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SUPREME COURT RECORDS PAGE
14
File contributed by Lisa Lach and
proofed/formated by Dena Stripling *1 Wherever it is proper to join several
defendants in the same suit, the suit may be instituted in any county where one of the defendants
resides. Where a divisible obligation to do a thing was
given to two, and one of the obligees, without authority from the other, but professing
to have such authority, assigned it to another: Held, That the assignee could join
the obligees and obligor as defendants in the same suit, and recover one-half of the
obligation from the obligor and damages for the other half from the assignor. Where a person undertakes to assign an
instrument which he has no right to assign, he is not entitled to demand due diligence of the
assignee to collect the money or enforce the obligation. No demand and notice or other evidence of
diligence is necessary when from the facts of the case it is apparant that the party to be
charged had no right to expect it and could not have been injured by the want of it. A contract for the transfer of land certificates
need not be under seal. The rule respecting the measure of damages for
breach of contract to transfer and deliver land certificates is that which applies to the
breach of contracts for the sale of chattels, not of lands. (Note 58.) Where contracts for the sale of chattels are
broken by the failure of the vendor to deliver the property according to the terms of the
contract, if the price has not been paid in advance, the measure of damages is the
difference between the price contracted to be paid and the value of the article at the time
when it should have been delivered; but if the price has been paid in advance, the
purchaser is entitled to the advantage of any rise in the market value of the article
which may have taken place up to the time of the trial. (Note 59.) Where the suit was for land certificates or
their value, and the jury found for the plaintiff "two thousand and eighty acres of
land, at eighteen and three-quarter cents per acre," the court gave judgment in favor
of the plaintiff for three hundred and ninety dollars: Held, There was no error. Error from Bastrop. The defendant in error
brought suit against the plaintiff in error jointly with Edward Burleson and Thomas F.
McKinney, in the District Court for Bastrop county, on the 20th day of July, 1847. The
petition alleged, in substance, that the plaintiff was the owner of a certain contract in
writing, made by Burleson with McKinney and Randon, for the transfer, by the
former to the latter, of certain land certificates described in the petition, and
calling for the quantity of four thousand one hundred and sixty acres of land;
that for a valuable consideration the defendant Randon contracted to transfer, and
did assign to the plaintiff, the entire interest in said contract, the said
Randon representing that the entire interest belonged to him, and that
McKinney had transferred to him all the right and interest which he ever had in
the contract; that the plaintiff had presented the contract to Burleson, the
maker, and demanded the certificates referred to, but that he had refused to deliver
or transfer the certificates, alleging that there still remained in said
McKinney a right to the undivided half of them, and that he had been notified by
McKinney of his interest. The plaintiff alleged that he had sustained damages, etc., and
prayed that the entire interest of all the defendants be decreed to him; or if,
by reason of the claim and rights of the defendant McKinney, that cannot lawfully
be done, that the interest of the defendant Randon be adjudged to him, and that he
have judgment against said Randon for the value of so much in amount of the
certificates assumed to be conveyed by him as he, Randon, had no authority or right to
convey, which he alleged to be of the value of twenty-five cents per acre. The
petition alleged that the defendant Burleson resided in the county of Bastrop,
McKinney in the county of Galveston, and Randon in the county of Fort Bend, and
concluded with a prayer for process and for general relief. The contract described
in the petition and made a part of it is set out in the record, and purports to
be made by Burleson in favor of McKinney and Randon, and to have been assigned
by Randon to the plaintiff Barton, as follows: "I have this day transferred
the above obligation on Gen. E. Burleson, for four thousand one hundred and sixty acres of
land certicates, to Wayne Barton, for the valuable consideration of four hundred
dollars, this 18th February, 1847." *2 D. RANDON." At the fall Term, 1847, the defendants McKinney
and Burleson answered, and the plaintiff had judgment against the latter for
two thousand and eighty acres of land certificates, being half the amount claimed
in the petition; and the defendant Randon having been served with process and
failing to appear, judgment by default was taken against him, and a writ of inquiry
awarded; upon which, after hearing the evidence, the jury returned a verdict for
the plaintiff for two thousand and eighty acres of land, at eighteen and three-
fourths cents per acre, and the court thereupon gave judgment for $390; to reverse
which the defendant Randon prosecuted this writ of error. Neither demand nor notice nor other diligence is
necessary when the party to be charged had no right to expect it, and could not
have been injured by the omission of it. A. contracted to transfer bond certificates to
B. and C. B., without authority, but representing that he had it from C., assigned
the contract to D. D. brought a suit to have the interest of A., B., and C. decreed
to him, or for B.'s interest and damages from him for C.'s, which was allowed. Where one undertakes to assign an instrument,
without right, he may not demand due diligence of the assignee to collect the money
or enforce the obligation. The measure of damages for breach of contract to
transfer and deliver land certificates, is that applying to the breach of contracts for
the sale of chattels, not of lands. A vendor who fails to deliver the goods after
having received the price is liable to the vendee for their highest market value at the
place of delivery at any time between the day stipulated for delivery and the trial. A contract for the assignment of land
certificates, though not under seal, is good. An action against joint defendants may be
