Sarah Jane Monroe and Another v. Albert W. Searcy and Others, 20 Tex. 348

Hemphill, Ch. J. The great question in this cause is whether Mrs. Patrick, the mother of Sarah Jane Munroe and John N. Patrick, the plaintiffs, and through whom they claim, conveyed away, in her lifetime, her interest or share in the land in controversy. That she did make such sale verbally, is proven by one witness ; but it is urged by the appellants, that by the Spanish law in force at the time, viz: in 1834 or 1835, the fact of such sale should be proven by at least two credible witnesses; citing 1 White’s Recop. p. 280.

There is no doubt that in Spanish jurisprudence, when a fact is to be established by witnesses, there must be two to produce full proof and faith. (1 White, p. 280; Escriche, Dicc. vebo Testigo.) But the rules of evidence under the laws of Spain are no longer in force. Facts, on judicial trials, are to be proven under the rules of evidence as known to the Common Law. Where a certain number of witnesses are required by our former laws for the form and solemnity of

an act, such act, as a general rule, without the specified number of witnesses, could not be sustained. But the ancient rules as to the number of witnesses, their ages and other qualities and circumstances, required in the proof of ordinary facts, have fallen with the old system. Under the Common Law, the testimony of one witness is sufficient proof of a fact. If, under the ordinary rules of evidence in our ancient jurisprudence, two witnesses could have established the fact of a verbal sale of property, one witness would suffice for that purpose under the rules of evidence as now recognized.

No doubt the evidence of two witnesses would be more satisfactory ; and if verbal sales of lands were permitted under our present laws, it might be well considered by the Courts whether, for the security of rights, the testimony of more than one witness to a transfer should not be required. But such rule has not been hitherto enforced; and to establish it now, with reference to ancient transactions, might work a serious detriment to a large class of rights dependent on such sales.

The testimony of the witness Joel Ponton is quite clear, that he, with the other heirs of his father, concurred in selling their shares of this land to their brother, Andrew Ponton, one of the heirs; that their sister, Mrs. Patrick, then the wife of James B. Patrick, the mother of the plaintiffs, agreed with the rest to sell to Andrew; that Andrew paid the witness for his share; is positive that he paid Mrs. Patrick a part, and he believes the whole, of her portion; that Mrs.

Patrick acquiesced in the sale, and was perfectly satisfied with it, but before a deed was made or possession taken, all parties, on the Mexican invasion, moved to the East; that Andrew Ponton, with other members of the family, returned in the fall or winter of 1837 or the early part of 1838, and shortly afterwards went upon and improved the land he had purchased from the heirs. This possession was taken before the death of Mrs. Patrick, under the said agreement of sale. After the death of Mrs.

Patrick, which occurred in 1838, in order to carry out the agreement of sale, and without any new agreement, the widow of Wm. Ponton, the grantee of the land, being the mother of the heirs, and the surviving children joined with James B. Patrick, the husband of Mary .Jane Patrick, then deceased, in executing, on the 16th of April, 1839, a conveyance to the co-heir Andrew Ponton for three-fourths of the land. The evidence establishes the important facts that Mrs.

Patrick did sell, in her lifetime, her interest in the land; that her vendee took possession in a reasonable time after the sale; and that he and those claiming under him have been in possession ever since. That the husband, James B. Patrick, consented to the sale by his wife is most manifest from the evidence. The tenor of the whole of the transactions evinces that the husbands of the female heirs had a sufficient regard for their rights with reference to the property. Mr.

Patrick went with the other heirs to examine the land, and agreed with them that it was not susceptible of an equitable division, and united with the others in reporting this fact to his wife. His joinder in the conveyance made after the death of his wife would have no effect upon her rights, but it is a circumstance among others, from which may be inferred his assent to the previous transaction. We have heretofore decided, that under the laws of Spain a verbal sale of lands, accompanied with possession, was valid. (Scott and Solomon v.

Maynard, Dallam.) By reference to Spanish commentators and jurists it may often appear as a rule, that the sales of immovable property must be made by public instrument before a Notary. The reason of this rule is explained in Gonzales et al. v. Sanches et al. 4 Martin, N. S. It is shown to have been derived from a law of the Nueva Recopilación, 9,17, 10; and that the law was designed and expressly intended as a fiscal measure, and enacted to facilitate the collection of the alcabala duty; and as the province of Louisiana was exempt from that duty, the law was never considered as extending to it.

This law is the Law 14th, Lib. 10, Tit. 12, of the Novissima Recopilación, and it is well said by the Court in Louisiana to have been intended merely to insure the collection of the duty of Alcabala. This duty was an ad valorem, tax, levied for the use of the Government, on the price of property at all sales or exchanges. The

preamble (as it may be termed) shows the intention to guard against injury to the treasury, from secret sales; and that therefore sales and exchanges of real property should pass before a Notary. There are several provisions of the law, and of the royal circular of the 7th June, 1795, issued in aid of the law; but they all manifest the single purpose of securing the tax for the Government. It is questionable whether, in Spain, the Alcabala would have been levied on the transaction or sale in 1835.

Such tax is not imposed in cases of division of an estate, although money or other property may pass between the heirs to equalize their shares of the inheritance. (L. 20, Tit. 12, Lib. 10, Nov. Rec.; Escriche, verbo Alcabala.) But however that may be, it is believed that the Alcabala was not levied on sales or exchanges of property in Texas. Certainly it never was imposed or enforced on sales or exchanges of property among the colonists.

By the 32d Art. of the Colonization Law of the State of Coahuila of the 24th March, 1825, the colonists, for the first ten years after a new settlement was founded, were free from all taxes, of every denomination. The contract for the settlement, under which the land was granted, was not made until the 4th of June, 1825. Some time must have elapsed before the foundation of the settlement, and the ten years would not expire until after the. commencement of the Revolution.

But we do not intend to intimate that a verbal sale under the Spanish law, as it existed in Texas, could be invalidated from considerations with reference to the Alcabala duty. The validity of such sales was recognized by early decisions, and the rule will not be disturbed. That such is the general rule of Spanish law is unquestionable. In Partidas, 5th Tit. L. 6, it is said sales may be with or without writing.

The rule is expressed in like terms by commentators. (Vide Febrero Reformado, Madrid Edition of 1852, vol. 2d, p. 404; Sala, Lib. 2, Tit. 10.) The only change in the law was with a view to the certain collection of the revenue, and this we have shown has been allowed no force under our decisions, and has certainly no application to the sale in question. Isabella Ponton, the widow of Wm. Ponton, was entitled to the half of the league in her community right; or if half be conveyed to Andrew for clearing out the title, she was entitled to the one-fourth. This portion has in effect been claimed and sold by her.

At all events, her claim, and that of Andrew under the sale, include the whole of the land, and leave nothing for distribution among the plaintiffs. Judgment aErmed.