William Sheppard v. Thomas Harrison, 54 Tex. 91

Moore, Chief Justice. This is an action of trespass to try title brought by appellant, Wm. Sheppard, against appellee, Thomas Harrison, for six hundred and forty acres of land, which he claims by virtue of the location of a valid land certificate and survey thereof on the 26th day of March, 1878.

On the trial of the case, appellee Harrison gave in evidence in support of his claim of title, a certified translated copy of a grant or instrument made by Luke Lessassier, alcalde' of the municipality of San Felipe ■ de Austin, on the 18th day of October, 1833, in conformity with a concession in sale by the governor of Coahuila and Texas to Marcelino Martinez, dated 9th day of February, 1831.

As plaintiff admitted that whatever title, if any, was divested out of the government by this instrument had been acquired by Harrison, and that the land sued for was embraced in the survey made by said concession to Martinez, if the act of Lessassier should be held to be a full, effectual and final grant of the land embraced therein to Martinez or to Iris curator, William Barrett Travis — or if not, if the evidence in the record, in connection therewith, is sufficient to warrant the presumption of a grant of the land to Martinez or Travis, the judgment of the court in favor of Harrison was correct.

We have not had the benefit of a brief or argument on behalf of appellant in our consideration of this case, and cannot say with certainty what were the precise objections which were made to appellee’s title on the trial in the district court, but we infer from appellee’s argument and the matters in the record that the alleged grant by Lessassier was claimed to be void for want of a grantee, there being a blank in the final act of Lessassier where the name of the grantee should be, or at least where the name of the grantee usually appears in instruments of this character.

Or that the blanks found in the instrument indicate that it was incomplete. And it not having been shown that a testimonio had been issued, therefore it must be concluded that said instrument had remained in the custody of Lessassier as an incomplete and unfinished grant.

To these objections it will suffice to say, that all the instruments which are referred to and embraced by the commissioners in the expediente form parts of the title, and may be referred to for the correction of errors and mistakes in'other parts of it; that its legal effect must be determined by a whole, and not from a single part.' Looking at this grant as an entirety, there can be no question for whom it was intended, and to whom, and in what right it should have been and was in fact made.

The application to the alcalde for a grant was made by Travis as curator of Martinez; the consent for its survey for him as such curator was given by the empresarios of the colony in which the land is situate; the order for survey was of a similar character, and the survey shows on its face that it was made for him as curator in pursuance of this order. The final act of the alcalde, although the name of the grantee was omitted, by its recitals and references to the preceding instruments, shows to whom and in what right it was made. Clay v. Holbert, 14 Tex., 189; Ruis v. Chambers, 15 Tex., 586; McGehee v.

Dwyer, 22 Tex., 435; 15 Md. (63 Gill), 236; Shep. Touch., 76-6; Helm v. Handley, 1 Littell (Ky.), 219. Contemporaneous with its date, it was recognized and treated by the judicial officers and tribunals of the country, as well as parties interested, as a complete and final grant of the land to Travis as curator of Martinez, and it is now much too late, after its long and repeated recognition by all the officers and departments of the government from which it emanated, as well as that which succeeded, for it to be set aside at the instance of a stranger for the mere clerical omission of the name of the grantee.

Especially must this be so, when, as has been said, other parts of the title plainly show to whom the grant was made. The execution or final completion of the grant is evidenced by the signature of the alcalde and his assisting witnesses. That a certified copy of the protocol on deposit in the general land office is evidence sufficient to establish the title of the grantee and those claiming under him, without accounting for or showing that a testimonio had in fact issued, is much too fully shown in repeated decisions in this court to warrant a reference to authorities.

This has been held even where the execution of the instrument was not full and complete, but was done in the presence of only one assisting witness. Clay v. Holbert, 14 Tex., 189; Ruis v. Chambers, 15 Tex., 586. But if it should be held that the final title was imperfect and never fully completed for want of the insertion of the name of the grantee, we are of the opinion that the facts exhibited in the record are abundantly sufficient in warranting the presumption of a grant to Travis as curator of Martinez.

It will be noted that the presumption of a grant in this cáse does not rest alone on the bare fact of the long continued possession by the appellee and his vendees. It is indisputably shown that the party in whose favor the presumption is asked to be indulged, was justly entitled to a grant; that nothing remained for its legal consummation but the bare fact of the drawing up and executing a proper instrument to evidence a final title; no legal impediment was or could be interposed.

That contemporaneous with the supposed grant, it was, as we have said, recognized as such by the tribunals of the country and the parties in interest as having been consummated. From that day to the date of appellant’s file upon the land, it continued to be so recognized by all the officials of the government in any way connected with the administration of the laws relating to or affecting the public domain, and its disposal.

These facts, connected with the long possession and payment of taxes, are amply sufficient to justify the presumption of a grant, even if it is admitted that supposed final title under which it had been held for so long a time was incomplete by reason of the omission of the name of the grantee, to whom it should have been issued. Grimes v. Bastrop, 26 Tex., 314. Affirmed. [Opinion delivered December 8, 1880.]