Thomas Holliday et als. v. Robert B. Harvey et als., 39 Tex. 670

Ogden, P. J. The record of this case and the documtents attached are so badly mutilated and defaced as to-render a considerable portion absolutely unintelligible, but from the mass of pleadings and evidence still legible-we are enabled to discover that the main question presented for decision is as to the validity of a claim of a grant of four leagues of land, situated in the forks of the-San Antonio and.

Guadalupe rivers, to one Jose Antonio-Valdez, made on the third of Jupe, 1834, by Jose Antonio Sancedo, vocal primero of the Most Excellent Provisional Deputation of Texas, and Political Chief ad interim of said province, and the rights of appellees to certain portions of the same lands, growing out of their possession under subsequent titles from the State of Texas. In Jones v.

Garza, 11 Texas, 209, Justice Lipscomb, delivering the opinion of the court, says in relation to the authority of Sancedo to grant'land: “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 1835, any power to grant or confirm land titles.” The court in that case, however, admitted that while the laws and official documents granting such authority to that office, if in existence and accessible, were the only evidence admissible to prove the authority, yet if the written law or written authority could not be procured, and the power depended upon verbal instructions or custom, then verbal testimony could properly be resorted to.

Upon the trial of the case now at bar, the authority of Sancedo to grant lands, as well as the confirmation by the general government of the grant to Valdez, was attempted to be established by verbal testimony; but that evidence was admitted over the objection of defendants below, and we think improperly admitted, because that evidence established the fact that the power to grant lands was given, if at all, by the' Spanish- decree "of 1805, and that the confirmation of this grant was by a special decree from the government; thus establishing the fact of the existence of written evidence of that power and confirmation, which should have been produced, and which alone was legitimate evidence of the character and extent of the power and the fact of confirmation.

There- were other well founded objections taken' to the-admission of this verbal testimony, which we think should have excluded the- same. The question of Sancedo’s authority to grant lands again came under consideration by this court in Norton v. Mitchell, 13 Texas, 50; and- though the court held that it was not properly before them for consideration, yet it was said in that case: 16 We decided- (in Jones v.

Garza), that the political chief had no such power, and if the same question was now presented" in this case we would regard it as settled, being fully satisfied with its correctness.” Again, the same question was presented to this court in Jones v. Muesbach, 26 Texas, 236.

This was a second suit brought upon the- case reported in 11 Texas: In- this case also the authority of the political chief was attempted to. be established by verbal proof ; and after a thorough review of the-whole question-, Chief Justice Moore, in delivering the opinion of the court, says-: “But we can see nothing in this: testimony, or of the laws to which we have been referred, to induce us to doubt the- correctness of the judgment of the court, in plaintiffs’ first suit, against the validity o£ the title.” We. have read; with great care and interest the able and learned brief of- counsel for appellants; and if the question discussed was how for. the first time before the court, for determination,, the argument and authorities so forcibly presented might demand very grave consideration.

But the q.uestion lias long since been decided), and, as- Justice Lipscomb said in. 1854, settled, by the highest court of the. State, and as various interests- have necessarily grown up, underthe faith of the permanency of the decisions- made, we are not convinced that it is now our. duty to. reopen that, question, and-unsettle'the: rights-and interests of parties which have been enjoyed for over twenty years under the authority of the solemn judgments of this court.

There is manifest error in the charge of the court to the jury; but as under this opinion no injury could result from the error to appellants, we shall not disturb the judgment on that account. The judgment of the District Court is affirmed. Affirmed.