1. In Texas titles, before the adoption of the common law, a
title of possession issued to an attorney in fact of the original
grantee for the latter's use vested the title in such grantee, and
not in the attorney.
2. The original grant by the government was regarded as the
foundation of the title, and the extension of that title upon
specific lands, if made for the benefit of the original grantee,
vested title in him.
3. The papers of the original title, from the government grant
to the title of possession (called the espediente), properly belong
to the archives of the General Land Office, and include a power of
attorney from the grantee to obtain the possessory title.
4. Certified copies of such papers from the General Land Office
are admissible in evidence, and are then evidence for all purposes
for which the originals could be adduced.
5. Under the Mexican-Spanish law formerly prevailing in Texas, a
power of attorney to sell and convey land was properly executed by
the attorney in his own name, specifying that he executed the deed
as attorney for his principal.
6. In order to render a certified copy of a deed admissible in
evidence in Texas, it must be filed with the papers in the cause at
least three days before the commencement of the trial; but the
affidavit of loss of the original deed need not be filed until the
trial.
Edward Hanrick, a citizen of Alabama, in December, 1860, brought
two actions of trespass to try title, in the nature of actions of
ejectment, in the District Court of the United States for the
Western District of Texas, for the recovery
Page 83 U. S. 167
of eleven leagues of land in Falls County in that state alleged
to have been granted by the proper officers of the State of
Coahuila and Texas to one Atanacio de la Serda and claimed by the
plaintiff as owner in fee. The original plaintiff having died, the
present plaintiff was admitted to prosecute the action as his
administrator and only heir.
The defendants pleaded:
1st. The general issue;
2d. Title under one Thomas J. Chambers; and
3d. The statutes of limitation of three and ten years.
A jury being waived, the two causes were consolidated and tried
by the court as one cause in July, 1870, and the court found and
decided that the plaintiff had failed to make out legal title to
the land in controversy in Edward Hanrick, and gave judgment for
the defendants without passing upon the issues raised on the
statutes of limitation. The case was brought here by the plaintiff
upon certain bills of exception taken during the trial of the
cause, showing rulings of the court adverse to the plaintiff, which
were material to the result, and which, he alleged, were
erroneous.
MR. JUSTICE BRADLEY stated the case in its different parts, as
it arose on the exceptions, in their order, and delivered the
opinion of the Court.
The first and second bills relate to certain rulings upon
replications proffered by the plaintiff to the pleas of the statute
of limitations. As these became immaterial from the final view
which the court below took of the case, which relieved the
defendants from relying on the statutes of limitation, we will
consider the other bills.
The plaintiff produced in evidence a properly certified and
translated copy from the General Land Office of the following title
papers, on which he relied for showing a grant of the land in
controversy to Atanacio de la Serda.
1st. A petition by La Serda, described as a native and
Page 83 U. S. 168
resident of Nacogdoches, to the governor, dated October 29,
1830, praying for a grant of eleven leagues of land in the
department.
2d. A grant by Governor Letona to La Serda, dated at Leona
Vicario, March 11, 1831, for eleven leagues of vacant land of the
state, subject to the usual conditions of colonization then in
force.
3d. A blank unsigned application to the alcalde of Austin, dated
Austin, _____, 1833, purporting to be made by Matthew R. Williams,
attorney in fact of Atanacio de la Serda, stating the grant made to
him, and praying that title of possession of the same might be made
for eleven leagues of land on the left bank of the River Brazos,
within the colony of Austin and Williams.
4th. An order of Lesassier, alcalde of Austin, dated October,
1833, referring the application to Austin and Williams for their
approval, and if they approved it, referring it to the principal
surveyor, to survey the land.
5th. Consent of Austin and Williams, dated _____, 1833.
6th. Survey by F. W. Johnson of the eleven leagues in
controversy for the attorney in fact of Atanacio de la Serda, the
survey being addressed to the alcalde.
7th. A grant or title of possession, purporting to be made by
Luke Lesassier, alcalde of Austin, acting as a commissioner under
authority of the government, by which (as the grant recites) in
consideration of the sale made to Atanacio de la Serda (referring
to the particulars of the same), exhibited by the citizen Matthew
R. Williams, attorney in fact of said La Serda, he, Lesassier,
declared as follows, to-wit:
"I grant to and put the aforesaid attorney in fact of citizen
Atanacio de la Serda into real, actual, corporal, and virtual
possession of eleven leagues of land, the same which he prayed for
and which the government sold him, situate on the left margin of
the River Brazos &c."
