktaw of the Red River, and
the eleventh
between
Sulphur Fork Creek of Red River, and the south fork of
said creek, distant about twenty miles west of the road
leading from Nacogdoches to Kiamichi, of the same Red River, the
survey of which is embodied in the patent issued at Angelina,
jurisdiction of Nacogdoches, on the 30th of January, 1836, by Don
Vicente Aldrete, commissioner appointed for that purpose by the
aforesaid executive."
That patent the officer before whom the deed was executed
certified he had
seen, read, and then
passed and
delivered to Hewetson.
In connection with the offer to read that deed the court, by
request of the defendants, and without objection upon the part of
the plaintiff, considered certain other papers, also certified from
the general land office in Texas, which, together, constituted the
title or grant to Davila of eleven leagues of land in the Red River
region, the locality and boundaries of which, as set forth in those
papers, corresponds exactly with the foregoing description of the
eleven leagues embraced in the deed to Hewetson.
The defendants then objected to the introduction of the Hewetson
deed upon the ground that it did not convey, or purport to convey,
the land in controversy, and was, therefore, irrelevant
Page 101 U. S. 593
and inadmissible. The objection was sustained, and the deed
excluded, to which action of the court the plaintiff excepted.
1. This ruling of the court below is the subject of the first
assignment of error. We are of opinion that the deed was properly
excluded. The plaintiff's petition alleged title in himself to
eleven leagues of land, granted to Miguel Davila, described as
eleven leagues of land "situate on the right or south bank of the
San Andres River, at the place where Buffalo Creek and
Donahoe's Creek empty into said river." The papers read in
evidence by plaintiff, and constituting the final title, as shown
upon the records of the general land office, to the eleven leagues
thus described, show that the survey of that body of land was made
by Surveyor General Johnson, and that the patent, based upon that
survey, was issued Oct. 18, 1833, by L. Lessassier, Mayor of the
City of San Felipe de Austin. We have seen that the deed from
Davila to Hewetson describes eleven leagues of land situated in a
different part of the state, distant, as the court may judicially
know, about two hundred miles from the land described in the
petition and in the papers previously read in evidence as
constituting the grant to Davila of the land in dispute. This is
rendered absolutely certain by an examination of the several papers
constituting the grant to Davila of the eleven leagues of land on
the waters of Red River.
From those papers it appears:
That on the 10th of July, 1830 Davila made application for a
grant by sale to him of eleven leagues of land of the public domain
of the Department of Coahuila and Texas;
That this application was granted on the 13th of July, 1830,
with an order to the alcalde of the municipality to put Davila in
possession after the land was located;
That on the 17th of May, 1834, Davila executed to James Hewetson
an irrevocable power of attorney, authorizing him to select out of
the public domain of the state the eleven leagues of land conceded
to Davila in the year 1830;
That on the 5th of June, 1834, Hewetson executed to M. B.
Menard, of Nacogdoches, a power of substitution, which on the 24th
of May, 1835, was revoked, and the authority which Hewetson had
received from Davila was conferred upon one John Cameron;
Page 101 U. S. 594
That on the 27th of July, 1835, George Aldrich, surveyor, under
an order from the special commissioner appointed by the governor of
the state, of date July 2, 1835, surveyed one of the eleven
leagues
"between Sulphur Fork of Red River and the south branch of said
creek, about twenty miles west of the road leading from Nacogdoches
to Kiamichi, of the Red River,"
and on the 3d of November, 1835, he surveyed the remaining ten
leagues "on the waters of the creek called Choctaw Bayou of Red
River;"
That these surveys were transmitted to the special commissioner,
who, by order of Jan. 30, 1836, directed title to issue; and it was
so issued on that day, the final paper describing the land exactly
as set forth in the deed to Hewetson, and referring, by way of
identification, to the field notes of the surveyor, Aldrich.
While the origin of the title of the eleven leagues on the San
Andres River, as well as of the eleven leagues on the Red River,
may have been an application of Davila on the thirtieth day of
July, 1830, it is perfectly clear that there were in fact surveys
of two distinct bodies of land, widely separated resulting in
grants to Davila of two different tracts of eleven leagues each.
This is shown, partly, by the fact that the final document in the
title for the eleven leagues on the San Andres River was executed
by Lessassier on the 18th of October, 1833, at San Felipe de
Austin, while that for the eleven leagues on Red River was executed
by Special Commissioner Vicente Aldrete, at Angelina, and not until
Jan. 30, 1836. The former body of land was embraced in one survey,
made by Surveyor General Johnson, while the latter was surveyed by
Aldrich, and was embraced in two surveys, one of which called for
ten leagues, and the other for one league.
