Cavazos v. Trevino

35 Tex. 133

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Walker, J.

This is an action of trespass to try title, brought in the District Court of Cameron county, on the eighth day of April, 1852, by Manuel Trevino, as administrator of the estate of Ignacio Trevino, against James Penn, Rafael (Jarcia Cavazos and Maria Josefa Cavazos, Ms wife, and others, citizens of the Republic of Mexico. By an amended petition, the heirs of Ignacio Trevino became plaintiffs, and Maria-Josefa Cavazos was left sole defendant in the suit.. The amended petition was filed on the twelfth of December, 1853. The defendant plead the general issue,, and, in reconvention, that she was “seized and possessed, in her own demesne as of fee, of one undivided third part of the whole of the tract of land in the said plaintiffs’ petition described as being a part of a larger tract known as ‘El Potrero del Espíritu Santo.’ ” The-venue was changed to Nueces county. The defendant again plead in reconvention. The plaintiffs set up title-by prescription, and excepted to the pleas in reconvention. The plaintiffs had also pleaded the statutes of limitation. To this, the defendant replied her coverture for tMrty years previous to the commencement of this suit.

Upon the trial the plaintiffs offered in evidence a copy of a testimonio of title, issued by the alcalde of Matamoras in 1829, to Ignacio Trevino, which was proved to-be a genuine copy of the original, and which had been recorded in Cameron county. This was objected to by the defendant; first, because the proof only showed it-to be a copy of the testimonio, and not of the protocol-of the title, and also that the original was not accounted for; second, that it was not such an instrument as the law authorizes to be recorded, and that the; proof of it was not taken before a proper officer—the notary, B. F. Fry, having accepted the office of county clerk of Cameron county prior to the time of taking the depositions of the witness.

The plaintiffs also offered in evidence, to prove title,, a copy of a grant from the government- of Tamaulipas,. issued in 1829 to Ignacio Trevino, based upon the title of possession, and also a survey of the grant; by both of which it appeared that the grant was within the littoral leagues. They were objected to for this reason, and because plaintiffs had not shown that the consent of the general government of Mexico had been obtained, for the grant; and for the further-reason, that the colonization laws of Tamaulipas limit grants to five leagues,, and this grant exceeded the limit.

These objections were overruled and the defendant excepted. On the part of the defense, there was given-in evidence a testimonio- of title, issued in 1781, to Jose-Salvador de la Garza, by the Viceroy of Mexico, for-the lands of the Espíritu Santo-.

It is in proof that Garza, the grantee, had three children—Bias Maria de la Garza, who married Francisca. Cavazos ; Xaviera de la Garza, who married Jose de - Goseascochea; and Margarita de la Garza, who married. Lopez Prieto. By the wills of some of the heirs, and. the subsequent disposition of their property, Mrs. Cavazos, the defendant in the court below, claims to-have become the owner of the undivided one-third of" this grant.

The main subject matter here in controversy appears-to have been adjudicated; in. the Federal courts, and was decided by the Supreme Cburt of the United States,, at the December Term for the year 1867.

Mr. Justice Swayne in.Ms opinion: remarks, that the-question in controversy was the true eastern boundary of the Espíritu Santo tract ;■ and that it was a question of fact, to be determined by the jury upon the evidence before them. (See Cavazos v. Trevino, 6 Wallace, 780.)

We have examined this case-carefully, and we need no clearer light in which to- place the case before us, than that which is afforded by the learned opinion off this highest judicial tribunal, known, to.- our government.

There are some questions raised in the record before us, which it may not be amiss briefly to notice. The document marked “A” was offered in evidence by the' plaintiff below as a muniment of title to Ignacio Trevino, the ancestor of plaintiffs. It was supported by the deposition of Domingo de la Garza, taken before Budd H. Fry, who was supposed to be a notary public of •Cameron county; who, having accepted the office of-.clerk of the County Court, it is claimed had vacated the office of notary public. (See Biencourt et al v. F. J. Parker, 27 Texas, 558.)