instituted in any county where one of the defendants resides. Munger, for plaintiff in error. The obligation
of Randon was an independent one. There was no such privity as justified the
joinder of him in a suit against Burleson. *3 II. The contract was for the conveyance of
realty, and should have been sealed. III. The plaintiff did not use due diligence to
enforce the obligation against the maker. The instrument was assigned on the 18th of
February, and suit was not commenced until the 20th of July thereafter. He was not,
therefore, liable as surety. It will hardly be contended that he can be held liable in warranty
in an action like this. IV. Neither in law nor equity can the plaintiff
recover "the present value of the certificates." He was at most only entitled
to $200 and interest from the time he paid the money. V. The court had no jurisdiction of the suit, if
for land; no jurisdiction of the person, if the suit was for damages. Gillespie, for defendant in error. The joinder
of the defendants is authorized upon general principles of law, and seems to be enjoined by the
act of 1846, p. 375, secs. 48, 49. WHEELER, J. Of the several errors assigned there are but two
which are deemed of a character to require particular notice, and these are-- 1st. That the plaintiff did not show the use of
diligence sufficient to charge the indorser, Randon. 2d. That the verdict is illegal in having found
the present value of the land certificates. That the plaintiff could maintain this action
against the defendants jointly, and in the county of the residence of either, cannot
admit of a doubt. (Acts of 1846, p. 375, sec. 46; Id., pp. 363, 364, sec. 1.) But it is insisted that the plaintiff did not
use due diligence to enforce his contract against the maker. To this objection it is a
sufficient answer that the present is not a case to which the rules which have been
invoked respecting diligence are applicable. The defendant Randon undertook by
his assignment to transfer an interest which he did not possess and which he had no
right to convey. His assignment, therefore, was a fraud upon the plaintiff, and
he had no right to notice the refusal of the maker to perform the contract. He had no
right to expect that Burleson would convey the certificates upon his individual
assignment. No demand and notice or other diligence, therefore, was necessary to charge
him. The reason for giving notice and the necessity of it ceases when from the facts
of the case it is apparent that the party to be charged had no right to expect it
and cannot have been injured by the want of it. (2 Stark. Ev., 160, 161, 165.) To determine the remaining question, it becomes
necessary to ascertain what was the true measure of damages for the breach of
contract complained of. And it is to be observed that this was not a contract to convey
land or any estate or interest in land, but merely for the transfer of unlocated land
certificates. It is true that the jury in their verdict employed the word
"land," but from the whole verdict taken together and in reference to the issue it is very clear
that they meant land certificates only. The rule, therefore, respecting the measure of
damages applicable to this case is that which applies to the breach of contracts
for the sale of chattels, not of lands." *4 When contracts for the sale of chattels are
broken by the failure of the vendor to deliver the property according to the terms of
the contract, it is well settled that a s a general rule the measure of damages is the
difference between the price contracted to be paid and the value of the article at the time
when it should be delivered, upon the ground that this is the plaintiff's
real loss, and that with this sum he can go into the market and supply himself with
the same article from another vendor. (Sedgw. Meas. of Dam., 260.) But where the
purchaser has paid the price in advance, or has otherwise, as in the loan of stocks, been
deprived of the use of his property, there are different and conflicting decisions
upon the question whether the purchaser is limited to the value of the article at the
time for delivery, or shall have the advantage of any rise in the market value of the
article which may have taken place up to the time of trial. In England and New York
the latter rule is laid down, on the ground that the purchaser, having been deprived
of the use of his property, is entitled to the best price he could have obtained for the
article up to the time of the settlement of the question. (Ib., 2 East. R.,
211; 2 Taunt. R., 257; 2 B. & Cres. R., 624; 2 Caine's Cas. E., 200; 3 Cow. R., 82.) In the case of Clark v. Pinney, 7 Cow. R., 681,
the distinction between contracts wholly executory and those where payment has
been made was taken and firmly maintained by the Supreme Court of New York. The
action was upon a contract for value received to deliver on a future day a
certain quantity of salt, at a stipulated price per bushel. The court held that
as the goods had been paid for, the measure of damages was the difference
between the contract price and the highest price at any time between the period
appointed for delivery and the day of trial. After recurring to the authorities,
the court say: "We hold it, therefore, to be settled by authority, and
rightfully settled upon principle, that where a contract is made for the sale and
delivery of goods or chattels, and the price or consideration is paid in
advance, and an action is brought upon the contract for the non-delivery, the plaintiff is
not confined in measuring his damages to the value of the article on the day
when they should have been delivered." The same rule was laid down in the earlier case
of West v. Wentworth, (3 Cow. R., 82.) Chancellor Kent, in his
Commentaries, (2 Kent, 480, n. b, 5th ed.,) says: "The general rule is well settled
that in a suit by a vendee for a breach of contract on the part of the vendor for not
delivering an article sold the measure of damages is the price of the article
at the time of the "breach." This undoubtedly is the rule where the price has
not been paid in advance by the vendee; but, as has been remarked by Mr.
Sedgwick, the learned commentator has omitted to advert to the distinction
resulting from the payment of the price in advance, which runs through the English
and New York cases, and which seems to us a sound distinction. In several of
the States, however, this distinction has not been recognized. (3 Mass.
