Dauchy v. Devilbiss

37 Tex. 93

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

The historical minuteness of the very able briefs filed in this case renders it unnecessary that we should recapitulate the facts which led to the making of the contract out of which this suit has grown, though they may be dwelt upon with interest by the future historian of Texas.

The contract is as follows:

“ The Republic of Texas,

“Bis Pw'titi.

“Articles of agreement made and entered into, this, the 14th “ day of March, A. D. one thousand eight hundred and forty- “ five (1845), between Rafael.C. Garza and Maria Antonia Vera“mendi Garza, his wife, of the county of Bexar, in the Repub- “ lie aforesaid, of the one part, and Prince Charles of Solms “ Braunfels, as Trustee of the Association for the Protection of “ Emigrants in Texas, of the other part, as follows:

“ The said Rafael 0. Garza and Ma. Antonia Veramendi “ Garza, his wife, do hereby covenant, promise, and agree with “ the said Prince Charles of Solms as aforesaid, to sell, assign, “ grant and surrender unto him, as trustee-as aforesaid, all the “ existing right, title, and interest of inheritance that the said “ Ma. Antonia Yeramendi Garza has as heir at law of the “ estate of her deceased father and brother, both named Juan “Martin Yeramendi, in and to all that certain tract of land “ consisting of two leagues, more or less, situated, lying, and “ being within the county of Bexar, on the southwestern mar- “ gin of the waters of the Guadalupe river, and known as the ' “ Comal tract, the same being more particularly designated and “ described by the plot, boundaries, and description hereunto “ annexed, signed by the parties hereto, and made a part of this “ agreement—the said right, title, and interest of inheritance “ in .said Comal tract, herein covenanted to be conveyed, is not “ to exceed one equal undivided fourth part of said tract—for “ the sum of one thousand one hundred and eleven dollars; five “ hundred dollars of which sum is to them, the said Bafael C. “ Garza and Ma. Antonia Yeramendi Garza, his wife, in hand “ paid by the said Prince Charles of Solms, as aforesaid, at the “ sealing of these presents; and for the further consideration and “ upon the conditions hereinafter expressed, and that they, the “ said Bafael C. Garza and Ma. Antonia Yeramendi Garza, his “ wife, shall and will, on the thirtieth day from and after the “ termination of a .certain suit to be instituted in the District “ Court of said county, wherein the title to said tract of land “ is involved, provided the said suit, so to be instituted, shall “ terminate in favor of the said parties of the first part, on “ receiving from the said Prince" Charles of Solms, as aforesaid, “ the sum of six hundred and eleven dollars, being the balance “ of the considerations aforementioned, and upon the said party “ of the second part paying the entire costs of counsel or coun- “ seis employed or to be employed by the said party of the “ first part, at his own cost and expense, execute a proper eon- “ veyance for the conveying and assuring the fee simple of the “ said premises to the said Prince Charles of Solms, as aforesaid, “ free from all encumbrances; which conveyance shall contain “ a general warranty and the usual full covenants. “ And the said Prince Charles of Solms Braunfels, as afore- “ said, agrees with the said Rafael 0. Garza and Ha. Antonia “ Yeramendi Garza, his wife, that the said Prince Charles of “ Solms, as aforesaid, shall and will, on the said thirtieth day “ from and after the termination of the said certain suit to be “ instituted in the said District Court of said county, wherein “ the title to the said tract of land is involved, provided the “ said suit so to be instituted should terminate in favor of “ the said parties of the first part, and on the execution of “ such conveyance, pay unto the said Rafael C. Garza and “ Ha. Antonia Yeramendi Garza, his wife, the sum of six hun- “ dred and eleven dollars, being the balance of the considera- “ tion, and the entire costs of counsel or counsels, employed or “ to be employed by the said party of the first part afore- “ said.

