Clay's Heirs v. Holbert

Per Curiam. This was a suit to recover land. The facts — 200 — were agreed upon, and it was agreed that if the Judge should be of the opinion, that the law of the case was with the plaintiffs, that he should give judgment that they should have the land sued for and one cent damage ; and if he should believe the law to be against the plaintiffs, he should give judgment accordingly against them. The Judge gave a judgment in favor of the defendant, from which judgment the plaintiffs appealed. The title claimed by the plaintiffs was for a part of an eleven league grant to a Mexican, by purchase. The title is in the usual form in such cases. The petition of the grantee to the Governor for the purchase of that quantity of land, and the grant of the Governor, then the petition of the grantee to the Alcalde of the jurisdiction of San Felipe de Austin, as special Commissioner, to order the lands that had been designated to be surveyed, the reference of the application to Austin and Williams, within whose empressa the lands were situated, then comes the order of survey, the Surveyor’s return, and the title of possession extended by the special Commissioner, regular in every respect, with the exception of there being but one assisting witness to the Commissioner’s title of possession. The only question, we believe, that can be raised against the title of the plaintiffs is this want of two assisting witnesses to the title of possession. Does this want of two witnesses of assistance render the title of the plaintiffs absolutely void ? Or, does it only render the authentication void, and leave the title open to be proven by other witnesses ? The latter is contended by the appellants to have been the law then in force, and the law that must govern the case. It is insisted that the legal effect of having two witnesses of assistance is, that it would then be full proof, per se, of the execution of the title by the Commissioner, but that the want of the two witnesses assisting only imposes on the grantee the obligation of proving the fact of the execution, by other evidence. (See Escriche Dic. Juris, verbo Inst. Pub. VIII.) For the appellee, however, it is said that the Instructions to — 201 — the Commissioner require that in the execution of the title there shall be two assisting witnesses ; and this is, perhaps, the only ground of objection to the proof aliunde, of its execution. The Instructions are of the date of 4th September, A. D. 1827, and, so far as material to the present enquiry, are contained in Art. 27, as follows, i. e. “ Todos los instrumentos “públicos de posesión y testimonios, que firme d Comisionado “ serán autorizados con dos testigos de asistenciawhich is translated by the compiler of the Laws and Decrees of Coahuila and Texas, “ All public instruments of possession and attested “ copies, signed by the Commissioner, shall be attested by two “ assisting witnesses.” It has been insisted on the part of the appellants, that the translation is not accurate, and that if correctly translated it would read, “ all public instruments of pos- “ session and testimonios, signed by the Commissioner, shall be “ authenticated by two witnesses of assistance.” The difference is in this, that the first translation given is that the one makes the witnesses to the execution of the instrument, but does not authenticate it so as to make it full proof, per se, and that the other is not merely to attest the execution, but full authentication. If the law positively requires a certain number of witnesses to the execution of the contract, the want of that number might annul the instrument; but if it is only to authenticate, this does not impair the contract executed, nor its execution, but would only be a defect in the authentication, but would not forbid a resort - to other evidence to authenticate it; such as proof by persons who either saw the transaction, or were familiar with the handwriting of the person who had executed the instrument. If, however, the law of the contract, that is, at the time it was entered into, had declared that it should be void, if not witnessed by the given number of witnesses, as in some States, a sale of land by deed is required to be witnessed by the legal number or it will be void, or as under some Statutes of wills, the will is void unless witnessed by the required number of witnesses, it would be held void. There was no law in force at the time, declaring the nullity of the title unless; — 202 — it was authenticated by two assisting witnesses. The Instructions to the Commissioner do not assume that such shall be the ■consequences of a failure on the part of the Commissioner to have his title of possession so authenticated. The authentication was designed for the benefit of the purchaser, to relieve Mm from the necessity of proving the execution, and the Commissioner was required to have the title so authenticated for the purchaser, under, not the penalty of nullity, (that would have fallen on the purchaser,) but under the personal responsibility of the Commissioner. He was responsible to the Government, and perhaps would have been responsible to the