David H. Williams v. N. H. Conger et al., 49 Tex. 582

Moore, Associate Justice.

The first ground assigned by appellant for the reversal of the judgment in this case, is the overruling of his objections to the paper writing offered in evidence by appellees, purporting to be a letter of attorney from Miguel Rabago to Victor Blanco, dated June 8,1832, authorizing him, by himself or through some one in whom he had confidence, to procure title and take possession of the eleveri leagues of land, for which a concession in sale had been given him by the proper authorities; and further authorizing said Blanco to sell, exchange, or alienate the same, as he might see fit; and the indorsement on said instrument, purporting to be given April 3, 1833, by said Blanco to Samuel May Williams, authorizing him, as agent or attorney, to solicit title to and take possession of said eleven leagues of laud.

The signature of Blanco to the delegation of authority to Williams to apply for possession and title to the land, was proved to be genuine. But there was no direct testimony whatever of the execution by Rabago of said letter of attorney to Blanco, but it was claimed'to be admissible solely upon the ground of its being an ancient instrument.

Appellant, however, insists that it was error to admit it as an ancient title paper: first, appellee had not shown that it came from the proper custody; second,, it was not free from suspicion; third, there was no proof showing that it had been so acted on as to afford corroborative evidence of its genuineness. Unquestionably, when a paper is offered in evidence solely upon the presumption of its genuineness from its apparent age, if it appear to he lacking in those indicia of a genuine instrument it should in general be excluded, though in other respects properly admissible as an ancient instrument.

But an inspection of the record shows beyond all question that neither of these objections to the admissibility of this instrument, if properly made in the court below, (which, however, was not the fact as respects the last two,) should have been sustained. Evidently, the probative value or effect of such instruments depends in a great degree on their having been contemporaneous with the fact which they are relied upon to prove.

It is, therefore, held that it should, at least, prima fade appear that the instrument comes from or was found where it might reasonably be inferred it should have been if genuine, or otherwise properly accounted for. Now, where should we have expected to find this instrument ? Certainly we would infer that it should have.been placed by the commissioner to whom it was presented either with the papers pertaining to the title which he issued for the land, or have been returned to the party by whom it was presented to him.

But as the title shows that it was not incorporated into it, as is most usual where the power is an authentic act, we should expect to find it in the custody of Williams, in whom the title and possession of it purports on its face to be vested; or if not, that he would have transmitted it to his principal, Blanco. But as the latter appears to have taken the precaution to have another power of like effect from Rabago, or to have secured an official copy of this one before remitting it to Williams, there was no necessity for its being returned to him.

In the light, then, of all the facts exhibited in the record, we think that it is manifest that the paper was found where the inquirer would naturally have first gone in search of it. But if we admit that Williams, to whom it had been transferred, was not the most appropriate custodian of it, still it cannot be denied that among his papers, certainly, was a reasonable and rational place, under the circumstances, for it to have been found; which is all that is required. (Croughton v. Blake, 12 M. & W., 205.) There was nothing shown by the instrument to cast suspicion upon its genuineness.

It was an old and faded paper, and was apparently of corresponding age with its purported date of execution. It was free from erasure, interlineation, and alteration, and exhibits no apparent blemish of any character whatever.

Appellant insists, however, that the genuineness of the signature of Rabago was impeached by his witnesses; and that it was shown by appelleés themselves, that Blanco must have had this same power, or copy of it, in the city of Mexico, in 1836, when he conveyed the laud to Lagurenne; which facts, he insists, cast such suspicion upon its genuineness as to have precluded its admission as- an ancient instrument.

But the ground of suspicion from which such instruments must be freed before they are admissible in evidence, refers to something apparent upon their face, or shown by some fact or circumstance directly connected with them, and not to extraneous testimony, which is for the jury in passing upon their genuineness, after they are admitted. (1 Greenl. Ev., sec. 21.) Unquestionably, it cannot be correctly said that the instrument here in- question had not been so acted on as to afford some presumptive corroborative proof of its genuineness.

It was acted on by Blanco when he empowered Williams to apply for a title and possession of the land; also, by Williams when he presented it to the commissioner; and, again, by the commissioner when he issued the title. But it is said that Williams may have acted under some other power. Certainly, such conclusion is wholly unwarranted, and would be most unreasonable. Appellant shows that he could not have acted under authority conferred bpon- him directly by Rabago.

Eo circumstance has transpired from the date of the grant to the present time to justify the slightest inference that any one else than Blanco ever claimed to have authority to authorize him to make the application on which the title was issued. This power was unquestionably transmitted to him by Blanco, for his signature to it was proved, and not denied by appellant. Blanco must have had in his possession the concession from the governor authorizing Rabago to purchase, the land, and must have transmitted it with the power to Williams, for he certainly knew that Williams could not get the title without it.

