Jones and another v. Garza and others, 11 Tex. 186

Lipscomb, J. The appellants in this Court, broifght suit in the Court below, against the defendants, to recover four leagues of land. In support of their'title, they relied on a grant issued by Jose Antonio Sancedo, Yocal Primero of the Most Illustrious Deputation, and Political Chief, ad interim, of the Province of Texas, on the 8th of June, A. D., 1824, to the Baron Bastrop. In the Court below, after hearing the evidence, a jury was waived by the parties, and the case was submitted to the Judge, on the facts and the law. The judgment was for the defendants, from which the plaintiffs appealed.

As the plaintiffs must depend upon the validity of their own title, it is not our purpose to decide upon the validity of the Veremendi grant, under which the defendants claim; nor is it considered necessary to decide upon the various rulings of the Court, in the progress of the trial, and presented by the several bills of exception, further than to determine whether any of such rulings, against the plaintiffs, could affect the validity of the title under which they claim.

It is objected that the grant of Sancedo to Bastrop is void: first, for the want of authority in the grantor ; and secondly, that it had been adjudicated to be invalid, and the lands, comprehended in it, declared to be vacant, at the time of the grant to Veremendi. We propose to consider the last, first: If the title of Bastrop had been adjudicated by authority, shown to be competent in law, its decision would be conclusive; or if the authority had not been fully shown, the presumption that they had authority to act in the capacity assumed, would be held sufficient, until a want of authority was shown.

The propriety of indulging this presumption, in such cases, cannot now be considered an open question in this Court. (See Hancock v. McKinney, 7 Tex. R. 384; Titus v. Kimbro, 8 Id. 210; Jenkins v. Chambers, 9 Id. 167; Bissel v. Haynes, Id. 156.) But it is very clear, that in this case, the evidence shows no such adjudication, on the grant in question, was ever made; and the adjudication spoken of by the witness ¡Navarro, had no reference to this grant: so far from it, that he testified that he did not know of its existence, until within a few days of the trial.

His evidence had reference to the inquiry, made when Veremendi applied to have his grant located on the same land; that it was adjudged to be vacant, without any reference to the validity of Bastrop’s grant; and he says that if its existence had been known before extending title to Veremendi, Bastrop’s grant would have been referred to the Governor, or superior authority, to dispose of its validity. This objection is therefore not well taken. We do not wish to be considered as ruling that an adjudication to set aside a previous grant, in all cases, is necessary.

In some it may not be, as has been held by this Court. (Holliman’s heirs v. Peebles, 1 Tex. R.) The authority of Saucedo, to grant land, is denied. It is contended that his official character of first of the Provincial Deputation, and Political Chief of the Department, conferred upon him no power to grant the lands appertaining to the public domain. What credit should be accorded to the acts of an officer, assuming to discharge an official attribute, in the absence of all evidence to show what are his precise powers, has been too well settled in this Court, to allow a discussion on the subject.

We have held and do hold, that he is presumed to act within the scope of his legitimate powers. We did not indulge the hope, when the recognition of this principle was enunciated and adopted, that it would receive the unqualified and universal approbation of the profession. Experience would have taught us but little, if we had yet to learn, that the plainest principle of jurisprudence, founded on the purest equity, and sanctified by the wisdom of ages, when it interposes a barrier to long cherished hopes, is denounced as a novelty, unknown before to the jurist of the age.

But one thing is certain, that we will never be driven from our own solemn conviction of the truth and soundness of the principle, by bitter and sarcastic allusions to it. But, although the presumption is, as we have stated, in favor of the legality of the act so done; yet, it is only a presumption, that would at all times give way to evidence to show that the authority exercised, did not appertain to the person or officer so exercising it. The mode and evidence, by which this want of power may be shown, like the proof of other facts, must depend upon circumstances.

If the powers of the officer are defined by written law, known and accessible, it would be the best evidence; but, if the written law could not be procured, nor written instructions, but the powers depended on verbal instructions, or upon custom, then verbal testimony could properly be resorted to.

If there is any written law defining the powers of the Political Chief of the Department, in relation to the granting of the public domain, it has not been shown ; nor are we advised of its existence; and, in the period of a few years from the subversion of the Spanish monarchy, to the settlement of a regular organized government under the Republic, it may well be supposed, that it would be difficult, if not impossible, to find any written law or instructions defining and regulating the powers of the various officers employed in the public service.

Under such circumstances, it is not believed that secondary evidence should be excluded. The only positive verbal testimony, received on the trial, in relation to the powers of San cedo, as Political Chief, is that of Antonio Navarro, a witness, who from his being, a short timé subsequent to the date of the confirmatory grant to Bastrop, so much employed officially in the issuing titles from the government to numerous grantees, had facilities and opportunities to be well acquainted with the system in use, as well as with the archives of the government in relation to land titles.

His evidence is positive and explicit, that “ The first power “ to grant lands after the Mexican Independence, first com-u menced with the State Colonization Law. Then there were “ officers to grant land. I considered Saucedo had no power “ to grant land, in 1824.

The Law of Colonization of 1825 “ having been published, the government ordered the Political “ Chief, that all titles that had not been paid for, those given “ by incompetent authority, or those which were incomplete “ under the Spanish Law, should be completed under the Col- “ onization Law, and that titles, given by incompetent author- “ ity, as Alcaldes and Political Chiefs, during the time the “ State Government did not exist, should be completed under “ the Colonization Law.

These orders were repeated at vari- “ ous times, after the publication of the Colonization Law. “ They existed in the archives at this place. The grants made “ by Saucedo, in 1824, which were not subsequently confirm- “ ed under the Colonization Law, the government disposed of; “ and the Governor of the State instructed the Political Chief “ to make it known. The parties were notified by him.

In 66 fact, many titles were never claimed, they being considered “ null and entirely terminated and ended, null and of no value. “ This order existed in the archives of Bexar.” It was proved that they were not to be found among the archives in the office of the County Court at Bexar. In addition to the evidence of Mr.

Navarro, it will be seen in the whole proceedings in relation to Austin’s colony, commencing with a petition to the Governor of Texas, and by him referred to the Commandant General of the Eastern Provinces, before the Revolution, and the concession of the Governor of Texas after the Revolution, its ratification by the Constituent Congress of Mexico, the appointment of a Commissioner by the Governor of Texas, that it was all through the Governor, Sancedo, the Political Chief being only recognized, not as the granting officer, but as the medium of correspondence, down to within a month of the date of the supposed grant of confirmation by him to Bastrop.

It shows that at that time, titles were extended by a Commissioner, appointed by the Governor, and acting under his authority. (See 1 White Recopolacion, Laws, Orders and Contracts for Austin’s Colony.) There is not the slightest vestige of proof, either written or verbal, that the Political Chief of the Department of Texas, had, under the authority of Spain or Mexico, until after the Colonization Law of 1825, any power to grant or confirm land titles. It appears that the only connection he ever had, on the subject, was as a medium of correspondence, between the granting power and the grantee.

If the Political Chief had more extensive powers, comprehending authority to grant or confirm titles, at the time Sancedo discharged the functions of that office, it was an exception to the laws and usages on the subject; and as an exception, the party claiming the benefit of such exception, ought to show that the exception really existed. The presumption in favor of the legality of the acts of an officer, of itself, would not supply the want of such proof. There was an effort made in the Court below, to impeach the grant of Sancedo, in a direct way.

A witness was called to prove that he was the person whose name appeared to the grant, as one of the assisting witnesses, and that he did not sign his name, as an assisting witness, and that he could not write his name. This evidence, on the objection to its admissibility, was excluded by the Court. We recognize no rule of the laws of evidence, that would exclude such testimony ; and it would seem that the wish to exclude it on the part of the plaintiffs, would cast a suspicion on the genuineness of the grant and would be an additional circumstance, rebutting any presumption in favor of the validity of the grant.

We believe from the views expressed, that the jury would have been fully sustained in finding that the grant of Sancedo was without authority of law, and a usurpation of power. The judgment is therefore affirmed. Judgment affirmed.