R., 364; 5 W. & S. R., 106; 2 Con. R., 485.) It seems to have met with the
approval of Chief Justice Marshall. In an action brought upon a contract
for the delivery of cotton at ten cents per pound, which when it was to
have been delivered was worth twelve cents, and before the suit was brought
had risen to thirty cents per pound, the plaintiffs insisted that they were
entitled to the highest market price up to the rendition of the judgment. But
the unanimous opinion of the court was "that the price of the article at
the time it was to be delivered was the measure of damages." There had been
no money advanced and Marshall, Ch. J., said: "For myself only I can say
that I should not think the rule would apply to a case where advances of money
had been made by the purchaser under the contract. But I am not aware what
would be the opinion of the court in such a case." (3 Wheat. R., 200.)" *5 This distinction is maintained by the
authority of at least the courts of England and New York, and we think rightly upon
principle; and its application seems peculiarly appropriate in the present
case. Here the money was paid in advance. The contract was for the transfer of
land certificates, and resembles in some respects contracts for the transfer of
stock, in respect to which it seems generally to have been held that the
damages should be calculated at the price on the day of trial. In a case of this
character in the King's Bench, (2 East R., 211,) Grose, J., said: "The
true measure of damages in all these cases is that which will completely indemnify
the plaintiff for the breach of the engagement." And Lawrence, J., said:
"Suppose a bill were filed in equity for a specific performance of an agreement to
replace stock on a given day, which had not been done at the time: would not a
court of equity compel the party to replace it at the then price of stock,
if the market had risen in the meantime?" The court in the present case decreed a specific
performance against the defendant Burleson, and the same would
unquestionably have been decreed against Randon, if the interest had been in him
and he had been legally capacitated to make the transfer. The plaintiff
would then have obtained the certificates specifically. Shall he be
placed in a worse condition because Randon had not the title or right to
make the transfer; or shall this defendant, for that reason, be placed in a
better condition or be permitted to discharge his liability with a less
sum than his codefendant Burleson? Or rather shall he make such
compensation as will completely indemnify the plaintiff for the breach of the
engagement, by enabling him to go into the market and purchase an amount of
certificates equal to that which the defendant assumed to transfer to him?
This would be most consonant with justice, and is, it is conceived,
the correct rule upon principle and authority. It accords to all parties
the same measure of justice. We have considered the question upon the
supposition that the jury estimated the value of the certificates at the time of the
trial; and we concluded that it was not improper to do so. But there is
no statement of facts; and as the prayer of the petition is for the
"present value" of the certificates, the estimate may have been of their value at the
commencement of the suit. If so, it would not vary the conclusion at which
we have arrived. There would, perhaps, in that case be less room for
doubt as to the accuracy of that conclusion. (Clark v. Pinney, 7 Cow. R.,
681.) Judgment affirmed. LIPSCOMB, J. I rest my concurrence on the ground that payment
had been made under the contract. If no payment had been made, I should in that
event believe that a different rule of damages would govern the case. NOTE 58.--James v. Drake, 39 T., 143; Johnson v.
Newnam, 43 T., 628. *6 NOTR 59.--Calut v. McFadden, 13 T., 324;
Brasher v. Davidson, 31 T., 190; Cartwright v. McCook, 33 T., 612 Tex. 1849. RANDON v. BARTON. 4 Tex. 289, 1849 WL 4012 (Tex.) END OF DOCUMENT *1 Copies of notarial acts were under the
Mexican laws regarded in contemplation of law as originals; they were the only evidence
of title which the party interested was entitled to retain in his possession, and
they are properly admissible in evidence for all purposes which, by the
introduction of the originals themselves, could be effected. (Note 48.) The testimonio delivered by the commissioner for
extending titles to the interested party to serve him as a title is a second
original; is not secondary evidence. Quere? Whether a certified copy of an original
title from the General Land Office can be introduced without first accounting for
the absence of the testimonio or second original. Where a State officer does an act which would be
a violation of his duty, unless certain terms or conditions had been first
performed by an individual, such performance will be deemed prima facie between
the individual and the State to have taken place. (Note 49.) The omission of the commissioner for extending
titles to lands to sign the protocol or recorded title did not affect the
validity of the title where a testimonio properly executed by the commissioner
was issued to the interested party. But, quere? Whether there is not a
suspicion in such a case that the testimonio is a forgery, or was fraudulently
obtained, rendering explanation necessary. This case distinguished from the case of Jones
v. Menard. (1 Tex. R., 771.) Appeal from Anderson. The appellant brought his
suit to recover from the defendant one-third of a league of land in the possession
of the defendant, the appellee. The appellant derived his title by virtue of a
patent issued to him on the 26th of June, A. D. 1850, as assignee of Jesse
Billingsley, on a survey made by virtue of a certificate issued to the said Billingsley
by the board of land commissioners for the county of Bastrop. The defendant derived title from a deed or grant
commonly called a testimonio, issued to him prior to the closing of the land
office by the consultation as a colonist in Burnett's colony, by George A.
