Fulton v. Duncan

Wheeler, J. There is but one ground of objection to the title of the defendant 'in this case, which is not so fully answered by the repeated decisions of this Court upon similar titles, as not to require further notice ; that is the misdescription in the power of attorney under which the final title • was obtained, of the quantity of land embraced in the concession. It is spoken of in the power, as a concession of eleven, instead of what it appears on its face to be, a concession of five sitios of land. But this evidently is a mere clerical mistake as to one of the descriptive circumstances mentioned in referring to the concession, which itself accompanied the power ; and it is corrected by other matter of description given, so as perfectly to identify the concession, and place it beyond the possibility of mistake or cavil, what particular concession or grant was intended. It is described by its date, the authority by which, and where made, the name and residence of the grantee, and is fully and accurately described in every other particular, except that it is called a concession of eleven, instead of five sitios of land. It is evident from the face of the title, that this is a mere clerical mistake ; and it is so fully corrected by other matter of description in the power of attorney where it occurs, as to create no ambiguity, if the concession and the power were now to be regarded as separate and distinct instruments or evidences of title. But they are not to be now so regarded. The concession accompanied the power, was [48] passed upon by the proper authorities, the Alcalde and Commissioner, and incorporated into the final title, of which it is a constituent part; so that there can be no possible mistake, or doubt, nor can it be made a question, as to what concession it really was, upon which the title issued. That is res adjudicada, evidenced by the title itself. There is, therefore, nothing in this objection to the title. Instead of being an evidence of fraud, as the Court below supposed, it is rather the reverse. For Courts have often remarked, what common observation •teaches, that where parties intend the perpetration of a fraud, they are apt to attend with the greatest nicety to all the minute circumstances necessary to clothe their transaction in a perfect garb; while men, conscious of the rectitude of their intentions, are less attentive to the minor circumstances of mere form. The verdict was doubtless returned under the influence of the doubt thrown upon the validity of the title, by the charge of the Court on the subject of fraud. But the charge was wholly unwarranted by any evidence whatever, of any fraud practiced, or attempted to be practiced in obtaining the grant, concession, or title. The rule that fraud is not to be presumed but must be proved is especially applicable to such a case. The effect of the charge, was to cause the jury to deduce the conclusion of fraud from the face of the title ; from the fact that the grantee sold after obtaining the concession. But repeated decisions of this Court have settled, beyond question, that those who acquired land by purchase under the 24th Article of the Law of Colonization of the 24th of March, 1825, under which this grant was made, were at liberty to sell as soon as the grant was obtained. They did not come within any inhibition upon the power of alienation, contained in the laws of colonization ; and their right to sell “ at any time ” is expressly recognized in the 27th Article of the same law, with only the qualification therein imposed. (11 Tex. R. 391; 14 Tex. R. 191.) The sale by the grantee was the exercise of a [49] legal right, and did not afford any evidence of fraud in obtaining the grant. The charge assumes that Garza was but a nominal grantee; that the real grantee was Chambers, and that he had not the legal capacity to take under the law. But there is not the slightest foundation afforded by the grant, itself, or by any other evidence, to warrant either supposition. The contrary, it would seem, was the fact, if we might refer to the evidence afforded by other cases upon which this Court has adjudicated. (Ruis v. Chambers, 15 Tex. R. 586.) Besides, whether the person to whom the grant was issued, possessed the requisite legal qualifications, is a question which was passed upon and determined' by competent authority at the time; and can not now be enquired into. (Styles v. Gray, 10 Tex. R. 503; 14 Id. 189; Ruis v. Chambers, 15 Tex. R. 586.) But it is sufficient for the disposition of this case, that the charge of the Court, upon the subject of fraud, was not warranted by the evidence; was manifestly erroneous. The other objections to the title, urged in argument by the appellee, require no other answer than a reference to the decisions of this Court, where they have been fully considered and disposed of. (7 Tex. R. 384; 10 Id. 461; 11 Id. 391; 9 Id. 167; 14 Id. 165; Clay’s Heirs v. Holbert, Id. 189; Ruis v. Chambers 15 Tex. R. 586.) Upon the authority of these decisions, the title of the defendants must be held to be a good valid, title. Consequently the charge of the Court was erroneous, and the verdict of the jury contrary to law and the evidence ; for which the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded.