P. Biencourt and another v. F. J. Parker, 27 Tex. 558

Moore, J. The exception to the deposition of Salazar, was-properly sustained by the court. It was taken by H. B. Fry, who-purported to act in the official capacity of a notary public. He had been at one time a notary public, but the parol evidence before the court, showed that he was subsequently elected and qualified as county clerk, and that for some time previous and at the taking of this deposition, he was well known and generally recognized as-having accepted that office, and was in the open, public and notorious discharge of its- official duties.

The constitution declares, that “no person shall hold or exercise at the same-time, more than one civil office of emolument, except that of justice of the peace." (Art. 7, sec. 26.) On the acceptance and qualification of a person to a second office, incompatible with one he is then holding, the first office is ipso facto vacated. (The People v. Carrique, 2 Hill, 93.) A resignation by implication will take place by being appointed to and accepting a new office incompatible with the former one.

It is said to be an absolute determination of the original office, and leaves no shadow of title to the possessor; so that neither quo warranto nor amotion is necessary before another maybe elected. (Rex v. Trelawney, 3 Burr., 1616; Milward v. Thatcher, 2 T. R., 87; Willcock on Municipal Corp., 240, 617; Ang. & Am on Corp., 255.) Having ceased to he de jure a notary public for some time previous to taking this deposition, it can not be pretended that this-single act, which is all that-he is shown to have attempted to de in this capacity, will constitute him a notary public de facto. In Burke v. Elliott, (4 Ind.

Law, 355,) it is said by the court, “The acts of officers de facto, are as effectual, as far as the rights of third persons or the public are concerned, as if they were officers de jure. What shall constitute an officer de facto, may admit of doubt in different cases. The mere assumption of the office by performing one or even several acts appropriate to it, without any recognition of the person as officer by the appointing power, may not be sufficient to constitute him an officer de facto.

There must be at least some colorable election and induction into the office ah origine and some action thereunder, or so long an exercise of the office and acquiescence therein of the public authorities, as to afford to an individual citizen a strong presumption that the party was duly appointed; and therefore, that any person might compel him, for the legal fees, to do his business, and for the same reason was bound to submit to his authority, in such official capacity.” The charge of the court, we are of the opinion, does not require a reversal of the judgment.

By an agreement of the parties, read in evidence upon the trial, it was admitted that a grant was made by the officers of the king of Spain, in Mexico in the year 1781, to Jose Salvador de la Garza, of a tract of land known as El Espiritu Santo, “ that this tract included the lands now sued for, and was in the year 1802, and thereafter, vested by devise and descent in Maria Francisca Cabasos,” under whom by other evidence the plaintiff in the court below showed title.

The only evidence upon which the defendants below, who are plaintiffs in error, relied to resist or rebut this apparent right to a recovery, was the parol testimony of two or three witnesses, to the effect that the city of Matamoros from the year 1830 until the arrival of the American army upon the Rio Grande in 1846, had claimed and exercised jurisdiction over the locus in quo as a part of the ejidos of said city, and that it had during said time been in the possession of one Miguel Salinas, who leased it as one of the labors (which "the city was accustomed to let within its ejidos to such parties as might desire the same,) at the annual rent of one dollar and fifty cents.

Although to some extent every case must stand upon its own peculiar facts, the principles upon which the courts are to be guided in the presumption of grants, may be said to be now well established by the former decisions of this court. (See Taylor v. Watkins, 26 Tex., 688; and Yancy v. Norris, ante, page 40.) The distinction, however, between the presumption of a grant from the government of a part of the public domain, and of the intermediate links in a chain of conveyance has not been overlooked by the court.

The practical application of the latter doctrine, will be found illustrated and applied in the case of Daily v. Starr, (26 Tex., 562,) and the earlier decisions there cited.

It does not appear from the record, whether the plaintiffs in error relied upon the evidence before the court below upon this point, to authorize the presumption of a grant from the State to the city of Matamoros of the land claimed as the ejidos belonging to the city; or whether they relied upon it as presumptive evidence of a divestiture, either by private or judicial act, of the title of the parties claiming under the grant from the king of Spain, under which the defendant in error makes title in favor of the city, and for the establishing of its ejidos for the benefit of its inhabitants.

Unquestionably the evidence in the case would not have authorized a presumption of a grant by the State. Nor in our opinion are sufficient facts shown to establish in this manner intermediate links in a chain of conveyance, if any such were alleged, and thus serve to pass the pre-existing title under the grant from the government. The testimony is loose and indefinite. It is not shown why other testimony of a more satisfactory character was not, or could not be adduced. The facts testified to, are too few and meagre in their character to authorize the presumption of such grave consequences.

The evidence at best, is but the imperfect recollection of a few ignorant, and it may be but partially informed persons about matters which it seems should have been shown by public acts remaining in the archives of the country, or abundantly and conclusively established as matters of general notoriety. If the law authorized the divestiture of the title of the original grantees of the land in favor of the city of Matamoros, it prescribed regulations by which this should have been done.

The jury were not authorized to presume these fundamental acts from the few isolated manifestations of a claim of title, which were shown by the testimony before them. Under the liberal practice which has been recognized in our judicial system, it can not be said that a discontinuance or abandonment of his suit by one of the plaintiffs, in actions of this kind, will abate the entire suit, or preclude a recovery by the other plaintiff.

Nor will the fact that there is only a verdict and judgment for one of the plaintiffs below, on the proof of his title, furnish a ground for the reversal of the judgment, at the instance of the parties against whom it is rendered. The petition alleges the use and occupation of the premises in dispute, to he of the yearly value of one thousand dollars, and also charges damages by reason of the wrongful and forcible possession taken thereof by the defendants. The prayer for judgment in the petition embraces both of these grounds.

Mesne profits are recoverable in actions of this kind, which are brought as well to try title as to recover damages, as a part of the plaintiff’s damages. That they are not so called in direct terms in the petition, is no reason why they should not be thus denominated in the verdict, and it should not on this account be set aside, when the testimony, as in this case, shows the amount of the money verdict is not larger than the plaintiff was entitled to recover. There are no other questions in the record which need be considered. The judgment is affirmed. Judgment affirmed.