Nixon, commissioner for that colony. The survey on which the appellant's patent was
issued was made on the 17th of May, A. D. 1847. The testimonio of the appellee
bore date 19th September, 1835. There was no controversy as to the title of the
plaintiff, as shown by his patent, if the land did not already, before the location
and survey on which it was issued, belong to the appellee by virtue of the title
set up by him in his defense. This title appeared, from its inspection and from the
statement of facts, to be in the usual form of titles issued to colonists. It
appeared from the statement of facts that it was admitted that A. Hotchkiss, a
subscribing witness to the title papers described in the defendant's answer, would prove
that they were executed by George Antonio Nixon, commissioner for extending titles
to colonists in David G. Burnett's colony, and it was admitted he would prove the
signature of Gustavus Hart, the other subscribing witness; and these facts were to be
taken as if proven by the witness. It appeared from the statement of facts that the
testimonio of the appellee was registered and recorded in the recorder's office
of the county where the land is situated on the 24th of May, A. D. 1838. The
statement of facts showed that it appears in the abstract of lands granted in the
General Land Office. *2 It appeared, by a certified copy of what
purported to be the original deed on file in the General Land Office, that it in all
things corresponded and was a counterpart of the appellee's testimonio,
excepting the signature of the name of the commissioner, George Antonio Nixon, and that
was wanting. When a state officer does an act which would be
a violation of duty unless certain terms or conditions had first been performed by
an individual, such performance will be deemed, prima facie, as between the
individual and the state, to have taken place. Whether a certified copy of an original title,
from the General Land Office, can be introduced, without first accounting for the
absence of the testimonio, or second original quere. The testimonio which the commissioner for
extending titles delivered to the interested party to serve him as a title is a
second original, and not secondary evidence. Under the Mexican laws, copies of notarial acts
were regarded as originals, in contemplation of law. They were the only
evidence of title which the interested party was entitled to retain in his possession,
and they are properly admissible in evidence for all purposes which could be
effected by the introduction of the originals themselves. If the commissioner for extending titles to
lands omitted to sign the protocol or recorded title, the validity of the title was
not affected thereby, where a testimonio properly executed to the commissioner
was issued to the interested party; but quaere, whether, in such a case,
there is not a suspicion that the testimonio is a forgery, or was fraudulently
obtained, rendering explanation necessary. Cravens and Perry and J. T. Jennings, for
appellant. R. A. Reeves and J. M. Ardrey, for appellee. LIPSCOMB, J. *3 The legal character and effect of the
instrument called the testimonio, such as is presented in this record by the
appellee in support of his title to the land, has often been presented to the
consideration of this court, and in the case of Smith v. Townsend, decided by the
Supreme Court under the Republic, (Dallam, 569,) underwent a most thorough
investigation, and the court arrived at and expressed the following conclusion:
"From the authorities and laws to which we have referred, as well as from the facts proven
in this case, we conclude that copies of notarial acts were, at the time of the
execution of this instrument, regarded in contemplation of law as originals; that they
were the only evidence of title which the party interested was entitled to retain in
his possession, and that they are properly admissible for all purposes which, by
the introduction of the originals themselves, could be effected." It will be
seen, by reference to the case of Mitchell v. The United States, 9 Peters, 732, that the same
doctrine was held by the Supreme Court of the United States to apply to
instruments and evidences of title executed and issued by any other officer authorized at
the time by law to do such acts. And we have recognized this doctrine as applicable
to the testimonio delivered by the commissioner for extending titles to the
interested party whenever it has been presented to our consideration. We have regarded
it as an original, and to answer all the purposes of an original, to the party to
whom it was given, and we have ever doubted the correctness of supplying its
place by a certified copy from the General Land Office until the absence of the
original testimonio had been satisfactorily accounted for. That the testimonio is a higher grade of
evidence than the certified copy from the land office seems to me clear and demonstrable. If
the certified copy is used, it is to supply the absence of the testimonio; and it is
therefore a substitute for an original paper title, and of course secondary in grade as
evidence to the original, for which it has been substituted. Again, it is better evidence, for another
reason, than the certified copy when applied to titles extended by a land commissioner,
because the commissioner, after making out his protocol or matrix of the title, may, for
good and sufficient reasons, withhold and refuse to extend the title; and it may never
have issued and no title passed. This would not appear from the certificate of a copy of the
protocol. To admit the certified copy without its having been shown that the original
testimonio had been issued and its absence satisfactorily accounted for, would
enable a party so rejected years after to obtain a title by resorting to the General Land
Office and procuring therefrom a certified copy of the protocol; and this he
could do as often as he could find a victim to perpetrate his fraud upon by selling
the same land over and over again. *4 Again, if he had received the original
testimonio after selling the land and delivering up to the purchaser this testimonio,
he could apply to the land office for a certified copy and again sell the same
land to an innocent, unsuspicious purchaser. Such a swindling transaction could in
a great measure be controlled, if the certified copy could never be used as
evidence, until after the absence of the original title had been reasonably accounted
for to the satisfaction of the court. It is true that a vigilant attention to the
registration laws would prevent the perpetration of many of those frauds, but then,
when it is considered how very difficult it is for a vendee to ascertain with
certainty where to look for the record, so many new counties having been formed
and boundaries changed that he would perhaps have to look for the record some
hundred miles from where the land was situated, it is obvious that without a
stringent application of the rule requiring the production of the original the
registration law would but very imperfectly guard against fraud. I believe, then, that the testimonio is, to the
party interested, to be considered as a muniment of his title, occupying the same
grade and as conclusive of his right to the land described in it as a deed of
conveyance in the usual form at common law, where the common law is the rule of action. I
have presented these views not only because I think them to be sound, but that I
believe that the latter part of the extract I have given from the opinion of the
court in Smith v. Townsend has been misconceived, and has been thought to be
repugnant to the opinion here expressed. I believe that the court did not mean or intend
to be understood as holding that the matrix or protocol could be used by the
party claiming under it, without any regard to the original testimonio, whether it
had ever issued or not; that it only meant that the testimonio was clothed with
all the attributes to give it the validity of the original. The testimonio offered in evidence in this case
in the court below by the appellee was legal and competent as such, and was
conclusive in support of his title, unless the appellant successfully impeached its
validity by evidence destructive of such validity. This his counsel contends has been done, by
showing that the protocol in the land office was not executed by the commissioner, it
wanting his name thereunto subscribed. And we are referred to articles eight and ten of
the instructions to the commissioner. (Laws C. and T., 71.) The first of those
articles is in the following words: "He shall form a book in calf, of paper of the third seal,
wherein he shall write the titles of lands which he distributes to the colonists,
specifying their names, boundaries, and other requisites and legal circumstances. And he
shall take from the said book attested copies of each possession upon paper of the
second seal, which he shall deliver to the person interested to serve him for title."
