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