Spencer v. Lapsley, 61 U.S. (20 How.) 264

Eliphas Spencer, Plaintiff in Error, v. John W. Lapsley.

The judge of the District Court of the United States in Texas had power to order the record of a suit in which he was interested to be transmitted to the vircui Court of the United States in Louisiana. , ..

A plea in abatement, filed in connection with pleas in bar, was irregular; an refusal of the court below to allow the plea to be filed is not subject to e view of this court. . .r A contract for the sale of eleven leagues of land in Texas, issued before revolution, and subsequently located within the colonizing grant of Aus in Williams, with their consent, and certified by the Secretary of State, was g without the signature of the Governor. . So far as the land was within the colonizing grant of Robertson, his conse

not necessary, the term of his grant having expired. . . f Where no organization of a colonial grant had taken place by the intro uc settlers, the land not occupied was open for public sale, with the consen empresario, and the alcalde was a proper person to put the purchaser in p

That the survey was made before the order of survey was directed

was not fatal to the grant. Any preliminary defects were cured by t e p _ The fairness of the grant cannot be investigated at law, at the instance o A power of attorney, authenticated before a regidor, proved by the handwrit’ g of the regidor and the assisting witnesses, held sufficient.

This case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

It was an action of trespass to try title, brought by Lapsley against Spencer, originating in the District Court of the United States for Texas, which sat at Galveston^ thence removed to the District Court which sat at Austin, and thence removed to the Circuit Court of the United States for the eastern dis trict of Louisiana.

The narrative of the facts of the case, and of the points which successively arose upon the trial, is fully given in the opinion of the court; and the statement of the points which were made by the counsel who argued the case in this court, renders it unnecessary for the reporter to repeat them.

It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Hughes for the defendant, upon which side there was also a brief by Mr. Hale.

Mr. Justice CAMPBELL delivered the opinion of the court.

The defendant in error, Lapsley, commenced this suit in January, 1851, in the District Court of the United States for Texas, against the plaintiff in error, Spencer, to recover a par cel of land, and damages for the ouster he had suffered. At the April term of the court, 1851, the defendant appeared and demurred to the petition, assigning—1st. The description of the premises is insufficient. 2d. The citizenship of the parties 13 not specifically averred. 3d. There is no endorsement on tbe petition, as the statutes of Texas require.

With this demurrer, an answer containing pleas of not guilty, the statute of limitations, and that the plaintiff claims under a grant with conditions, and that the grant is fraudulent, and he conditions were not performed, was filed. Subsequently to the act of Congress of 3d March, 1851, (9 Stat, at L., ch. 32, SpCLp P* ^18,) this cause was transferred to the District Court o lexas, held at Austin. No order of the court appears for is transfer, and it is presumed it was done by consent. The th e^an^8 appeared to the cause at Austin, by attorney. At e -November term of that court, in 1854, the following order ^smade by the District Court:

ca.me the plaintiff aforesaid, by his attorney, and sid*3110^1011 8a^ Pontiff, by his attorney, the judge now pre-with fi8^68, and enters upon the record that he has an interest in 1’the land in controversy in this suit, which, of th O^lu^on’ renders it improper for him to sit in the trial orrln 6 ^lne’ aad, thereupon, the court upon further motion rs, because there is no Circuit Court of the United States

Spencer v. Lapsley.

in this State, that an authenticated copy of this order, and of all the record and proceedings in this action, be forthwith cer tified to the Circuit Court of the United States for the eastern district of the State of Louisiana, at New Orleans, that court being the most convenient of the United States Circuit Courts in adjoining States.”

The authority to make this order is supposed to be derived from the act of Congress of the 3d March, 1821, (3 Stat, at L., ch. 51, p. 643,) which provides: “ That in all suits and actions in any District Court of the United States, in which it shall appear that the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be the duty of such judge, on application of either party, to cause the fact to be entered on the records of the court.” He was then required to order an authenticated copy of the record to be certified to the most convenient Circuit Court of an adja cent State; which Circuit Court shall, upon such record being filed with the clerk thereof, “take cognizance thereof, in the like manner as if such suit or action had been originally com menced in that court, and shall proceed to hear and determine the same accordingly; and the jurisdiction of such Circuit Court shall extend to all such cases, so removed, as were cogni zable in the District Court from which the same was removed.”