Article ten is as follows: "Said book shall be preserved in the archives of the new colony;
and an abstract shall be taken therefrom, to be transmitted to Government, containing the
number and names of all the colonists, the quantity of land given to each, expressing
those which are for cultivation, irrigable or not irrigable, and those which are given them
for grazing lands." *5 Can the non-observance of these instructions
on the part of the commissioner, in not signing his name in the book to the
protocol, invalidate the title issued or extended by him to the appellee? We think not.
One object embraced in them is the extension of the title to the interested party.
This has been done. All others were matters between the commissioner and the
Government, and for their fulfillment he was responsible to his Government, and for
such failure the grantee was not answerable. When he received from the commissioner his
testimonio we are bound to presume, until the contrary is proven, that he believed
that the commissioner had and would fulfill all that his Government required him to
do, and that he did not participate in his failure to do so, if any such failure
occurred. The principle is believed to be a sound one, that where a State officer
does an act which would be a violation of his duty, unless certain terms or conditions
had been first performed by an individual, such performance shall be deemed,
prima facie, between the individual and the State, to have taken place. And this
would be much stronger against the Government where the individual had done
everything that the law required him to do, and the omission, if any, was on the part of
the officer, in not doing things required of him by the Government in matters in
which the individual could not participate, but it was wholly between the
officer and his Government. The commissioner was directed to make an entry of
the title in a book, not to be delivered to the grantee as a muniment of his
title; he was to have nothing to do with it, but it was to remain in the archives
of the colony. It was to serve for the information of the Government of what had
been done, and was designed not only as a check on that officer, but was intended to
be a means by which the grantee could protect himself if his testimonio should
accidentally be lost or destroyed. The abstract of the title was to be furnished to
the Government by the commissioner, no doubt, for the purpose of better
understanding the number of the colonists and the revenue accruing as dues for the land
granted. In all of this the grantee had nothing to do; he had performed everything
required at his hands, and had received his title, and to visit upon him the omission of
the commissioner to sign his name to the protocol from which the title was made,
as a counterpart thereof, would seem as unjust and unreasonable as to hold that a
patentee was answerable for the omission of the Commissioner of the General Land Office
to have his patent recorded before it was issued. There is no real difference in
requiring the protocol to be entered first and the testimonio to be made a counterpart
thereof, and in requiring the title to be copied before it is issued, which copy is to
remain of record. In principle there can be no difference which is actually first
written; either would be a compliance with the spirit of the eighth article of the
instructions to the commissioner, which only intended that they should be counterparts
of each other. *6 It may well, however, be doubted if there has
been any substantial failure on the part of the commissioner in this case from which
any injury could result to any one, except to the grantee on the contingency of his
testimonio being lost or destroyed. In such an event he might not be able to supply
its loss from the defect in the protocol in not being signed. In every other
respect there seems to me to have been a substantial compliance. The abstract of
titles has been returned, as required by the tenth article of the instructions,
showing the land granted to the appellee, thus affording the Government the information
required. And all of the title papers are there perfect and complete, with the exception
of the commissioner's signature to the grant. Under such circumstances it might
well be insisted that it was a substantial compliance with the law, so far as
one holding under an original testimonio, fairly and in good faith executed by the commissioner,
was concerned. In the case before us, we believe that the
effect of the evidence introduced by the appellant from the General Land Office would at
most be only to throw on the testimonio a suspicion that it was a forgery or
fraudulently obtained, rendering explanation on the part of the grantee or the interested party
necessary to remove that suspicion. Does the record furnish that explanation? We
believe that it does, and we will briefly point out in what it consists. The evidence
shows that it had been duly executed by the commissioner, and that therefore it was not
forged. It is shown that Kimbro brought himself within the provision of the law as one
entitled to the quantity of land asked for by him as a colonist in Burnett's colony;
that he had taken all the steps that he was required to do, and that there could have
been no motive for a fraud, as it interfered with no previous or contemporaneous
claim for land. It shows that the abstract of his title was returned as required
by the law, and is now in the General Land Office. And it further shows that his title
had been recorded more than nine years in the proper office in the county in
which the land was situated before the appellant made his file and survey on which his
patent issued, giving sufficient time to show it, if any fraud had been committed, or
to show whether he had obtained his land elsewhere. These facts, we believe, are
sufficient to remove whatever imputation unfavorable to the appellee that rested on his
title. This is quite unlike the case of Jones v.
