Menifee v. Hamilton

Walker, J. There is some doubt in the mind of the court as to how far this case should be held to be res adgudicata,, having been before this court at its January term (1854), and decided in 11th Texas Reports, 718. One thing—of great importance as the case then stood—was settled, to wit: the validity of the Mexican grant of the land in question to Tomas Buentillo. The controversy is now limited to the question of title as betunen the parties to this suit, proceeding from the Buentillo grant. The right of the defendants below to claim under locations made with full knowledge of the Buentillo title can avail them nothing, and is inconsis — 511 — tent with their own claim of title under Francesca, the daughter by the third marriage of Buentillo; and we shall give this claim of title no prominence in our decision. The main object of the defendants below in obtaining locations was to aid them in making out possessory title under the limitation laws; and as they did not prove three years continuous and uninterrupted possession in themselves or their grantors, nor any notice to the appellee that they claimed under this title, we will dispose of this branch of the case, also, by saying that neither the title by subsequent locations nor the title by adverse possession can be regarded as good for anything in the case. Whether this court, by the decision referred to in 11th Texas Reports, intended that the appellant in the case should have judgment and restitution of the premises, or whether the reversal should only operate to give a trial de novo, is difficult of determination. If the latter, the court below erred in permitting the defendants to amend their pleadings so as to count upon a new and different title from that set up in the former trial. Were such amendments permitted, there would be no end to an action of trespass to try title. Every time a judgment might be reversed in this court, the parties might go on acquiring new muniments of title and presenting new issues of law and fact, thus effectually abrogating the law giving but two actions of trespass to try title to the same party and for the same subject matter. The defendants, having counted upon the one or the other of two titles inconsistent with each other, on the first trial, should not have been allowed to set up a new and different title upon a second trial. The rights of the parties are fixed when the demise is laid, and they can not be allowed to acquire even good titles pendente lite, to defeat an adversary, much less should they be allowed to set up bad ones. But there are other errors appearing upon this record. We find this very remarkable language used in the charge of the court to the jury. The charge says: “ The deed from the widow of Buentillo conveyed all his right to Vasquez, if she — 512 — was competent in law to make that conveyance and pass the title. Now, what her rights to the land really were, or what were the rights of her children by Buentillo, or of his child by a former marriage, it is difficult to determine, as there has been no proof on this subject, and no law has been adduced governing those rights; and in the absence of such proof and law it is not unreasonable to presume that she was authorized to make the sale, especially under the sanction and co-operation of the judge as provided, if the jury should believe the receipt purporting to be his to be genuine.” This jury, then, without facts and without law to determine the very impinging questions in the case, were certainly in the dark, and the blind were leading the blind. It was the duty of the court to explain the law, being held to understand it, and the jury should have been told what was the legal standing of the widow and children of Buentillo, and what deeds of theirs were good and what bad in law to pass title. But for the latter part of the quotation, which goes on the doctrine of presumptions rather further than a plaintiff in ejectment would have a right to go, the charge is an impartial one, and it is not obnoxious to criticism for prejudice. The charge was perhaps erroneous in supposing that the widow of Buentillo, by her deed to Yasquez, conveyed all the title of her husband. She might have been perfectly competent in law to convey all her own interest in the land, but not the interests of her husband’s children; and yet she might, under the civil law, have been competent to convey both, and from the nature and wording of her deed she appears to have intended this, and this view is further supported by facts and circumstances. The receipt of Jose de los Santos, judge of the first instance at Goliad, to Encarnación Yasquez, the amount of money paid by Yasquez to Santos as the share of Francesca, are all coroborative of the fact that she, the widow of Buentillo, (known in the deed as Maria Ynez Rangel), at least attempted to convey clear title to the whole of the land to Yasquez. Whether she really and legally did convey such title is much more doubtful. — 513 — Much is contended for by counsel, on the score that the land-in question, if ever community property, was such as between the third wife of Buentillo and himself, and not as between him and his fourth wife, Maria Ynez Bangel. Admitting this to be an unsettled question would invest the case with greater doubts than now overhang it; but we think the evidence, at least for the purposes of this case, is sufficiently clear that Buentillo’s title was onerous or by purchase, and whatever might have been the inchoate equities in his favor, arising out of long frontier service and pioneer defense, he acquired the title during coverture with his last wife, Mrs. Bangel. This, then, gave Mrs. Bangel one-half the land in her own right, as community property, and each of her children and Francesca were entitled to the third of one-half, or one-sixth of the whole. The consideration for the land paid by Yasquez was one hundred and fifty dollars, one-sixth of which, or twenty-five dollars, was the amount of the money reserved for Francesca by the Judge Santos. The only title in the defendants below not yet alluded to is that derived from Francesca Dies, dated June 11th, 1841, to William B. Hensley, and the deed from Jesus Hernandez and wife, Francesca Buentillo Hernandez, to Menifee and Peck, the appellants, dated November 18th, 1853, reciting and confirming the former deed to Hensley for two-thirds of the Buentillo league. The validity of this title proceeds upon two assumptions. The first is that the land in controversy was community property between Tomas Buentillo and his third wife, the mother of Francesca; and the second that the conveyance of Francesca’s interest by Mrs. Bangel, her step-mother, assisted by the judge, was a nullity. The first of these objections to the title of the appellee is sufficiently explained by the evidence, and has been treated already in this opinion. We have also alluded to the second, but will further say that the evidence is, in our judgment, sufficient to warrant, the jury in finding for the appellee. — 514 — Guardians and tutors of minors by the civil law had power, under the direction of the proper court, to convey the estates ■of their wards. It is claimed that the grandmother of Francesca was properly her guardian; and there is some plausibility for this claim, but we think it insufficient to overcome the contrary presumption that Mrs. Rangel acted as such, and was so recognized by the judge of the first instance at Goliad. How, there must be some presumptions in favor of judicial acts. One is that the court did not act without authority, nor would have recognized Mrs. Rangel as the proper guardian, unless she had been such. (See Burris v. Wideman, 6 Texas, 231.) In Alexander’s Heirs v. Maverick, 18 Texas, 179, the court say : “ It would seem that the probate courts are courts of general jurisdiction over the estates of deceased persons, and that all presumptions are in favor of the regularity of their proceedings, which can not be impeached except for fraud, or by showing that in the instance of that estate the jurisdiction did not attach.” Giving, then, the scope of this doctrine to the acts of the court, we think that the title of the appellee was sufficient to support a recovery in ejectment. There were errors in the court below. Some of them have been alluded to. But this court will not reverse the judgments of the District Court for minor errors, when no substantial injustice has been done to the party seeking to obtain a reversal. In the case of Hamilton v. Menifee, 11 Texas, all the vexed questions as to the* validity and locality of the grant were settled in a most able opinion of the Chief Justice. In this case it matters not whether the lands lie within or without the littoral leagues, or whether within the Powers and Hewetson grant, or within the Refugio Mission grant. These are all questions now eoraon non judioe. The case has been one of some difficulty to the court, but after patient and careful examination of the whole matter before us, inclusive of all the very learned briefs and arguments, we can do no otherwise than — 515 — confirm the judgment of the District Court, and order restitution of the land described in the judgment below, with costs, to the appellee. Affirmed.