Describing the eleven leagues in controversy; and after
specifying the terms and conditions to be complied with, concluding
thus:
Page 83 U. S. 169
"Therefore, by virtue of the authority in me vested by the
before-mentioned decree &c., I issue this present title, and do
ordain that an authentic copy thereof be taken and delivered to the
party interested, for the purpose that he may own, use, and enjoy
the land which has been sold to him, for himself, for his children,
his heirs, or successors &c."
The plaintiff then offered in evidence a deed, dated the 8th day
of July, 1838, which, it is conceded, was sufficiently
authenticated and by which the said Matthew R. Williams, as
attorney in fact of La Serda (but in his own name as such
attorney), conveyed or attempted to convey the land in question to
Asa Hoxey and R. M. Williamson, from whom the plaintiff deduced
title to himself. To the admission of this deed in evidence the
defendants objected, and it was excluded by the court, which ruling
constitutes the ground of the first part of the third bill of
exceptions.
The principal objections urged against this deed were
first, that the plaintiff had not shown any valid and
legal authority from La Serda to Williams to sell and convey the
land;
secondly, that the deed was not a valid execution of
the power, if such a power existed. Other objections were assigned
from which it appears that the defendants had contended that the
title of possession was a grant to Williams, the alleged attorney,
and not to La Serda, but that the court had overruled the
objection, and had held that it was a grant to La Serda. If the
grant enured to Williams, he would have needed no power from La
Serda to make the deed in question, but if it enured to La Serda,
of course such a power was necessary. It is essential, therefore,
to determine the effect of the title of possession issued by the
alcalde, Lesassier.
This grant, if judged by common law methods of assurance, is not
expressed in the most apt terms. At first blush it seems to convey
the land to the attorney in fact of La Serda, and not to La Serda
himself. But it seems to be in the usual form used in such cases.
[
Footnote 1] In construing
Mexican
Page 83 U. S. 170
titles in Texas much greater stress seems to be laid on the
original grant made by the governor than is laid by us on the
ordinary land warrant in government titles. In the land system of
the United States, the final patent is the all-controlling document
as to the legal title. But in Texas titles, the final "extension of
title," as it is called, which is usually issued by a local
commissioner appointed for that purpose (in this case, the alcalde
of Austin), is regarded more as a certificate of location, issued
for the purpose of designating the particular land on which the
original grant is to take effect than as an independent grant. In
Clay v. Holbert, [
Footnote
2] the court, speaking of a title very similar to that under
consideration, says:
"It is believed that, this being a sale of land not made by the
commissioner, but by the executive, so far as the right of the
purchaser is concerned, the commissioner's duty did not begin until
after the right had been acquired by purchase from the state, and
it relates then mainly to the reference to a surveyor, approval of
the survey, and putting the purchaser in possession; and his [the
commissioner's] title was only evidence of the right acquired by
the purchaser, and did not give or convey the right, because the
right had accrued by the Act of the state executive."
It is true, the title of possession is necessary to render the
original title perfect, for until it issues, the original grant
does not attach itself to any specific land. But when it is issued,
the original title is said to be extended upon the particular land
designated.
When, therefore, a grant from the governor to La Serda is
produced, together with a survey made at the instance of a person
who assumes to act as his attorney in fact, and a title of
possession is then shown, professing to put the attorney in fact,
as such, in possession of the land surveyed and declaring that said
title was issued in order that the party interested might own and
enjoy the land which had been sold to him, for himself, his
children, his heirs and successors or assigns, such title must be
deemed to be issued for
Page 83 U. S. 171
the benefit of, and to enure to, the original grantee. Its legal
effect must be to perfect title in him. And in so holding, we think
that the court below was right. We do not mean to say that the
original grantee, if not prohibited by law, might not have assigned
his inchoate title to a third person; nor that the title might not,
by a grant in proper form, have been perfected in such assignee;
but we think that the legal effect of the extension of title in
this case, by the document offered in evidence, was to perfect La
Serda's title, and not to vest title in Williams.
This conclusion renders it necessary that Williams should have
had a power of attorney from La Serda in order that a deed executed
by him should have any efficacy in transferring the title to
another. But no such power was among the papers previously offered
in evidence -- at least so far as appears by the bill of exceptions
now under consideration.
But there was attached to the deed offered in evidence and
offered with it a document consisting of a copy of the original
title papers in Spanish, accompanied with an English translation,
duly certified by the translator and the Commissioner of the
General Land Office to be a true and correct translation from the
original Spanish title papers in said office. The papers thus
certified were the title papers previously given in evidence, and
two other documents in addition thereto -- namely, first, a power
of attorney from La Serda to one J. S. Roberts, dated July 20,
1832, authorizing Roberts to obtain possession and title of the
eleven leagues granted to La Serda, as before stated, and to sell
and convey the same, and to appoint one or more substitutes in his
place; secondly, the other additional document was an act executed
by J. S. Roberts, and dated December 10, 1832, whereby he
substituted Matthew R. Williams in his place as attorney of La
Serda.
