The judge of the District Court of the United States in Texas
had power to order the record of a suit in which he was interested
to be transmitted to the Circuit Court of the United States in
Louisiana.
A plea in abatement, filed in connection with pleas in bar, was
irregular; and the refusal of the court below to allow the plea to
be filed is not subject to the review of this Court.
A contract for the sale of eleven leagues of land in Texas,
issued before the revolution, and subsequently located within the
colonizing grant of Austin and Williams, with their consent, and
certified by the secretary of state, was good without the signature
of the governor.
So far as the land was within the colonizing grant of Robertson,
his consent was not necessary, the term of his grant having
expired.
Where no organization of a colonial grant had taken place by the
introduction of settlers, the land not occupied was open for public
sale, with the consent of the empresario, and the alcalde was a
proper person to put the purchaser in possession.
That the survey was made before the order of survey was directed
to the surveyor was not fatal to the grant. Any preliminary defects
were cured by the patent. The fairness of the grant cannot be
investigated at law at the instance of a third party.
A power of attorney, authenticated before a regidor, proved by
the handwriting of the regidor and the assisting witnesses
held sufficient.
Page 61 U. S. 265
This 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.
MR. JUSTICE CAMPBELL delivered the 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 3 March, 1851, 9 Stat., ch. 32, sec. 6, 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 has 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
Page 61 U. S. 266
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., ch. 51, 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 way 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.Cas. 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
Page 61 U. S. 267
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. Insofar as this
statement contained any defense 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 _____ _____ 590.
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 Cranch 206;
Sims v. Hundley,
6 How. 1.
A fortnight after these dilatory motions had been disposed of,
the cause was submitted to the circuit court on its merits.
Page 61 U. S. 268
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 dispatch 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 fulfillment 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 the price 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
Page 61 U. S. 269
plan and notes of survey of the eleven leagues. On the 4th
October, 1833, the constitutional alcalde dispatched 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
Page 61 U. S. 270
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 Tex.
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 Tex. 1;
Jenkins v.
Chambers, 9 Tex. 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 everyone hundred families
introduced. Of course, the excess of land within the limits of the
colony, after
Page 61 U. S. 271
supplying the colonists and the empresario, remained to the
government. The commissioner of distribution was an officer of the
government who superintended the fulfillment 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. 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
Page 61 U. S. 272
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. 235.
In
Hoofnagle v.
Anderson, 7 Wheat. 212, this Court said:
"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. 235.
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. & Eq.. Baron Parke, in delivering the
opinion of the Court of Exchequer Chamber, said:
"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 sovereignty 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
Page 61 U. S. 273
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 recognized 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. 197, sec. 10;
Decrees 124, sec. 6; 262, sec. 11; Laws C. and T.;
Page 61 U. S. 274
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, said:
"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.
MR. JUSTICE DANIEL dissenting.
I find myself constrained to differ with my brethren as to the
views they have taken of this case -- views more accurate, perhaps,
than my own, yet differing so materially from my apprehension of
the law of the case as to impose, according to that apprehension,
the duty of endeavoring to explain what by me is deemed its true
aspect.
The difficulties and irregularities incident to the removal or
to the modification of preexisting institutions by the introduction
and superior control of systems really or seemingly incompatible
with the former must necessarily involve the hazard of error, and
impress therefore the propriety of great caution with respect to
innovations to be adopted.
Wherever the obligation exists to harmonize portions of the
previous system with the creation and the exigencies of a new
regime, the safest -- indeed the only safe guide -- must be found
in the adherence to enlightened and generally admitted principles,
as a guarantee for the rights and duties deducible both
Page 61 U. S. 275
from the past and from supervening institutions. In following
such a guide, I am conducted to conclusions differing from those
which have been reached by the majority of this Court in this
case.