“ And it is further agreed - between the parties aforesaid as “ follows:

“ The said Prince Charles of Solms Braunfels, as aforesaid, “ shall have the possession of the right, title, and interest of “ inheritance in the said two leagues tract herein covenanted “ to be conveyed, which is not to exceed one equal one-fourth “ part of said Comal tract, so soon as the same shall be set “ apart, divided, and the divisional lines thereof run by the “ Commissioners who have been appointed by the probate “ court of said county, to divide the estate aforesaid, between “ the lawful heirs of the same, and receive and be entitled to “ the profits thereof, until the said thirtieth day from and after “ the termination of the suit to be instituted as aforesaid, the “ party of the second part paying the taxes that hereafter ac- “ crue on the said premises herein agreed to be conveyed.

“ And it is further agreed between the parties aforesaid, that “ should the suit to be instituted as aforesaid prove unsuccess- “ ful by the party of the first part, then, and in that case, the “ party of the second party agrees with the party of the first “ part to pay a moiety or equal half part of the fee or fees “ of the counsel or counsels employed by the party of the first “ part, as well as the costs of the court accruing on said suit “ to he instituted as aforesaid.

“ And it is understood that the -stipulations aforesaid are to “ apply to and to bind the heirs, executors, and administrators “ of the respective parties to these presents, and that no error “ or misstatement in the description of the premises herein “ covenanted to be conveyed, shall vitiate this agreement.

“ And for the faithful performance of all and singular the “ covenants, conditions, and agreements herein contained, the “ parties to these presents, for themselves and for each of their “ heirs, executors, administrators, and assigns, hind themselves “ each to the other firmly, by these presents.

“ In testimony whereof, the parties of these presents have “ hereunto set their hands and seals. Done in duplicate or “ Ms partiti, at the city of San Antonio, on the day and date “ first above written.

“ Rafael C. Garza, [Seal.]

“ Maria A. Veramendi Garza, [Seal.]

“ Charles, Fringe of Solms, [Seal.]

“ Signed, sealed, and delivered in the presence of the un- “ dersigned witnesses:

“ Thomas J. Devine.

“ Ambrosio Rodrigues.”

Charles, Prince of Solms, in making this contract, acted as trustee of the “ Association for the protection of German Emi- “ grants in Texas,” to which position he had been chosen in the year 1844. The terms of the contract plainly indicate the object and purpose for which the land was' purchased, and the transfer of possession under the contract of sale. We are informed from the contract that the contracting parties were alike aware of a cloud upon the title of Garza and wife, and the final execution of the contract was made to depend upon the removal of this cloud.

About the year 1807, Baron de Bastrop obtained from the Viceroyalty of Spain a concession of four leagues of land bounding on the Guadalupe river, and embracing the land on which the city of Hew Braunfels is built, as well as Lot Ho. 139, now in controversy. To perfect the title it appears to have been necessary that the Spanish Intendante at San Louis Potosí should confirm the same. This latter step does not appear to have been perfectly complied with. The concession was presented to the Primero Vocal of the illustrious deputation of Texas, acting as political chief, and was confirmed, and possession given.

Twenty years afterwards, or about the year 1827, Juan Martin Veramendi purchased from the Mexican government a grant of two leagues of the land covered by the Bastrop concession. Thus it will be seen these titles came into serious conflict.

In the year 1839 Baron de Bastrop died, and the four leagues of land covered by the concession of 1807 were sold by his administrator to John S. Simpson, who re-sold the land to Enoch Jones and J. W. Smith.

Juan Martin Veramendi, senior, and his son of the same name, having also deceased, Mrs. Maria Antonia Veramendi Garza, who was the daughter of Juan Martin Veramendi, senior, had intermarried with Bafael C. Garza, and had inherited from her father and brother the lands described in the contract of March 14th, 1845.