It is apparent that if this power of attorney and act of
substitution were properly authenticated, they gave Williams full
power to sell and convey, as well as acquire possession. The
counsel of the defendants contends that they were not properly
authenticated; that they were private
Page 83 U. S. 172
documents and no part of the original title, and therefore did
not properly belong to the archives of the Land Office, but to the
officer before whom, or clerk of the county in which they were
executed (in this case, Nacogdoches), and therefore that the
certificate of the General Land Office could not give authenticity
to the copies. His proposition is "that copies of papers in the
Land Office are not evidence unless said papers properly form a
part of the said archives of said office." This general proposition
is undoubtedly correct. Private deeds, conveyances, or mortgages
executed before a notary between citizens and having only a private
effect and operation, could not be regarded as belonging to the
public archives, but the originals or protocols would be preserved
by the notary, or officer acting as such, or turned over to the
county clerk having custody of the county records. But the set of
documents which make up the original title papers of any tract of
land, from the original petition of the grantee to the final
extension of title (usually called in Mexico the "espediente") do
belong to the public archives. They either have to pass under the
examination and approval of the different officials concerned in
granting out the public lands as the basis of their acts or they
are the very acts themselves of those officials, constituting the
preliminary and final acts of title, demonstrating for all future
time the alienation of a specific portion of the public domain. Now
although some of these documents may contain private stipulations
between the parties concerned, yet their proper place of custody is
the General Land Office, and not private or local offices, and if
they belong to the archives, certified copies of them are evidence.
The original act of 1836 establishing the General Land Office
declares (sec. 6) that the Commissioner of the General Land Office
shall be entitled to the custody of all the records, books, and
papers in any way appertaining to the lands of the Republic and
that may now be in the care or possession of all empresarios,
political chiefs, commissarios, or commissioners for issuing land
titles, or any other person, and that the said records, books, and
papers shall become and be deemed the
Page 83 U. S. 173
books and papers of the said office. The fifteenth section
required all local registers, after recording powers of attorney or
any other instrument of writing connected with the grant of orders
of survey, to forward them to the Commissioner of the General Land
Office, showing that such instruments were regarded as belonging to
that office. The power of attorney in the present case was
specially referred to and acted on in the final grant of title, as
appears by its recitals, and became a paper necessary for the Land
Office to have in its possession in order to see the ground for
extending the title to Williams as the attorney in fact of La
Serda. Being thus an integral part of the original title, and
belonging to the archives of the General Land Office, it was
properly authenticated for all purposes by the certificates of the
translator and commissioner. The Land Office Act of December 14,
1837, declared that certified copies of any records, books, or
papers belonging to the office should be competent evidence in all
cases where the originals could be evidence. [
Footnote 3] The subsequent acts on the subject are
equally explicit. [
Footnote
4]
The next objection made by the defendants is that although the
power should be deemed sufficient, the deed was not a valid
execution of the power, being a conveyance by Williams in his own
name as attorney of La Serda, and not a conveyance in the name of
La Serda by his attorney, Williams. The defendants' counsel is
correct in saying that this would have been defective at common
law. [
Footnote 5] But in Texas
at the time when this deed was executed, the Spanish law with
respect to transfers of title still prevailed. The common law was
adopted in its application to juries and evidence on December 20,
1836, but was not generally adopted as the rule of decision in
other respects until January 20, 1840. [
Footnote 6] By the Mexico-Spanish law prevailing in Texas
in 1838, the deed was framed and executed in the ordinary legal
form for transferring the title of the constituent
Page 83 U. S. 174
or party who executed the power of attorney. Several instances
of such deeds are to be found in the Texas reports, and passed
without objection. The form of a deed to be executed by an
attorney, as prescribed by the Spanish Partidas, L. 61, Tit. 18,
Partidas 3d, is given in 16 Tex. 68 as follows:
"Know all men who may see these presents that A. B., as attorney
of C. D., specially authorized by him to sell &c., to receive
the purchase money, and in his name to covenant &c., does sell
&c."
Such instruments are deemed the act of the principal, and not of
the agent. This being the law of Texas when the deed was executed,
it was sufficient, in form and mode of execution, to pass a perfect
title at that time from La Serda to the grantees, for it is well
settled that if a title once becomes vested, no subsequent change
of laws as to forms or solemnities of conveyance will divest
it.
The other objections raised to the admission of the deed are all
involved in those already noticed, and need no further
examination.