The record was filed in the Circuit Court in Louisiana, in April, 1855, and the cause was continued until the April term of 1856, before it came to trial. In April, 1856, the defendant moved to dismiss the cause: 1st. Because the record shows that the judge of the District Court for Texas, before the suit was brought, had an interest in the land in dispute. 2d. Said interest disqualified said judge from making an order in the cause. 3d. That his orders were void. 4th. That the Circuit Court at New Orleans had no jurisdiction.

It is quite unimportant to consider whether a judge can make any, and if any, what orders, in a suit in which he is in terested. This was much discussed in the Grand Junction Canal Company v. Dimes, 12 Beav., 63; 3 H. L. Ca., 759. The act of Congress proceeds upon an acknowledgment of the maxim, “that a man should not be a judge in his own cause, and requires a judge found in that predicament, on the motion of either party, to make an order for the removal of the cause to another competent jurisdiction. No other order in this cause was made by the district judge, and he was not author ized to act under the statute, except on motion, and when the motion was made the order was entered. The entry on the

record by the judge imports verity, and his order authorized the Circuit Court at New Orleans to take cognizance of the cause.

The defendant obtained leave of the Circuit Court to amend his answer the third term after the transfer. In the amend ment, after adding to his pleas in bar of the action, he pleaded that the apparent legal title was vested in the plaintiff by col lusion between him and three other persons, who were citizens of Texas, (one of whom was the judge of the District Court,) to litigate and establish a fraudulent grant in that court, and that these persons were the only persons interested in the said grant. In so far as this statement contained any defence to the action, it was comprehended in pleas already on file. As a plea in abatement of the suit, it was open to the objections that it was pleaded, without an affidavit, five years after pleas in bar had been filed, and which were undisposed of, and that it was filed, in connection with other matter, in bar. Such pleading was contrary to the rule and practice of the courts, and was properly disallowed. (Shepperd v. Graves, 14 How., 505; Bailey v. Dozier, 6 How., 23; Drake v. Brander, 8 Tex., 351; Dallam----------- , 590.)

The defendant then applied for leave to file a formal plea in abatement, containing the same allegations as those before stated; and with this plea the defendant propounded thirty-one interrogatories to the plaintiff, to obtain evidence for its support; and also filed an affidavit, to the effect that he had not discovered the facts pleaded at the time his plea of the general issue had been filed in 1851. But the defendant made no offer to withdraw his pleas in bar; nor did the affidavit show when or in what manner his discovery was made; nor why the application to file the plea and obtain the evidence ad not been made at an earlier date; nor why it was delayed U a time when any allowance of it might operate a continuce’when the case had already been pending for a year in he Circuit Court. The Circuit Court denied the application, th " ^a.8 decided that such applications are addressed to e judicial discretion of the inferior court, and its decision is ^ot open for revision here. It has decided that the refusal of to h cour^ allow a plea to be amended, or a new plea in or to grant a new trial or a continuance, or to re state a cause which has been legally dismissed, cannot be jL ne^ f°r error in this court. (Marine Ins. Co. of Alexg Hodgson, 6 Cr., 206; Sims v. Hundley, 6 Howard

0P^/0rtoight after these dilatory motions had been disposed ’ e cause was submitted to the Circuit Court on its merits.

Spencer v. Lapsley.