Upon the statement of these facts it will be seen for what reason a suit was apprehended for the settlement of this title. By the law of Texas as it stood at the time this contract was entered into, some light may be thrown upon the contract, as well as a rule furnished for its interpretation. Article 5298, Paschal’s Digest, provides that, “ in all actions of trespass to try “ titles to lands, commenced within the time limited by law, “ the plaintiff should proceed with all convenient expedition to “ the trial of the same; and in case a verdict and judgment shall “ pass against him in such action, such verdict and judgment “ shall not be conclusive and definite against the plaintiff,, but “ at any time within one year the said plaintiff, or any other “ person claiming under him, shall have a right to commence “ his action for the recovery of said lands de novo, and prose- “ cute the same in the manner and with the expedition before “ directed; but, in case a verdict and judgment again pass “ against such plaintiff, then such second verdict and judgment “ shall be finally conclusive on the part of every such plaintiff, “ and he shall be forever barred and excluded from any further “ action or suit for the recovery of the same lands, and the right “ of the defendant shall be thenceforth finally settled and estab- “ lished against such plaintiff, his heirs and assigns.” * * *

Notice must here be taken of the pleadings and deraignment of title in this suit. It is an action of trespass to try title. The appellants brought their suits against the appellees, to recover possession of Lot No. 139 in the city of New Braunfels. The action was commenced on the 17th day of April, 1858. The defendants plead not guilty to the trespass, with a general denial. The venue was changed from Comal to Guadalupe county.

George Benfer, the original grantee of the German Emigration Company, was made a defendant. Julius Voelker, Ben-fer’s administrator, was afterwards made d party. Both Benfer and Voelker answered, specially setting up a title under the contract of March 14th, 1845, and prayed for a specific performanee of the same. They also plead several acts of tender.

On the 7th of September, 1869, one Christopher Tolle intetervened; adopted the pleadings of his co-defendants, and pleading further acts of tender.

On the 9th November, 1869, the defendants amended their pleadings, averred a payment of the money, principal and interest, due under the contract of the 14th of March, 1845, and prayed specific performance.

On the following day the plaintiffs excepted to the intervention of Tolle, and also to the amended answers of the defendants ; which was sustained as to Tolle’s intervention, and overruled as to the amended answers. The last amended .answer, filed on the 11th of November, 1869, asserts the right of Benfer to the lot in controversy, as an emigrant member of the German Emigration Company.

On the trial the verdict and judgment were for the defendants; a motion for a new trial was overruled, and an appeal taken to this court.

Some portion of the very interesting history of these German colonists, from whose settlement the beautiful and prosperous towns of Hew Braunfels and Fredericksburg have sprung, must here be introduced.

In the month of September, 1843, Henry Fisher and Burchard Miller concluded a contract with the Republic of Texas, for the colonization of six thousand emigrants on the waters of the Llano and San Saba. The -Association for the Protection of German Emigrants in Texas was organized, as is said in the briefs, by a company of princes, noblemen, and gentlemen in the dukedom of Hassau in Germany, in the month of May, 1843. In June, 1844, Fisher and Miller assigned their contract with the Republic of Texas to the German Emigration Company; and it appears to have been the original plan of the company to have supplied the emigrants with land in the Fisher and Miller colony.

Three ship-loads of emigrants landed upon the coast of Texas in the close of the year 1844. At this time Prince Charles of-Solms Braunfels was the trustee of the Emigration Company. He came to Texas in advance of the emigrants, for the purpose of making the necessary arrangments for their settlement and temporary subsistence. Finding the lands upon the Llano and San Saba far removed from white settlements, overrun by hostile tribes of Indians, and too far removed from any base of supplies to render their colonization practicable, he determined upon other locations for his colonists; and in pursuance of this change of the original plan, he located his first colony at Indianola, on Matagorda Bay, his second at Hew Braunfels, and his third at Fredericksburg. George Benfer was one of the colonists who was expected to settle on the Fisher and Miller grant; but, owing to the reasons already stated, Ms destination was changed to ¡New Braunfels. Immediately after the purchase of the Comal tract from Garza and wife, Prince Charles of Solms laid off the lands, or a portion thereof, into building and farm lots ; these were distributed to the colonists by an allotment, and Benfer drew the lot ¡No. 139, now in controversy. Thus it will be seen how he came in possession of the lot, and what privity of title there is between the' present defendants and Prince Charles of Solms ; and with what right and propriety the appellees defend their title under the contract of March 14th, 1845.