Menard, reported in 1 Tex. R. In that case Menard averred that he held the land by grant,
and he neither produced the original testimonio nor showed that it had ever been
extended to him by the commissioner. He relied solely on the protocol to support his
averment; and that protocol was defective, inasmuch as it had not been executed
by the commissioner. It was decided to be not sufficient to support his averment,
and that it was at most an inchoate title; and without the approval of the board of
land commissioners, under the act of Congress referred to in the opinion, could
have no standing in court. *7 In this case the appellee had received his
title, and it therefore does not come within the provisions of the act referred to,
and it was a title that the commissioners could not act upon if it had been laid before
them. See Smith v. State, a case decided by this court at Austin, December Term,
1849, 5 Tex. R., 397. To hold therefore that his title thus untainted
by fraud or any other vice in which he participated, was invalid, would be placing him
in a worse condition than Menard--an absurdity that it would be difficult to sustain
by any sound train of reasoning or well founded on principle. In the court below there was a great deal of
irregularity in the pleading, giving rise to other points presented by the counsel for the
appellant, but, we believe, not sufficient to control our judgment, and they are
therefore passed over without otice. Judgment affirmed. HEMPHILL, CH. J. That my views on some of the questions raised in
this case may not be misunderstood, I propose to present them very briefly. The commissioner of the colony is required by
art. 8th of his instructions (p. 71, Laws of C. and Texas) to form a book in calf, of
paper bearing the impression of the third seal, wherein he shall write the titles of the
lands which he distributes to colonists, specifying their names, boundaries, and other
requisites and legal circumstances; and he shall take from the said book attested copies
(testimonios) of each possession upon paper of the second seal, which he shall deliver
to the person interested to serve him for title. This instruction does not differ in
substance from the regulations by which, for centuries, in Spain notaries had been
directed and governed in the execution of public instruments. They were required also to
have a book in calf, in which anciently they wrote the minutes of every act as required
by the judge or prescribed by the contracting parties. But this custom has long
been disused. By royal decree in 1853 they were required to draw up in their registers
the original act in full, and not by notes or minutes, and a copy was furnished
the party instead of the act itself, which was formerly made out from such notes. (3
Partidas, tit. 19, law 9th; Smith v. Townsend, Dallam, 572.) The commissioner in
issuing title is required to observe nothing more than the customary forms in the
execution of public instruments. He must write the original draft or protocol in his
book, and give a certified copy or testimonio to the interested party to serve him
as evidence of title, just in the same way and to the same extent that a
testimonio or copy of any and all public instruments extended before a notary serves the
parties thereto as the evidence of their rights. In neither the one case nor in
the other, neither in the grant of lands nor in contracts or agreements between
individuals executed before a public officer, are the parties entitled to the
original or protocol of the title or of the instrument of conveyance or agreement. In all
cases these remain with the officer, and certified copies or testimonios are the only
evidence of right which the parties in any case can possibly receive. A testimonio
or copy of a title for land executed by a commissioner furnished as high evidence of
right as does a testimonio or first copy of any act executed before a notary public,
but not more high or more conclusive. They, one and all, alike cause faith or full
proof, but the force and effect of each and every testimonio of any act executed by any
public officer, whether he be a commissioner or notary public, may be impaired
and destroyed upon grounds applicable alike to all testimonios or second originals. I
cannot now discuss the grounds on which a testimonio may be successfully
impeached. I have not access to such books as would render such discussion either safe or
profitable. The law, it is believed, denounces the nullity of instruments, or rather
their incapacity to produce faith for the want of any solemnity, but for the present I
will only refer to a general rule or principle recognized in Spanish jurisprudence
and by Spanish jurists, to the effect that the weight or authority of a public
instrument is derived from the protocol, and it is laid down by Asso and Manuel that
every instrument of writing made without the protocol is null, (1 White's Recop., p.
297.) That this rule accords with reason is manifest from the inspection of a testimonio
or copy, as, for instance, that introduced by the defendant. Every part and
portion of the instrument is but the copy of another paper. There is nothing original
about it except the certificate of the commissioner that he had compared it with the
original remaining in the archives of the colony and that it was faithfully and
legally copied. The probability of the existence of a copy without the original cannot
be conceived, and hence the principle that the authority of the testimonio or the
whole instrument must depend upon the existence in fact of the original or protocol.
Were that not the case, testimonios or copies of land titles, if not required to be
verified by the original, might be issued to an illimitable extent by a corrupt
officer, and the history of this country on many a lamentable page is fraught with the
evidences of the fraud and dishonesty of some of the public agents in ascertaining the
claims and distributing the titles to public lands. All the requisites and
formalities prescribed in the grant of lands cannot, as our history shows, be too strictly
observed and enforced. The want of the signature of the commissioner to the original
is, in my view, a most formidable obstacle to the validity of the testimonio. *8 But I am of the opinion that under all of the
circumstances of this case, some of which were proven and some seem to have been
taken as admitted, the omission of the signature must have arisen from the mistake or
oversight of the officer. There was no doubt, I presume, that Kimbro was a man of
family and was in every respect entitled to the land, but this was not proven, except from
the recitals of the defective title. The original, in its imperfect state, remained
in the archives of the colony, and was thence transferred to the General Land Office,
and seems for some time to have been regarded as perfect. It must have been taken as
perfect at the time of issuing the abstract of land titles in 1838, the abstract