The position so elaborately argued by the defendants' counsel,
to the effect that the title papers appear never to have been
completed, no evidence having been given to show that a testimonio
was ever issued or that the final title of possession ever became
an executed instrument, cannot be considered on this writ of error.
We have no means of knowing what evidence may have been offered to
sustain the title papers admitted in evidence except from the
defendants' bill of exceptions, and that is not now properly before
us.
Our conclusion on the first part of the third bill of exceptions
is that there was error in rejecting the deed of 8th July, 1838,
executed by Matthew R. Williams, as attorney in fact of La
Serda.
In the second and third parts of the same bill, the plaintiff,
after satisfactorily proving by affidavits the loss of a certain
deed executed by Matthew R. Williams, as attorney
Page 83 U. S. 175
in fact, and in the name of La Serda, dated 18th of May, 1850,
whereby La Serda, by his said attorney, conveyed the land in
controversy to Edward Hanrick, the original plaintiff in this
action, and after putting in evidence the title papers of La Serda,
as stated in the first part of the bill, and after the rejection of
the deed of 8th July, 1838, and the documents thereto attached,
offered in evidence a duly certified copy of the said deed of May
18th, 1850, from the records of Falls County, Texas, which copy
exhibited an acknowledgment before a notary public of the execution
of the deed by Williams, as well as proof of its execution by one
of the subscribing witnesses. The certified copy was objected to
because the plaintiff did not file among the papers of the suit,
three days before the trial, an affidavit of the loss of the deed,
and the court excluded it on this ground.
The statute on this subject, passed 18th May, 1846 (omitting
words immaterial to this case), is as follows: [
Footnote 7]
"Every instrument permitted or required to be recorded in the
office of the clerk of the county court, and which has been so
recorded after being proven or acknowledged in the manner provided
by law, shall be admitted in evidence without proving its
execution. Provided that the party who wishes to give it in
evidence shall file the same among the papers of the suit three
days before the commencement of the trial, and give notice to the
opposite party. And whenever any party to a suit shall file among
the papers of the suit an affidavit stating that any instrument
recorded as aforesaid has been lost, or that he cannot procure the
original, a certified copy of the record of such instrument shall
be admitted in like manner as the original could be."
The plaintiff had duly filed among the papers of the suit more
than three days before the commencement of the trial, the certified
copy of the deed now offered, but did not file any affidavit of the
loss of the original deed, and this was the
Page 83 U. S. 176
ground of objection. It is sufficient to say that the statute
does not require the proof of loss to be filed before the trial. It
declares that "whenever" a party shall file an affidavit stating
that an instrument has been lost, a certified copy shall be
admitted the same as the original could be. It seems to us that if
the certified copy is filed three days before the commencement of
the trial, with notice that the party intends to offer it in
evidence (as was done in this case), it is a sufficient compliance
with the statute. It is conceded that the Texas reports do not
furnish any authority directly on the point, but it is understood
that the practice corresponds to the course followed in this case.
At all events, the statute seems to require nothing more. We think,
therefore, that the certified copy of this deed was improperly
excluded on the ground assigned for its exclusion. Of course, it
could not be sustained as evidence in the cause unless it was
proven that Williams had authority to act for La Serda.
The fourth bill of exceptions is essentially the same as the
first part of the third, showing a renewed offer of the deed of
1838, after proving the signature of the magistrate before whom it
was acknowledged, and tracing title from Hoxey and Williamson to
Hanrick. It needs no further discussion.
The fifth bill does not show any erroneous ruling. It presents
an offer by the plaintiff from the Land Office, of a document
purporting to be an agreement by La Serda to sell the eleven
leagues of land to Roberts as soon as possession should be
obtained, under a penalty of $10,000, with a mortgage of the grant,
in case of failure to perform, and also an offer of another
document whereby Roberts assigned this agreement to one Peebles,
and, thirdly, a release from Peebles to Edward Hanrick.
A conclusive objection to these documents (which was made by the
defendants) was that they transferred no title. They were mere
agreements. Other objections were raised against their admission
which it is not necessary to discuss.
Page 83 U. S. 177
The conclusion to which we have come is, that the judgment must
be
Reversed with directions to award a venire de novo.
[
Footnote 1]
See Hancock v. McKinney, 7 Tex. 384, where the same
form is used.
[
Footnote 2]
14 Tex. 202.
[
Footnote 3]
Paschal's Digest, Art. 4086.
[
Footnote 4]
Ib., Arts. 4088, 3715.
[
Footnote 5]
Story on Agency ยงยง 147, 148.
[
Footnote 6]
Paschal's Digest, Arts. 3706, 978.
[
Footnote 7]
Paschal's Digest, Article 3716.