purchaser, for ■any inconvenience or loss which he might sustain, for want of the authentication. The 28th, and last Article of the Instructions to the Commissioner is as follows: “ The Commissioner “ shall be personally responsible for all acts and provisions by “ him effected or performed in violation of the colonization law “ and these Instructions.” (Laws and Dec. Coahuila and Texas, p. 72.) That a defect of authentication can be supplied by •other evidence, see authority before referred to from Escriche. It is believed that this being a sale of land, not made by the Commissioner, but by the Executive, and so far as the right of the purchaser is concerned, the Commissioner’s duty did not begin until after the right had been acquired by purchase from the State, and it relates then mainly to the reference to a Surveyor, and his approval of the survey, and the putting the purchaser in possession, and his title was only evidence of the right •acquired by the purchaser, and did not give or convey the ¡right, because the right had accrued by the act of the State Executive. And in this view of the question, is found an answer to the point assumed, that the purchaser’s title was inchoate, from the defect in the authentication of the sale, and that it could only be supplied by the action of the political authority. If the purchase had been conditional, and something left to be done by the Government, the right would have been inchoate ; but where there is nothing left for the Government to ■do, the right is perfect, although the purchaser may not be in — 203 — possession of an authentication of the evidence of such right, but is in possession of a valid title of possession from the Commissioner. Such is this case. There was nothing to be done: no reference to a superior authority for approval, upon the contingency of which the right depended. The title, being defective in not making full proof, per se, was nevertheless a valid title. When the Commissioner gave the title of possession to the purchaser, the right of the purchase was perfect, and became so by the evidence of the particular land purchased, although the authentication of the right was not made. This was a mere matter of evidence, and could be supplied. The distinction between a contract giving or creating a right, and the execution or authentication of the evidence of a right, may be illustrated by the instrumental witnesses to a notarial contract, and the assisting witness to a paper that was not the contract, but only evidence of the contract. The instrumental witness to a notarial contract must know the parties ; must know what was the subject of the contract. They are so far parties to the contract that they are required to see that it is correctly entered by the Notary. This is essential to the contract itself. (See Escriche, verbo Instrumento, 1 § 3.) Not so assisting witnesses merely to the execution of the instrument, that is, that the party did put his name or rubric ; this may be done without any knowledge of the witnesses of either the persons to the contract or the subject matter. The necessity of the instrumental witnesses to a notarial contract may exist, and the act notarial may be void without them, because they are constituents in the making of the contract, whilst the same result would not follow from the want of the assisting witnesses to the title issued of possession in this case. We believe that it was competent for the plaintiffs to prove the execution of the Commissioner’s title of possession, by resorting to other testimony, without relying upon the defective authentication, and that it was so proven. We will give a passing notice to another objection taken by the appellee to the appellants’ title: “ That the land conceded — 204 — was sold before the grant had been obtained.” It is a sufficient answer to this objection, that the sale was not prohibited. Art. 27 of the Colonization Law, (L. and D. C. and T. p. 20,) expressly authorizes “ those who have acquired land by pur- “ chase, to alienate the same at any time, provided the succes- “ sor obligates himself to cultivate the same within the same “ term as was obligatory on the part of the original, likewise “ reckoning the term from the date of the primitive titles.” The primitive title is the concession from the Executive of the State, and it was competent for the purchaser to alienate at any time after his primitive title. The mistakes of courses and of the name of Liendo for Acosta would have been explained by the report of the field notes, if taken altogether, without any other explanatory proof; but if proof had been necessary, it is very satisfactorily shown by the testimony of the Surveyor. There was no question, of any sort of doubt, raised upon the record, but the one first noticed ; and we think the evidence fully made out the title of the plaintiffs to the land sued for, and that the judgment ought to have been given under the agreement and in conformity with it, for the plaintiff. The judgment is therefore reversed, and rendered in favor of the plaintiffs, according to the agreement made a part of the record, &c., &c. Reversed and re-formed.