being framed from the original or protocol of titles deposited in the land office. The other circumstances, such as its early
record, &c., stated in the opinion of the court, show that no fraud could have been intended;
and had the original been inaccessible, as, for instance, at Saltillo or
Monclova, such circumstances would have raised the presumption of the existence in
fact of the original. Such was the rule held in several cases at Austin, December
Term, 1851. The principle of the case of Smith v. The State
(5 Tex. R., 397) does not, in my view, support the position that Kimbro could not
have waived his rights under this title and applied to a board of land
commissioners for a certificate. The objection to the title in that case was, not that it was
not perfect in form and solemnity of execution, but that its vagueness of description
prevented the identification of the land. There was no defect, as far as appears in
either protocol or testimonio. There was no testimonio offered in the case. The copy
of the complete title that was offered was certified from the General Land
Office, and of course must have been a copy of a perfect protocol. Where a title was
defective, either for the want of or the imperfect state of the execution of the
original or of the testimonio, the party holding under such title might, in my opinion,
have relinquished his uncertain and equitable rights under such title and have
applied to a board of land commissioners; and a certificate granted on such application
would be a valid foundation for a survey or patent. I concur in many of the views taken by the
majority of the court. The testimonios or first copies of titles issued under the former
Governments have for a long time either been misunderstood or held in a species
of disfavor. By the registry law of 1836 their existence at all is only by
implication recognized. And by a law of 1846 a testimonio, or the copy which the party received
at the time the public instrument was executed, seems to have been utterly
repudiated. (Art. 746, Dig.) This provision requires the original of acts between
individuals executed before a public officer to be deposited in the clerk's office, and
authorizes copies of these to be received in evidence, but they must be certified to by
the clerk or the officer with whom they are deposited. This is to exalt a certified copy
above the original itself, and is repugnant to the first principles of the laws of
evidence. I have used the word testimonio in these brief remarks frequently. It
means, literally, a copy. But this is not at all descriptive of its force and
effect in evidence. It might be called with propriety the second original, and that was
formerly and very generally its denomination. *9 NOTE 48.--De Leon v. White, 9 T., 598; Word
v. McKinney, 25 T., 258; Andrews v. Marshall, 26 T., 212; Hatchett v. Conner, 30 T.,
104; Wood v. Wilder, 42 T., 396. NOTE 49.--Jenkins v. Chambers, 9 T., 167; Jones
v. Garza, 11 T., 186; Hatch v. Dunn, 11 T., 708; Ruis v. Chambers, 15 T., 586; Howard
v. Colquhoun, 28 T., 134. Tex. 1852. TITUS v. KIMBRO. 8 Tex. 210, 1852 WL 3954 (Tex.) END OF DOCUMENT == *1 Where the Sheriff returned a capias executed
by serving it upon the defendant and taking his bond for his appearance, in pursuance
of Article 2889, and the bond was indorsed approved by the Sheriff, and marked
"Filed nunc pro tunc, the 30th December, 1851," signed by the Clerk; Held, That the
bond was sufficiently "returned and certified." (No objection was taken below.) A paper may be marked filed nunc pro tunc, so as
to correspond with the fact of filing. Where a paper was marked "Filed nunc pro
tunc the 30th December, 1851," and the record contained no corresponding order of the Court,
nor bill of exceptions, the Court said that the words "nunc pro tunc" might
be rejected as surplusage. It is proper to order an alias capias to issue
against a defendant in a criminal case, at the same time that judgment nisi is rendered
against him and the sureties on his bond to appear. Error from Bastrop. A. W. Winn was indicted,
Fall Term, 1851, for assault and battery. Process was issued 30th December, 1851, and
returned "Came to hand same day issued, and executed the same, serving the within capias
on said Winn and taking his bond for his appearance at the next Term of the District
Court." Then followed a bond by Winn, as principal, and the plaintiffs in error, as
sureties, for Winn's appearance, as aforesaid. The bond was dated same day the writ
issued; was indorsed "approved the 30th December, 1851, John Hearn, Sheriff B.
C.;" and was also indorsed "Filed nunc pro tunc the 30th December, 1851, Jas. P. Wallace,
Clerk D. C. B. C." The defendant Winn failing to appear, judgment nisi went against
him and the plaintiffs in error, as his sureties; and a capias was ordered against Winn.
At the next Term, scire facias having been served, the judgment was made final.
The errors assigned will be found in the opinion of the Court. Where a capias is served upon the defendant in a
criminal case by the sheriff, and a bond taken, and the sheriff certifies on the
capias that the bond has been taken, and the bond is marked "Filed," and signed
by the clerk, then such bond is sufficiently "returned and certified." Such a bond
may be ordered to be filed nunc pro tunc, but, if it is filed on the day of the execution
thereof, there is no good reason for such an order. In this case the unnecessary words
"nunc pro tunc," added by the clerk, were rejected as surplusage. Attorney General, for defendant in error. HEMPHILL, CH. J. This is a judgment on a bond taken by the
Sheriff by virtue of Article 2889. It is assigned *2 1st. That the bond was not certified and
returned to the District Court as the law directs. 2d. That it was not filed by the Clerk the day
it came to his hands, but was erroneously ordered by the Court to be filed "nunc pro
tunc." 3d. That judgment was improperly rendered
against plaintiffs, who were securities in the bond, after an alias capias had been ordered
to issue against Winn, the principal. There is nothing substantial in any of these
grounds. The statute requires the bond to be returned and certified to the Court, without
stating the mode, or form, in which this shall be done. Here the Sheriff certifies
on the capias, that he has taken the bond; and the bond is marked filed, by the
Clerk. This is sufficient to show that it is the bond of the parties, given in the cause,
among the papers of which it is found. There was no error in ordering the bond to be
filed "nunc pro tunc." No such order appears, however, of record. Nor is there
anything which shows the necessity of such order. The bond was executed the 30th December,
1851, and is marked filed, the same day, with the addition of "nunc pro
tunc." This addition may be rejected as surplusage, as there is no apparent necessity for any such
qualification of the filing. There is nothing in the fact that an alias