Conceding in its utmost extent a power in the colonial governor
or political head of Texas to make grants of land, conceding too,
for argument's sake, an entire exemption in the plaintiff below
from all obligation to produce the original of a grant made by the
competent officer; admitting also the sufficiency of a copy from
the record, still I hold that a copy, in order to become evidence,
must purport upon its face to be a full and perfect copy, and must
be verified by some competent person. The grant, or the paper
claimed to be a grant in this case, is defective upon its face. In
the first place, it is without date, and consequently can be
identified or coincident as to time with no document in this cause;
it is not signed by any person whomsoever, in the name or character
of governor, nor by a deputy, nor by a person professing to be
clothed with authority to sign such an instrument. In its
structure, it commences by speaking in the
first person,
as if by the maker of the grant, but breaks off before reaching the
conclusion, and is incorporated or converted into a certificate,
dated June 13, 1839, by Santiago del Vallee, signing himself a
secretary, stating that so far as he has given this document, it is
a true copy. This certificate, then, is a confession,
in
terms, that the entire act of the governor is not given, but
that the document is incomplete.
The rule of evidence is, with regard to copies, that they must
be
complete, and must be properly authenticated. Records
are never allowed to be adduced in evidence, unless they are
perfect records. It is never permitted to garble them, nor to read
parts of them, or extracts from them, as evidence. Yet here we have
a paper introduced as a
record, as the act of the
governor, when the proof relied on to sustain it conclusively shows
that the record, if it be one, is incomplete, that it in fact is
falsified by itself, and the act of the governor, if it be his act,
is not permitted to speak for itself, but an attempt is made to
establish that act by a wholly distinct and independent
declaration, by a person styling himself a secretary.
Every foundation of the plaintiff's claim, so far as it is made
to rest upon this alleged grant, or on the verity of the copy, must
fail.
This defect in the evidence appears to have been perceived, and
its force felt, and hence, perhaps, the effort at the removal or
remedy thereof, by the introduction of a petition bearing date on
the 2d of May, 1832, signed by Joseph Maria Aguirre, on
Page 61 U. S. 276
behalf of himself and the other parties to the former petition,
in which it is recited that the government had conceded to himself
and his associates on sale on certain conditions, on the 14th of
June, 1830, the leagues of land now asked for in this renewed
petition, no quantity or number being set forth, and then further
states, that the conditions on which the concession here spoken of
having been removed or fulfilled, it prays that the proper officers
may be appointed to survey the lands, and to put the petitioners in
possession. Following this petition is an order or decree of the
same date with the petition, and signed Letona, not styling himself
governor nor assuming any official designation; but the order is
certified by Santiago del Vallee as being a copy from the archives
in his charge, and stating that he had been commanded to take this
copy from the archives by the disposition of the most excellent
governor.
Upon a recurrence to this petition of the 2d of May, 1832,
signed Jose Maria de Aguirre, and to the decree or order of the
same date, it will be perceived that neither of these papers
contains any description or quantity of land. The petition has
reference to an alleged grant as made on the 14th of June, 1830,
nowhere shown; the order or decree refers to some act or proceeding
of the political chief of the department of Bexar, nowhere
exhibited on this record, of the 2d of June, 1830, which, of
course, cannot be identified with the alleged concession of a
different date,
viz., of the 14th of June; and the prayer
of this petition of Aguirre and the order of Letona can by no
correct induction be received as curing the defects in the first
alleged grant or as supplying the absence of date and of signature
by any official of any denomination or of any grade of power
whatsoever.
But it has been supposed that these material defects have been
remedied by the act of Lesassier, purporting to put the parties, or
rather La Vega, one of them, into possession. To this suggestion it
may be replied, in possession of what? It surely cannot be
pretended that Lesassier had any rightful authority to create or to
originate or to authenticate a grant. He could not determine the
rights of claimants, nor decide upon the extent of concessions made
by the government. He had no judicial or discretionary powers
touching these matters; he was merely a ministerial and subordinate
agent, to execute the orders of his superiors, and accordingly it
is seen that in his account of his proceeding he has constant
reference to the orders and decrees, recognizing these as the only
authority for his acting at all. His acts could have no effect
whatever, either to confirm or to invalidate those orders or
decrees, and of course
Page 61 U. S. 277
could not supply any defect or insufficiency in their
provisions, or in the authentication of them.
