E. G. Hanrick v. A. M. Jackson, 55 Tex. 17

Moore, Chief Justice. This action, which is in the usual form of trespass to try title, was brought in the court below April 17, 1876, by E. G. Hanrick, appellant, claiming title under an eleven league grant purporting to have been extended by Luke Lessassier, alcalde of the municipality of San Felipe de Austin, to Rafael de Aguirre, October 22, 1833, for the recovery of the lands involved in this suit, which are claimed adversely to him by the appellee A. M. Jackson, by virtue of certificate locations and surveys made in 1874.

On the trial a jury was waived, and the whole case, law and fact, was submitted to the court, by whom judgment was given for the defendant. And the plaintiff gave notice of, and now prosecutes his appeal. As appellee made no objection to any of the links in appellant’s chain of title, if the land in fact was granted to Aguirre, and as his (appellee’

s) title had its inception more than forty years after the extension of said grant by the alcalde, the merits of this controversy must depend on the fact whether this grant was a nullity, and the land covered by it was a part of the public domain, and subject'.to location, at the date of appellee’s attempted appropriation of it. The determination of this question requires an examination of the objections of appellee to the validity of the grant. These are: • 1st.

That it appears on the face of said grant that the officer by whom the grant purports to have been extended, acted without authority of law and against law in extending the title. 2d. The erasures, substitutions, additions and interlineations apparent on the alleged protocol in the general land office, cast suspicion of fraud and fabrication upon it, and, unexplained, should have excluded the land office copy of it, as evidence of a grant. 3d. The title relied on by appellant was void for want of a grantee, or, if it shows a grant to any one, it is a grant to Perfecto Valdez. 4th.

If said grant was not void upon its face, the evidence before the court justified the conclusion that the officer by whom said title was extended acted without authority, and shows that the grant was issued in fraud, and therefore void. • We shall not undertake an elaborate discussion of the questions suggested by these objections, or to follow counsel for the appellee through the wide range of discussion in the very able and elaborate briefs and argument which they have presented to us in support of the propositions maintained by them, but shall, in the main, merely state our own conclusions. 1st.

The title by Lessassier purports to have been extended in virtue of a concession in sale by the governor to Aguirre for eleven leagues of land, of date 14th day of June, 1830. The testimonio of this concession does not appear in or form part of the expedientes by the alcalde, as was customary and usual in the extending of such titles by this officer. But we know of no authority for saying that the title is void because he has not incorporated into it the evidence of the concession or sale. If there was, in fact, no concession, there could have been no legal grant by the alcalde.

But whether there was a concession, and whether there was proper evidence of it presented to him by the interested party, was a matter for his official inquiry and determination. . Whether he set forth in the title the evidence upon which he acted, or merely recited as a fact that a concession had been granted, and authority given him by the governor to extend the title, the presumption which is always indulged in favor of the validity of the acts of officers of a former government, warrants the conclusion that the officer acted in conformity with law and not in violation of it. Holliman v.

Peebles, 1 Tex., 709; Hancock v. McKinney, 7 Tex., 384; Hatch v. Dunn, 11 Tex., 717, 718; Ruis v, Chambers, 15 Tex., 590. But if it was necessary that the expedientes should exhibit or contain evidence of the grant of the concession, we are not prepared to hold that the protocol of this grant was in this particular defective.

Sale in concession was made by the governor to Thomas de La Vega, Jose Maria de Aguirre and Bafael de Aguirre, for eleven leagues each, and unless triplicate testimonios of this concession (as to which there is no evidence) had' been issued, there could not have been a testimonio incorporated in the extension of title to but one of these parties. But surely it could not be supposed that a title could only be extended to one of them.

And it may very readily be inferred,, without looking beyond this title, when' the testimonio of this concession was presented; for the first title asked for upon it, the alcalde, as may be done in proper cases, gave a copy of it to the interested parties, to furnish authentic evidence of the rights conferred by it. And the incorporation of such authentic copy in the extension of title to the party to whom it was given, would, we think, be just as effectual as the original testimonio.

At least where such course was pursued by the officer, who must be presumed to be acquainted with the proper discharge of his duties and the law under which he acted, no other conclusion can be legitimately entertained after the great lapse of time during which such act has stood unquestioned. Hancock v. McKinney, 7 Tex., 443; Hancock v. Horton, 11 Tex., 220. 2d. If the erasures and interlineations exhibited by the protocol of this title in the general land office were unexplained, this might be good ground for the exclusion of a copy of it in evidence.

But the suspicion cast upon the instruments by these erasures, interlineations, etc., are removed by the title itself ; for they all appear to be noted at the foot of each instrument, in which they occur above the signature of the officer and subscribing witnesses. Thompson v. Thompson, 12 Tex., 331. 3d. The fact that the name Perfecto Valdez appears in one instance in the latter part of the title where that of Rafael de Aguirre should have been written, does not warrant our holding' that this was a grant to Perfecto Valdez, or that it is not in fact a grant to Aguirre.

That it was not a grant to Valdez is manifest from every part of the instrument. The application is for the extension of title to Aguirre on a concession to him. The order of survey is for Aguirre. The land was surveyed for him; and the title itself purports to be made for the land thus surveyed. All these instruments form a part of the completed title, and are to be looked to and considered as a whole in passing upon and determining its legal effect. Doing so, there is not the slightest doubt but that Valdez’s name is found in this instrument by mistake, where that of de Aguirre should have been written.