It thus appears that the plaintiff, in support of his title to
eleven leagues of land on the
San Andres River, offered to
read a deed which upon its face clearly and, in connection with the
papers relating to the
Red River lands, incontestably
showed that the land it purported to convey was not the land
described in the petition, and the title to which was in
dispute.
The contention of the plaintiff is that it was for the jury to
say whether the land described in the Hewetson deed was the
Page 101 U. S. 595
same land which in the title papers read in evidence was
described as situated on San Andres River. No such conclusion
could, however, have been fairly reached by the jury consistently
with the evidence. The deed was unambiguous in its terms; and
whether interpreted by its own language, or in the light of the
papers constituting the grant to the Red River lands, there was no
ground whatever to infer that Davila, by the conveyance of lands on
Red River, intended to convey the title to lands on San Andres
River.
Whether the grant to Davila of the lands on Red River was void
by reason of the prohibition against uniting more than eleven
leagues in the same lands, or because of the declaration in the
Texas Constitution of 1836 to the effect "that all surveys and
locations made since the act of the late consultation closing the
land offices and all titles made since that time are null and
void," it is not necessary to inquire. For if that proposition be
conceded, it is nevertheless manifest that the papers constituting
the grant to the Red River lands, read without objection, were
evidence in illustration or explanation of the excluded deed; and
they utterly negative the idea that the grantor, by a conveyance of
eleven leagues, situated on the Choctaw and Sulphur Creeks of the
Red River (quoting from the deed),
"the survey of which is embodied in the patent issued at
Angelina, jurisdiction of Nacogdoches, on the thirtieth day of
January, 1836, before Don Vicente Aldrete, commissioner,"
&c., intended to pass the title to eleven leagues of land on
San Andres River, the final title to which passed by patent issued
Oct. 18, 1833, at the City of San Felipe de Austin, by L.
Lessassier, mayor of said city and its municipality.
It is scarcely necessary to cite the authority of text writers,
or of adjudged cases in the Supreme Court of Texas or elsewhere, to
prove that the deed was inadmissible as evidence in support of
plaintiff's title to the land described in the petitions and in the
papers read in evidence by him as constituting the original grant
to Davila of eleven leagues on San Andres River. The deed conveys
lands that were surveyed and located in the Red River region. It
was therefore inadmissible for the plaintiff in this action, in any
view which may be properly taken of the case.
Page 101 U. S. 596
2. The plaintiff then offered in evidence a deed from Inez (the
legitimate daughter and only heir-at-law of Miguel Davila) and her
husband, dated Sept. 28, 1869. It was acknowledged by the wife on
the 12th of September, 1876, upon privy examination before the
consul of the United states for Saltillo and its dependencies, and
by the husband a few days thereafter. That deed recited that Miguel
Davila had many years before sold to James Hewetson his concession
of eleven leagues of land on the San Andres River, and had on May
7, 1869, by public act conveyed the same to said Hewetson,
"describing said land
by mistake as being situated in
another part of Texas instead of where it was in fact situated."
The deed ratifies and confirms the sale to Hewetson, and releases
and conveys to him all the right, title, and interest of the
grantors.
That deed, upon the objection of defendants, was also excluded,
which ruling constitutes the next error assigned by the
plaintiff.
No error was committed in rejecting that deed as evidence in
support of plaintiff's claim. This action was commenced in 1874. At
that time, the deed had not been acknowledged so as to pass the
title, if any, which the female grantee had in the premises in
controversy. Her interest in the land, if any she had, was her
separate estate, of which she could not, under the laws of Texas,
be divested, except by the conveyance of herself and husband, and
after her privy examination before the proper officer. Such
examination had not taken place when this action was commenced. The
plaintiff could not avail himself in this action of a title
acquired, or which did not subsist in him until, after he commenced
suit. The title at the beginning of the action was the question to
be tried.
3. The plaintiff finally offered to read in evidence a deed
purporting to have been executed in 1873 by the heirs of James
Hewetson to the plaintiff and another. This deed was very properly
excluded upon the ground that the plaintiff had failed to connect
himself with the sovereignty of the soil, and declined to state
that he expected to show any other title than that previously
offered.
The court thereupon instructed the jury, as was its duty to do,
to find for the defendants.
Judgment affirmed.