This paper, purporting to be the act of Lesassier, is in itself
defective as to the proof of its verity, for it is not introduced
as a copy from a record, nor established upon proof of the
signature thereto, nor upon the testimony of the assisting
witnesses at its execution, nor is the absence of those witnesses
accounted for.
In the next place, with respect to the deduction of title from
La Vega, to whom it is said a grant was made by the government, by
the decrees just examined. The first step in the deraignment of
this title is the paper styled the power of attorney from La Vega
to Williams, dated May 5, 1832. The authenticity of this paper
rests upon no foundation of legitimate evidence. It cannot be
considered as possessing the dignity and verity of a record, nor of
a copy from a record. It is not shown that the laws of Texas
required it to be recorded, and without such a requisition it could
not be made in legal acceptation a record, by the mere will or act
of a private person. This paper does not appear to have been placed
on record, and if in truth it had been recorded in a proper legal
sense, still there is no copy said to have been taken from a
record, or certified by any legal custodian of the record or of the
original document. This paper is signed by Juan Gonzales, who
certifies that it was copied,
not from the
public
archives, but from the
original, with which he says
that it agrees. This certificate is an assertion that the document
certified was not copied from a record -- that it is not the
original, and that the certificate was not and did not purport to
be proof of the
execution of the original. Where, then, is
found proof of this instrument, with respect either to its dignity
as a record, as a copy from a record, or as to the truth of its
execution by the parties thereto? It has been seen, then,
that this document is neither a record nor a copy from a record.
The language of the instrument and that of the certificate of
Gonzales alike contradict any such conclusion; the certificate
declares it to be a copy of a private paper, and nothing more. The
next inquiry pertinent to this alleged power is as to any authority
in Gonzales to certify copies of records, and still more to certify
copies of private papers in the possession of parties -- papers,
the execution of which he did not see -- and by such certificate to
conclude or prevent all inquiry into the fact of their execution,
or of the
bona fides with which they may have been
prepared. Here there is no pretense to proof of
execution
of the alleged power. The
instrumentary witnesses, as they
are termed, the witnesses present at the execution of the
instrument, and in this instance there appear to
Page 61 U. S. 278
have been three, were not called, nor was any reason assigned
for their absence; they seem not to have been even thought of; and
with respect to those who are called the
assistant
witnesses -- the witnesses to the certificate of Gonzales --
although it is sworn by Hewetson that one of these witnesses was
dead, and the other, J. M. Morel, resided in Mexico, no effort by
commission or otherwise was made to procure his testimony, nor was
there proof of the impracticability of procuring it. The
irregularities connected with this alleged power of attorney seem
to me too glaring, and too obviously liable to gross abuse, and
tend too strongly to injury to the rights of property, to be
tolerated in courts governed by correct and safe rules of
evidence.
The objections urged by the defendant below to the legality of
the documents above commented upon, and to their relevancy to the
issue between the parties, appear to have been substantially and
sufficiently reserved in the fourth and fifth bills of exception by
the defendant, and satisfy me that those documents should have been
ruled out of the cause.
It seems to me that there was error in the instruction of the
court to the jury, that there was no fraud in the transactions by
which the alleged title to the land in controversy had been
obtained or transmitted to the plaintiff.
