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
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
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
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
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.
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
2d. That the verdict is illegal in having found the present value of the land
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 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
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.)
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
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
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
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
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
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
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
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
Cravens and Perry and J. T. Jennings, for appellant.
R. A. Reeves and J. M. Ardrey, for appellee.
*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
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
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
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
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
*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.
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
*2 1st. That the bond was not certified and returned to the District Court as the
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.
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
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
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
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.
THE STATE v. T. W. B. ODUM.
11 Tex. 12, 1853 WL 4391 (Tex.)
END OF DOCUMENT