On the 10th day of July, 1846, Enoch Jones and others, claiming title under the Bastrop concession, filed their suit in the District Court of Bexar county against Rafael C. Garza and others claiming title under the Veramendi grant of 1827. At this time John O. Meusebaeh was the trustee of the German Emigration Company, and was made defendant in the action as such, and defended under the contract of March 14th, 1845. Garza in his answer claimed title to the land not embraced in the contract with Prince Charles. This suit was decided on the 14th day of December, 1847, in favor of the defendants. The plaintiffs took an appeal to the Supreme Court, and on the 20th of December, 1853, this court affirmed the judgment of the District Court. (11 Texas, 186.) On the 23d of January, 1854, the mandate was filed in the office of the district clerk.

It now becomes necessary to notice that ¡Rafael C. Garza had died before the affirmance of the judgment in the Supreme Court, and his widow had intermarried with Antonio Sierra.

It is contended on the part of the appellant that Prince Charles of Solms and those who claim in privity with him were in default after the expiration of thirty days from the affirmance by the Supreme Court of the judgment in Jones et al v. Garza et al. Whether time was of the essence of this contract, we will hereafter present our opinion. But it appears from the record that no effort was made to put Prince Charles and those claiming under him in default, for near eleven months after the action of the Supreme Court. But, on the 14th day of November, 1854, the now Mrs. Sierra, without the concurrence in the instrument of her husband, Antonio Sierra, made her separate power of attorney to I. A. Paschal, authorizing and empowering him to receive and receipt for the money due her under the contract of March 14th, 1845, and upon the receipt of the money to execute in her name a deed to the land, and, in case of refusal, to tender back the five hundred dollars originally paid by Prince Charles, together with interest; and under the authority of this power, the attorney, Judge Paschal, in his evidence states that he made a demand of the money upon the Mayor of New Braunfels, also upon M. A. Dooley, the attorney of the German Emigration Company, and also upon H. Fisher, the reputed agent of the company, and that he was refused the money by each of these persons.

We may here remark, though we do not consider this as material to the decision of the case at bar, that under the power of attorney, as found in the record, Judge Paschal could not have made such a deed as the contract of March 14th, 1845, calls for. The statute pointed out the way, and the only way, in which the wife could convey her separate property. The husband of Mrs. Sierra did not join her in the execution of the power; there was no privy examination of the wife, nor were there even witnesses to her execution of the power. Whether the husband, by virtue of his marriage, acquired any interest in his wife’s lands, or not, is a matter totally immaterial; the power was wholly insufficient to enable the attorney to make a good deed for the wife’s land, and no act of the attorney under this power could place Prince Charles, or those claiming in privity with him, in default.. But we regard this branch of the case as one entirely subordinate to that upon which we shall now proceed to remark.

By the terms of the contract between Prince Charles and Garza and wife, its final execution was deferred until the thirtieth day after the termination of a suit which was to settle the controversy between those claiming under the Bastrop concession, and those claiming under the Veramendi grant. This, in our view, was clearly the meaning and intention of the contracting parties.

But our law, as already quoted, shows clearly that a controversy of this kind could not be determined in one suit. The law provides that before a plaintiff shall be bound to give up his claim of title to land in controversy, he is entitled to a second suit; and as all parts of the contract, taken together, convince us beyond a doubt that it was the intention of the parties that this controversy should be ended before the balance of purchase-money should be paid or a deed demanded, we have no hesitation in saying, from the facts in the case as well as the law, that there never has been a default on the part of Prince Charles, or those claiming in privity title under him.

Let us look to some of the leading facts. On the 28th of November, 1854, or just two weeks after the execution of the power of attorney by Mrs. Sierra to I. A. Paschal, Enoch J ones and others commenced their second action in the District Court of Comal county, against John O. Meusebach, the trustee of the German Emigration Company, and others, to recover the land covered by the Bastrop concession; and now again the Bastrop and Veramendi titles are made to fight their battle in the courts. And if it be true, as asserted in the brief of appellees’ counsel, that I. A. Paschal is one of the attorneys of record for J ones in this second suit, the fact is certainly remarkable that his power of attorney was but fourteen days old. Had he made demand upon the Mayor of New Braunfels, upon Dooley, the attorney of the company, and Eisher, the reputed agent, living at Austin, and yet within fourteen days’ time counseled his client that the Bastrop title was good against the Veramendi title %

These are facts which we would not mention in any spirit of criticism against a gentleman who has left behind him a name so honored by the profession and the community in which he lived; but the very eminent professional learning of Judge Paschal makes the fact important that he could not have regarded the conflict of title as settled at the time he received the power of attorney from Mrs. Sierra, and acted under it. Else, why did he almost contemporaneously bring a suit, the object of which was to set aside and destroy the Yeramendi title altogether ?