In this action, the plaintiff could succeed or should have
succeeded in virtue of a legal, valid, perfect title, and none
other adverse possession, with claim of right, was title until a
clear, fair, honest, legal, paramount title in the plaintiff was
shown. If therefore, the documents upon which the claim of the
plaintiff was based should have been found to carry with them,
either upon their face or in the manner of their procurement, any
of the badges of fraud, this would have been a sufficient objection
to their validity. A blemish, or a defect, or an infirmity in that
necessarily fair and legal title, by which the possession of the
defendant, presumed legal as against all but the true and rightful
claimant, could be displaced would be fatal. What were the
circumstances attending the fabrication or procuring of the
documents relied on by the plaintiff, or the manner in which they
were transmitted to him, were, it seems to me, subjects exclusively
appropriate to the consideration of the jury. The inquiry in this
case was not one arising solely upon the construction of written
instruments; it embraced also the conduct of agents alleged to have
been the makers of those instruments; the discharge of these duties
in the exercise of powers ascribed to them; and the honesty and
good faith of those professing to have dealt with them and to have
derived and to have transmitted rights founded upon
Page 61 U. S. 279
those transactions. These considerations, in connection with the
incongruities as to dates and the apparent deviations from regular
official proceedings and in the conduct of those through whom the
title is traced by the plaintiff from what is usual, appear to be
inseparable from the inquiry of fraud in fact and in intent, and
should have been submitted to the jury, from whom they were
withdrawn by the instruction of the court.
It is unquestionably true that in courts whose proceedings are
regulated by the rules of pleading at the common law, matter in
abatement is not allowed to be pleaded after pleading in bar
unless, indeed, the matter tendered in abatement shall have arisen,
or shall have come to the knowledge of the pleader,
puis
darrein continuance, and when such matter is allowed in
defense, all that has been previously relied on in bar is
considered as relinquished. Such, however, has been represented as
not having been the rule adopted in Texas. There it has been said
that a defendant may plead both in bar and in abatement. In this
case, the matter tendered was accompanied by an affidavit of its
discovery since the issue in bar, but no evidence appears upon the
record of an offer to withdraw the latter; nor am I aware of the
necessity of a formal proffer to that effect. The matter tendered
in abatement should, if material, be admitted, and where so
admitted, the matter previously relied on in bar is by legal
consequence, and without any necessity for an express order upon
the defendant, thereby waived. It is true that the decision of the
circuit court rejecting this plea is not matter for reversal here,
but the consent or acquiescence of the party in sheltering himself
under an artificial rule, in a controversy in which was impugned
the good faith of that party, is matter for regret, at least, and
cannot be altogether indifferent in an inquiry seeking an
examination into the fairness of the transactions involved. The
removal of this cause from one portion of the District of Texas to
another, in neither of which the district judge, upon the facts
conceded as known to him, was competent to take cognizance of it,
we are told may be presumed to have taken place by consent. Upon
what fact such a consent can be inferred this record does not
disclose, and it is difficult to conceive any reason existing with
the defendant below for such consent. There are presumptions,
however, connected with this removal within the district from which
there can be no escape.
First. It must be presumed that the district judge was cognizant
ab initio of his acknowledged interest in the subject in
controversy.
Secondly. It must be presumed that he was also cognizant of his
absolute disqualification, by reason of that interest, from
Page 61 U. S. 280
making any decision or holding any plea in the cause, and that
the removal of it from one point to another within the district was
an useless as it was an irregular and illegal act.
Thirdly. It must be presumed that, knowing himself to be thus
disqualified, he could have no legitimate power to retain the cause
under his own control for several years, that such a retention
might be oppressive as it was illegal, and that his only power was
that which the law imposed upon him as a duty, the power of an
immediate removal of the cause, upon its institution, to a tribunal
exempt from disqualifications which he knew existed with reference
to himself. It may truly be thought to have been a mistaken and
unfortunate course in those to whom the interests of the district
judge were confided, that they did not seek -- nay, challenge and
insist upon investigation -- rather than exclude it under the
stress of a formula in pleading, the application of which was of
doubtful propriety, if not irregular in this case. By a different
proceeding, they might have met directly charges openly alleged and
might have removed implications to which the suppression of inquiry
may have imparted a semblance of truth.
Upon the considerations hereinabove stated, and with a view to
the more thorough investigation as to the law and the facts of this
cause than the record before us has disclosed, it is my opinion
that the judgment of the circuit court should be reversed and this
cause remanded to that court for a new trial to be had therein.