And notwithstanding this mistake, it must be held that the title to the land was, in fact, extended to Aguirre. The fact that the commissioner, or his clerk, who prepared the paper for signature by the commissioner, may have by erasures and interlineations made applicable to this grant a paper commenced and intended for a grant to Valdez, does not detract from its validity as a grant to Aguirre, if in truth intended for and executed to him. Clay v. Holbert, 16 Tex., 204; Hancock v. McKinney, 9 Tex., 445; Helm v. Handly, Littell (Ky.), 219; Budd v. Brooks, 3 Grill (Ind.), 239; Shep. Touch., 74.

But it is said if this grant is not void upon its face, it is shown by extraneous testimony to have been extended by the officer from whom it emanates, without authority, in violation of law, and in fraud. That a grant may be shown to be void by proof that the officer had no authority to make such grant, or that the law did not warrant it, is beyond question.

But if such grant is authorized by law, and may be legally issued by the officer from whom it emanates, we are not prepared to admit that it may be attacked for fraud not appearing on the face of the grant, except by the government or some one having a pre-existing equity, unless the right to do so is expressly conferred on the party attacking it by law. .

The ground upon which it is claimed that this grant is void for want of authority of the officer by whom it was extended, is in part the same as that heretofore adverted to, viz.: there was no sufficient evidence to prove the sale in concession of the land by the governor. We think, however, that the testimony before the court on this point establishes beyond controversy the existence and validity of such a concession as recited in the extension of title.

It is, however, urged with much more force, that while there was a concession of eleven sitios of land to the grantee, this concession had been fully satisfied by the extension of the title upon it for other lands prior to the date of the present grant. And therefore the extension of this title, purporting to be in satisfaction of the same concession, must be regarded as extended without authority, and as a fraudulent attempt to appropriate doubly the quantity of land to which the grantee was legally entitled.

The evidence before the court shows that Samuel May Williams, the attorney in fact of all the parties named in the concession in which this title had its inception, made two applications in behalf of Eafael de Aguirre for the grant of eleven leagues of land, each based alone on this concession; that all the prehminary steps were taken on each application, and in one a grant was extended to Aguirre for land on the Brazos river on the 4th day of October, 1833, while that for the land now in controversy was not consummated into a final grant until the 22d day of the same month and year.

Appellee insists that by the extension of title for the land upon the Brazos, the authority of the officer to make a grant to the interested party was exhausted, and all subsequent acts by him were null and void. But in our opinion the facts do not warrant this conclusion. The alcalde, by the order, was clothed with authority to extend title to the interested party, and must determine how and when he had done so.

Certainly it is not a necessary conclusion from the facts in this case, that, the first of these grants was recognized or accepted by the party interested, as a grant of the land sold him by the governor. It is not shown that a testimonio ever issued on this first title, that possession was ever taken or claimed of it by Aguirre, or anyone claiming under him, or that any government dues were ever paid upon it. It is entirely consistent with the facts, and borne out by subsequent occurrences, that the application for these two grants originated in a mistake or oversight of the attorney, Williams.

That after the extension of the first of these titles, and before a testimonio of it had been issued, this mistake may have been made known to the officer and he then extended the second one. The testimony of the surveyor, Johnson, shows that the land for which the last of these titles issued was selected by the parties to whom in fact the concession seemed to have then belonged, though the land was not conveyed to them till some years afterwards.

And the evidence shows that it has ever since been claimed to be the land to which Aguirre was entitled by his concession, and that it is the land which was granted to him, while that on the Brazos never has been thus claimed by him or anyone claiming under him.

A short time after the organization of the general land office under the republic, Williams, the agent of Aguirre, at whose instance these titles were issued, appeared before the commissioner and explained to his satisfaction that the first was issued through mistake, and the second one was the title in fact granted to and always claimed by and for Aguirre, as is shown by the records of the general land office.

Now, can we say that because the commissioner had barely signed this paper purporting to bé a grant to Aguirre, but which did not convey the land which he had selected and desired, though the privilege of selection was given him, was mistaken in supposing he had authority to convey to him the land which he desired, and in fact had selected, and when the exercise of such power by the alcalde has never been questioned by individual act or official authority during the existence of the government under which he acted, and, notwithstanding his exercise of this authority, has now been tacitly or expressly recognized by legislative and official action of the republic and state of Texas for more than a generation % Certainly, in our opinion, it cannot now be questioned by a party having no pre-existing equitable claim or interest.

As was said by Chief Justice Wheeler, in the case of Johnson v. Smith, 21 Tex., 122, in discussing a kindred question, there must be a time beyond which men’s mouths are stopped to raise such objections against the acts of the officers of a former government, and certainly beyond which a conclusion of fraud may be deduced as an inference from them.

But while we admit that the want of power of an officer to make a grant may be shown, as has been often held, to invalidate such grant, we do not think appellee brings this case within this rule by proving, if such is the proper conclusion from the evidence, that Lessassier granted eleven sitios of land prior to the date of the title now in question.

The want of authority of the officer which renders the title void is to be shown by the law, or that he attempts to exercise his authority beyond the territory over which he has jurisdiction, or something of like character, and not from proof of mere error of the officer in extending a title to one not in fact legally entitled, but whom he supposed to be. The alcalde was an officer authorized to grant titles of this character. True, his authority did not justify him in extending to Aguirre title for- more than eleven leagues of land.

Nor should the board of land commissioners give more than one headright certificate to the same applicant, or the commissioner of the general land office issue a second patent on the same certificate; but to do so would be an improper exercise of authority' rather than

an act without authority. So we think the action of the alcalde, if unwarranted, was an erroneous exercise of authority instead of

an act without authority. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered December 14, 1880.]