capias had been ordered to issue. It was to the benefit of plaintiffs, as the principal
might have been brought in before the entry of final judgment on the bond. Judgment affirmed. Tex. 1853. SLOCUMB AND ANOTHER v. THE STATE. 11 Tex. 15, 1853 WL 4392 (Tex.) END OF DOCUMENT ==== *1 The Common Law system of pleading in criminal
cases continues in force in this State. Where the indictment charged that the defendant
felonjously stole, took and carried away "one bolt of domestic, made of cotton, of
the value of ten dollars, of the property of one David Coalson," etc.; Held, That the
indictment was good, without an averment that the domestic was "goods or chattels,"
the terms used in the statute. In an indictment for larceny, it is sufficient
to state the county, without stating more particularly the place in which the larceny
was committed. Appeal from Bastrop. The indictment charged the
defendant with having stolen one bolt of domestic, made of cotton, of the value
of ten dollars, of the property of one David Coalson, etc. On motion the indictment was
quashed for uncertainty. The grounds of the motion were 1st. That it was not alleged that the bolt of
domestic was goods as required by the statute. 2d. That it did not allege the specific venue
whence said goods were stolen. 3d. That the allegations were too general, to
put the defendant on his defense. The common law is the law in criminal cases, by
the Constitution of the republic of Texas, where its rules have not been changed by
legislative enactments. In criminal cases, the common-law system of
pleading prevails. In an indictment for larceny it is sufficient to
state the county, without stating the place, in which the larceny was committed. An indictment alleging that the defendant
feloniously stole, etc., "one bale of domestic, made of cotton, of the value of ten
dollars, of the property of," etc., is good, without stating that the domestic was
"goods or chattels," in the words of the statute. Attorney General, for the State. HEMPHILL, CH. J. *2 Much has been said in the books, relative to
the requisite certainty in criminal pleading; and many niceties and distinctions
have been indulged in, the effect of which, on the one hand, has been to permit offenders to
escape and crime to go unpunished, and on the other, to artfully conceal from the
defendants the real nature of the charges against them. The rules relative to certainty are admirable;
but, in their practical operation, they are frequently incumbered with such a mass of
superfluity and fiction, as to defeat their own purposes, and to engender obscurity,
instead of producing light and distinctness. The spirit of reform which has pervaded our
civil system of procedure, has not as yet reached our criminal pleading. Its excrescences
still deform our jurisprudence; and I will proceed to consider, whether, under this
ancient system, such as it is, the judgment under revision can be sustained. The certainty, required in indictments, is such
as will apprise the defendant of the offense with which he is charged, and will
enable the Court to see a definite offense on record, that it may render the proper
judgment, in case of conviction, and that will also protect the defendant against a
further prosecution for the same offense. Is the charge, in this indictment, wanting in
any of the elements of this definition? The offense is stated to be the stealing of a
bolt of domestic, the property of another. Is not this plain? Can any one of common understanding
doubt that this is a crime prohibited and punishable by law? Does it require any
special antuteness to ascertain that a bolt of domestic is goods or a chattel, and consequently
the subject of larceny? It is assumed in the motion, that the domestic should be
described to be goods. Would this convey any information to the defendant or the Court, of
which they were not apprised? Neither the one nor the other can doubt, but that a piece of
domestic is goods. There is no possibility of their misapprehending it to be
land and not a chattel. To impute such incapacity to a Court, would be highly
indecorous; and it could not exist in the defendant, without an imbecility which would
render him, legally, incapable of crime. But it may be said, that, from the authorities,
it appears that the property must be stated to be the goods and chattels of the
owner, and without these or equivalent words, the indictment is defective. This rule
will be found in Chitty, Vol. 3, p. 497, and other compilers, founded on Long's
case, reported in Coke, Eliz., p. 490. On examination of this case, it will appear, not
that the article stolen must be declared to be goods or chattels, but that it
must be stated to be of the goods and chattels of another; or, in other words, that it
is his property. The indictment was for stealing a piece of linen of Anthony
Nixon, omitting the words, "of his goods and chattels." The Court held this
defective, saying that it might be that the piece of linen was not the goods and
chattels of Anthony Nixon, at the time of his taking of them, but by him let out or
delivered or pledged to another, and it ought to have been shown whose goods and
chattels they were, etc. The substantial defect in the indictment, then, was the want of
an averment of property in Nixon, and not that the linen was goods or chattels. *3 What is the proof under an averment that the
thing stolen is of the goods or chattels of another? Not, certainly, that the article
is a chattel, but that it is the property of the person in whom it is
laid. This shows that the averment is tantamount to, and is designed to be, an
allegation of property, and not a description of the particular species of estate,
and as distinguishing between personal goods and real property. If the allegation be equivalent to an averment
of ownership, it would be surplusage, in this indictment, in which there is an express
averment of property in Coalson. This certainly lays the property, with as much
certainty, in Coalson, as would the averment that the "domestic" was his goods and
chattels, or of his goods and chattels. And we are of opinion that the indictment is not
defective, for the want of an averment that the domestic was goods. The indictment is further charged with
uncertainty, for the want of an averment of a specific venue, whence the goods were stolen.
What was intended by this objection, we are not informed. If it be meant that the city,
village, or house, in which the property was stolen, must be averred, the
objection cannot be sustained. The crime was alleged to have been committed in a specific
county; and we have been referred to no law or principle, requiring a more minute
specification. We are of opinion that there is error in the
judgment; and it is ordered that the same be reversed and cause remanded. Reversed and remanded. Tex. 1853. THE STATE v. T. W. B. ODUM. 11 Tex. 12, 1853 WL 4391 (Tex.) END OF DOCUMENT |
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