This deposition was objected to, the objection overruled, and an exception taken. The question does not .-appear to us of material importance in the case. Document “A” was offered in evidence as a recorded instrument, and, we think, under the laws of Texas, was properly recorded, whether its record be referred to the .-act of 1836, or the subsequent act of May 12, 1846. It Ms been supposed that the act of 1846 repealed, by implication, the act of 1836. Whether this be so or not, the document was “ an instrument of writing of and concerning lands and tenements.” It was, indeed, the testimonio of the title of possession.

The document B. C., executed by the evidence of Stephen Powers, was the final title issued by Fernandez, the Governor of the State of Tamaulipas, to Ignacio Trevino for the San Martin land.

To documents A. and B. 0., the defendant below objected, on the grounds that the lands mentioned and described within them were within the littoral leagues of the coast of the Gulf of Mexico, and granted without •the approbation or consent of the National Executive, ,-and in violation of the fourth article of the colonization .act of 1824 ; that the documents show that more than «one hundred and twenty-five millions of square varas were covered by the grant in the potrero of San Martin to Ignacio Trevino, and that the grant violated the colonization law of the State of Tamaulipas.

These objections were overruled, and the documents A. and B. C. were read in evidence.

The prohibition contained in the act of August 18, 1824, has been held by the Supreme Court of the United States, in Arguello v. United States, 18 Howard, 548, 549, not to have applied to citizens of Mexico, but only to foreign colonists. In this case it is shown that there was a marked difference between the empresario contracts and grants to Mexican citizens. In conformity with the fourth article of the act of 1824, the empresario contracts required the sanction of the supreme government, while those grants made to families and individuals, Mexican citizens, were made valid by the approval of the territorial deputation. The Mexican Congress clearly defined this to be the law in 1824, by decree Ho. 72. By the act of the fifteenth of December, 1826, passed by the Congress of the State of Tamaulipas, it was declared that the Executive should take care that no town projected by foreigners be situated within ten littoral leagues of the coast of the Ghilf of Mexico, without the consent and approbation of the supreme executive being first obtained.

The objection, then, to the reading of these documents was properly overruled.

The great learning and ability displayed by counsel on both sides of this case has rendered its examination pleasant and agreeable; but we do not find it necessary to follow them, in this opinion, through the discussion so ably conducted.

We will proceed to state the points decided in the case as reported in 6th Wallace: “Where an early Spanish petition asked and obtained a grant of land by general boundaries, which were capable of an interpretation in two senses, one broader than the other, the terms of boundary open to question as to meaning were held to be rightly interpreted by the jury, from a survey carefully made on the ground by lines and monuments, and specifying the quantity within the lines (the grant referring to the survey and specifying the quantity granted), and by practical interpretation, from occupancy and otherwise, by the parties interested in the matter.

“In settling, in such a case, what has been granted, the quantity of land specified, as well as the boundaries named, and the survey as made, all are to be considered ; and by their united light the proper conclusion is to be reached.

“ The practical interpretation which parties interested have by their conduct given to a written instrument, in cases of an ancient grant of a large body of land, asked for and granted by general description, is always admitted as among the very best tests of the intention of the instrument.

“In construing such a grant, the circumstances attendant, at the time it was made, are competent evidence for the purpose of placing the court in the same situation, and giving it the same advantages for construing the papers, which were possessed, by the actors themselves.

“A document duly certified, ‘in the absence of a notary public, according to law,’ in the presence of a witness, by the alcalde of the jurisdiction, to be a true copy, made and compared by witnesses named, of the original record of proceedings had in the adjudication of lands granted by the government to persons named (in which proceedings it became necessary to ascertain a particular boundary line), was held to have been properly received in evidence in this case, under certain statutes of Texas, on a question relating to that boundary ; the alcalde’s official character and signature, and that of the attending witnesses, being proved, and that they were dead.”

We have been greatly assisted, in a proper understanding of these grants, by the map accompanying the brief of Messrs. Powers & Maxan, the attorneys of appellees, and that which accompanies the ease as reported in 6th Wallace.