There is no other reasonable ground to account for its getting into Williams’ hands, or for his subsequent action. The power accompanying his application was not retained by the commissioner. The testimonio of the title, which was delivered to Williams for his principal, he transmitted to Blanco, who had it, and passed it to the purchaser, when he subsequently sold the land, in the city of Mexico, to Lagurenne.

The land has been claimed and held under and by virtue of this power from Rabago, or copy of it, which Blanco could have procured, if he desired, even without the concurrence of Rabago, (Eschriche, 686-688,) from its sale, without question or adverse claim by any one for nearly forty years.

The authority to sell was openly and publicly claimed and exercised by Blanco, and the purchasers under him, before and in presence of a number of different officers and their assisting witnesses, by the payment and registration in the proper office of the receipt for the alcabala or tax on its sale, and by having the notarial acts of sale duly authenticated by the College of Rotaries. Payment of the amount claimed by the Republic of Texas as due it for the land, was also made after its separation from Mexico; and in a reasonable time after the

section of the State in which the land is situated began to be settled, actual, open, visible, and notorious possession and control of it was taken by the parties in whom the title under this power was then vested.

In connection with the many acts of the different parties who have been and are claiming this land, or portions of it, under this instrument, the fact is not without significance, that not one single act was done, either by Rabago or his wife, or her second husband, from the date of this power to the time of appellant’s purchase, a period of over forty years, tending to show that they had, or supposed they had, any right or title to it; and if we are to believe Mrs. Eabago, now Mrs. Cortez, no steps whatever were taken by Eabago to obtain a title for the land which he was authorized by the concession to acquire.

When he returned in 1828 from Monclova with the concession, it was placed in a trunk with other papers, and remained there, as she supposed, though not seen by her during the time, until the fall of 1833, when, as she says, it was stolen; and from that time until the sale of the land to appellant, in 1873, no effort is shown to have been made, either to recover the concession or get a duplicate or an authentic copy of the original from the office of the Secretary of State, as doubtless might have been easily done, if in fact it had been lost or stolen.

Eabago certainly must have known, if a title had not been obtained on the concession before the spring of 1836, that no land could be acquired by virtue of it in Texas. If the title had been issued prior to that date, the records and reports of the commissioners who were intrusted with the duty of extending titles on such concessions would point to the locality, and enable him, upon proper inquiry, to have learned on whose application the title was issued. The testimony in the record shows that he could, by proper inquiry, have ascertained when and upon whose application the title issued.

The records and papers of the commissioner (Alderite) w'ho issued the title were returned to and deposited in the proper office at the capital of the State, from which it was withdrawn by appellant subsequent to the bringing of this suit.

If Eabago had made the least effort to inform himself in regard to it, he would no doubt have learned that it had been issued on the application of Williams, a well-known citizen and public officer in the colonial enterprise in which the land was situated ; and had application been made to him, he would no doubt have learned under what authority and at whose instance he had made application for it,, and what he had done with the testimonio of the grant.

True, any inquiries which should have been made by Eabago in Texas, would have been attended with great difficulty and embarrassment, from the fall of 1835 until the close of hostilities between the government of Mexico and the United States, in 1848; and his failure to make them during this period should he overlooked or excused. But an examination of the public records of the State of Coahuila would have put him in possession of facts which, we can hardly doubt, would have easily enabled him to have ascertained how and by whom the land was then claimed.

It can hardly be supposed, if he had made inquiry of Alderite, who issued the title, that he would not have learned that Williams was acting at the instance and under the authority of' Blanco, who was claiming the land under letter of attorney from him.

But admit that no laches can be imputed to Eabago in failing to inform himself as to his rights in respect to this land after the commencement of the war between Texas and Mexico, surely this cannot be done after the treaty of Guadalupe Hidalgo, which made ample provision- for the assertion by citizens of Mexico of their rights to land in Texas; and although Eabago died in 1848, and his widow married in 1849, and continued to be femecovert until 1875; yet these facts do not rebut the presumption or inference that the true owner of property will not, during a long period of time, totally neglect to assert his right or give some notice of his title.

The conclusion from the facts to which we have referred, and others exhibited in the record to wffiich we have not adverted, are, in our opinion, amply sufficient not only to prove that the letter of attorney from Eabago to Blanco had been acted on by Blanco, and those claiming the land through him under this instrument, to authorize its admission in evidence as an ancient instrument, hut if this was the question before us we could hardly hesitate to say that they wrere not fully sufficient to warrant the jury in finding they conclusively proved its due execution as a question of fact, after it was admitted.

Thé various circumstances, extending through a period of forty years, which lead to this conclusion and repel the reasonableness of any other hypothesis, can, it is believed, hardly be successfully rebutted or outweighed by the necessarily treacherous memories of the few living witnesses who were contemporary with the transactions. Even if the power had not been produced, the facts disclosed in the record were certainly more than sufficient, under the former decisions of this court, to have justified the presumption of its existence and due execution. 3.