The second suit of Jones et al., claiming under the Bastrop title, is commenced in 1854. And, on the 24th April, 1855, the appellants in this case, Sierra and wife, Dauchy, and Higginbotham, filed their plea of intervention in the case of Jones et al. v. Meusebach et al., asking to defend the suit, and claiming title to themselves in the land. The venue in this case seems to have been twice changed. Although these interveners subsequently withdrew their plea of intervention, the case was tried upon the Bastrop and Veramendi titles; the verdict and judgment were again for the defendants; an appeal was taken to the Supreme Court, and the judgment of the District Court, on the 24th of November, 1862, was re-affirmed. (See 26 Texas, 235.) Here, then, was a determination of the litigation growing out of the conflict between the Bastrop and Veramendi titles.

Let us, then, see what is the legal and equitable status of the parties at this time.

It is in proof that, at the spring term of the District Court of Guadalupe county, for the year 1855, Julius Eggeling, then Mayor of New Braunfels, made a tender to Wm. B. Leigh, one of the attorneys of Mrs. Sierra, of the full amount of the principal and interest due her from Prince Charles under the contract of March 14th, 1845. Again, in the spring of the same year, Eggeling made a tender to Mrs. Sierra herself. These tenders were refused.

On the 19th of December, 1862, less than thirty days after the determination of the last suit of Jones v. Meusebach, H. Seele, then Mayor of New Braunfels, made the third tender to Messrs. Newton and Tunstall, attorneys of the appellants in this case. This was again refused. A fourth and fifth tenders were made and declined, and finally, on the 18th of November, 1869, the money, amounting to the sum of thirteen hundred and eighty-four dollars and twenty-five cents, was paid on tender to the appellants into the District Court of Guadalupe county, where it still remains.

It is scarcely material for us now to state further our opinion as to the time in which this contract was to be executed; we have stated that we regard it as the intention of the parties to the contract of March 14th, 1845, that the controversy between the Bastrop and Veramendi titles was to be finally settled, and thirty days given within which to execute the contract. Under our law, this controversy could not be legally settled without the second action of trespass to try title; and long before the determination of this second suit the balance of the purchase-money was tendered, and the facts show that the tender has been kept up until the present day.

A full examination of all the facts forces us to the conclusion that both the law and the equities in this case were fairly settled in the District Court. Prince Charles of Solms, acting in a benevolent and praiseworthy enterprise, undertook to pay, and did pay in advance, nearly one-half the purchase-money, at a time when the price fixed upon the lands was doubtless a fair valuation, and at the same time took upon himself the expense of litigating a doubtful title. He settled his friends and countrymen in good faith upon the lands he had just purchased, endeavoring, as far as possible, to meet the expectations with which they had left their far distant homes, .and emigrated to this new and comparatively unsettled country.

They, with their characteristic industry and frugality, have toiled and endeavored, and have succeeded in beautifying and rendering comfortable their homes. A city has grown up; property has enhanced in value, and the country has greatly benefited by the incoming and good endeavors of these people. Ho court of equity, unless compelled by the stern principles of law, and founding its action upon their manifest default, would now sweep away, by one cruel decree, the homes of these people; but, in the opinion of this court, they have never been in default, but have done all in their power to make good in every particular the contract of their illustrious benefactor, one of the projectors of their colony, the founder of their city.

The legal principles enunciated in this opinion are found within the plainly beaten paths of the law.

The able counsel on both sides of the case have done themselves honor by the strength and ability of their arguments, and the untiring industry with which they have prepared their briefs.

The judgment of the District Court is affirmed.

Affirmed.