It will be seen from the maps submitted for our inspection, that the western boundary of the Mexican grant is a line running due north from a point near the Tanque, and this is one of the calls of the Espíritu Santo grant. From this point the two lines will be seen to diverge—the western boundary of the San Martin and other tracts appears to run due north, allowing some ten degrees for variation east, while it is believed that the Spanish surveys of the period of the Espíritu Santo were run by magnetic courses, and the second course of the Espíritu Santo survey was run magnetically north, and this will account for the divergence of the lines from the corner near the Tanque, and the large gore of land lying between them.

The western boundary line, as claimed by the plaintiffs, was run upon deliberation and information derived from the government, and was marked at different points by fixed monuments. The plaintiffs proved their continuous possession up to this line. The proposition made by the attorneys for appellees, to relinquish their claim, if so required (in order to affirm the judgment of the court below), to the large gore of land lying between the two lines running north, does not meet the approbation of the court. We would put no construction upon the law or the evidence to extend the grant made by the Viceroy of Mexico, in 1781, to Jose Salvador de la Garza, beyond that which we believe to be the true eastern boundary of the Espíritu Santo grant. The grant of fifty-nine and a half leagues of land to one individual, though made at a time when of little value compared to its present worth, was princely in its character, and he who would ask for more, by implication or construction, should be held to make a very clear case of right before his prayer can be heard.

The grant of 1781 was made upon a survey conducted, apparently, with great accuracy; the surveyor himself gives us such a journalistic and historical account of his survey, day by day, defining his monuments -and witnessing them by natural objects, as utterly to preclude the idea of any uncertainty about the line. It does appear, from the evidence, impossible to suppose that the Espíritu Santo grant could ever have been intended to cover the San Martin, Santa Isabel and Buena Vista grants. If this had been intended, the corner located at the Tanque, from which the northern lines take their departure, must have been located at the mouth of the Rio Grande, and the lines, which run due north and magnetically north, would have followed the coast of the Gulf of Mexico, and the Laguna de la Madre, in a northerly course, bearing west.

We believe the land included in the gore to belong to the San Martin, Santa Isabel, and Buena Vista grants ; and we are further led to consider that the owners of those grants require no better title than that derived from the political authority of the State of Texas. (Article 4461, Paschal’s Digest.)

The objections set up by the appellant to the proceedings of the political arid judicial authorities of the State of Tamaulipas are not well taken.

The colonization law of the State of Tamaulipas did not, in all cases, confine the grant of lands within the limit of five leagues, but it was competent for the Executive, on a proper showing of the necessities of the individual, to nearly double the ordinary grant of five leagues; and of the existence of such necessities, the Executive was the proper judge, and it certainly does not lie in this court to impeach his action in the premises. (See Jenkins v. Chambers, 9 Texas, 228, 230; Polk’s lessee v. Wendall, 3 Cond. Eep. 291.)

This court has repeatedly announced the doctrine that they will defer to the political and judicial authorities of other governments, in the administration and interpretation of their own laws. (See Holloman v. Peebles, 1 Texas, 673; Hancock v. McKinney, 7 Texas, 384; Edwards v. James, 7 Texas, 382.) These authorities apply to the objection that the lands claimed by appellees were within the ten littoral leagues;' The grants appear to have been originally made to Mexican citizens, and it appears to have been entirely within the province of the supreme executive to have permitted such grants to be made.

It is fairly to be presumed from the long continued possession of the appellees, under both the Spanish and Mexican governments, disturbed by no action of the political authority, and questioned by no adverse claimant until so late a day, that their grant was in all respects regular and legal.

We are, then, of the opinion that the appellees have established their title to the lands claimed by them up to the western boundary as fixed in 1828 by the authorities of the State of Tamaulipas; and, coinciding with the views of the Supreme Court of the United States in the case of Cavazos v. Trevino, we affirm the judgment of the District Court.

Affirmed,