The court did not err in overruling the objection to the copy of the power of attorney from Lagurenne to Prioland.

A copy, if duly authorized, of the protocol given by the notary in charge of the records or archives of the notary before whom the sale was passed, and by whom the matrix or protocol is registered, is entitled, by the law under which this instrument was executed, to equal credit as the original itself. (Eschriche, 886-896.) A transfer or conveyance of land by act of sale of this character, before a notary beyond the limits of Texas, has long been recognized by this court as valid and binding, and a duly certified copy of the notary’s record as admissible to prove such sale. (Watrous v.

McGrew, 16 Tex., 512; 4 Martin, 283; 13 Johns., 58.) The notary purports to act, in making the copy offered in evidence by appellees, in obedience to a judicial order to this effect, ■ His certificate and seal to the copy was verified by the certificate and seal of the College of Notaries in the city of Mexico; which was also verified by the certificate and seal of the Governor of the Federal District of Mexico; and this certificate is likewise verified by the certificate of the proper secretary of the department of Foreign Relations of the National Government of Mexico, under the seal of said department, which seems to be the seal used for establishing the truth and verity of public documents and records, to be proved or recognized as such in the tribunals of foreign countries, and of which the public tribunals and functionaries of other countries take cognizance and regard as importing absolute verity. (1 Green Ev., sec. 4; Church v.

Hubbart, 2 Cranch, 170.) 4. In view of the testimony upon which the case was submitted to the jury, it was unnecessary for the court to- have given any instruction whatever upon the subject of limitation, or in respect to the necessity of proof by the plaintiff showing that the defendants were in possession of the land for which they were sued; but issues to which the charge here referred to were presented by the pleadings, and certainly there was testimony before the jury pertinent to them.

Had there been any conflict in the testimony, it would clearly have been the duty of the court to have instructed the jury upon them; but appellees having failed to adduce any evidence tending to maintain their defense, thus presented in their pleadings, the court might have appropriately pretermitted any charge upon the subject. Still, as the instructions themselves are not incorrect or inapplicable to the facts or issues before the jury, appellant evidently has no just ground to complain of them.

There is nothing exhibited in the record to justify the belief that he suffered any injustice by reason of this portion of the charge, or that the jury were blinded by it or misled into an erroneous or improper verdict. The only remaining question which we need consider, arises upon the instruction given by the court in regard to the effect of the laches of the plaintiff, and those under whom he claims, in assorting title to the land for the recovery of which the suit is brought.

It is apparent, from what has been previously said, that this part of the charge, like that just referred to, might have been omitted as unnecessary to the proper determination of the case; but it cannot be said that it presents to the jury either a clear or correct exposition of the law upon the subject of which it treats.

It is, on the contrary, confused, and in some respects contradictory; and, obviously, was calculated to lead the jury to the conclusion, that although the letter of attorney under which Blanco sold the land may not have been genuine or valid, yet the mere omission of Babago and his wife, and her second husband, to pay taxes upon the land, their failure to take the necessary steps to ascertain the facts of appellee’s claim to it, and their delay in asserting their title, were sufficient to defeat appellant’s recovery of it.

Unquestionably,'these circumstances were appropriate matters for the consideration of the jury, in determining whether the letter of attorney under which Blanco claimed authority to sell the land is genuine and valid,—if, indeed, they should not be held as conclusive of it. But we know of no authority to warrant the court in holding that the mere failure to pay taxes, or the laches or delay of the owner in bringing suit for the recovery of land to which he has a legal title, will defeat his action, where there has not been actual adverse possession for a sufficient length of time to support plea of limitation.

Appellee insists that the error in .the charge of which appellant complains is corrected by the court in the latter part of its instruction; but while this is true in part, it is not entirely so; but if it had been, we cannot say to which part of the charge the jury may have given controlling weight.

It is also claimed, that as the facts demonstrate beyond all reasonable doubt the genuineness of the letter of attorney to Blanco, and as the deed from Blanco to Lagurenue was admitted without objection, the plaintiff evidently had no interest in the land, and the defendants were entitled to a verdict irrespective of the plea of laches, and consequently the error in this branch of the charge is immaterial.

I must admit that I incline to the opinion that the want of title in appellant is so manifest, from the entire record, as to authorize an affirmance of the judgment, notwithstanding the error in the instruction, upon the ground that where it is plainly manifest that the correct result has been attained by the judgment, it should not be reversed for mere immaterial error, which it cannot be reasonably supposed will or should change the result of the case in another trial.

But the majority of the court are of the opinion, that as we cannot say the verdict may not have been found solely upon the defense of laches, to disregard the error in the charge and affirm the judgment might result in this court affirming a judgment of the court below not only without a verdict to support its judgment, but, on the ground upon which we would place our judgment, absolutely against the verdict of the jury. For the error of the court in the charge as to laches, as in itself an absolute .defense to the action, the judgment is reversed and the cause remanded. Reversed and remanded.