The title of the plaintiff consists of a petition of Thomas De La Vega and two other persons, addressed to the Government of Coahuila and Texas, the 14th June, 1830, each to purchase eleven leagues of vacant lands, under the twenty-fourth section of the colonization law of Mexico. The Governor responded to the petition, that “he concedes in sale to each one of the petitioners the eleven leagues they solicit; ” to be selected after the commissioner of the Supreme General Government shall have reserved a sufficiency of lands to meet the debt of the State. He orders the constitutional alcalde of the municipality to which the lands selected may belong, to give the possession of the leagues, to settle the class of the lands, so as to adjust the price, and to despatch the corresponding title in form. No further proceedings took place until May, 1832, upon this con tract. At that date, one of the parties, for himself and the others, represented to the Governor the facts contained in his former memorial, and the executive order; that no impediment existed to the fulfilment of the contract, and that it might hap pen the parties would select lands within an empresario con tract, and therefore prayed that either the alcalde before whom they might present themselves, or in case that he could not do so, that the commissioner of surveys might perform the acts requisite to the delivery of possession and the perfection of the title.

The Governor thereupon nominated the commissioner tor the distribution of lands in the empresa to which the lands selected might belong, to perform the acts necessary; but, it they did not belong to an empresa, that the first alcalde of the respective municipality, or that most convenient, might act, so that, according to law and the instructions, possession might be given.

In the following year, (3d October, 1833,) Samuel M. Wil liams, professing to be attorney in fact for La Vega, presente authenticated copies of the petitions and orders before men tioned to the alcalde of the municipality of San Felipe e Austin, and solicited the location of his contract of purchase upon lands at a designated point on the Brazos river, within the colony of Austin and Williams, if they would consent, an referred to the order of the 2d May, 1832, as conferring a authority for that purpose. The alcalde granted the prayer o the petitioner, and directed that the consent of the empresan should be obtained, and that the surveyor of the colony survey the lands at the place designated, and should them so that theprice might be settled. The empresario, liams, consented for himself and as attorney for his partn, and the surveyor returned the order of survey with a figura

Spencer v. Lapsley.

plan and notes of survey of the eleven leagues. On the 4th October, 1833, the constitutional alcalde despatched the title in form, which contains a recital of the petitions, orders, consents, and survey, the authority conferred, the price settled, and the investiture of the possession and property. The plaintiff, on the trial, connected himself with this grant by conveyances which had been recorded, and as to which no question arose, except in reference to a power of attorney from La Vega to Williams, under which a deed had been executed in 1840 to Menard and Williams, in trust for Sophia St. John.

The defendant produced no documentary evidence of title, and relied on a possession of some two or three years.

No exception was taken in the Circuit Court to the intro duction of the various public acts which constitute the evi dence of a title in La Vega; nor was there exception to the charge of the court which pronounced the evidence adduced of its authenticity, competent. It may be proper to state that the title, in the Mexican language, was authenticated from the land office of Texas, and that the translation in the amended record in this court was used in the Circuit Court for conve nience only. But the sufficiency of those papers to vest a title in the grantee, and their supposed want of conformity to the laws, of Coahuila and Texas, were much debated, and the opinion of the court upon them has been properly reserved for the examination of this court.

The power of the Governor of those States to sell lands to Mexicans, not exceeding eleven leagues in quantity, is unques

tionable; and. the petition and order in 1830, in connection

with the petition and order of May, 1832, are evidence of such

a contract. The proceedings in 1830 are sufficiently identified

oy the statements and recitals of the papers dated in 1832,

even if we were to hold that the absence of the Governor’s

81^alUre order is a fatal defect. But that petition

and th? executive order are certified by the Secretary of State

aS i k documents 5 they were so treated by the Governor

ana the constitutional alcalde, and the petitioners, in the sub-

proceedings. The Secretary of State is designated in e Constitution of the confederate States to authenticate “all aws, decrees, orders, regulations, and instructions, circulated ong the towns, or directed by the Governor to a particular orporation or person,” and that without this requisite they term °heye(l or he productive of faith. At the present the^ d cour^ we have decided that a decree not signed by but which is found in the record, and is certified by bp ii v an<^ yhieh has been executed by the parties, cannot collaterally impeached for the want of the signature. (Se-

Spencer v. Lapsley.

combe v. Steele, supra.) And the courts in Texas have de cided that titles in form, executed without the requisite number of witnesses, are still valid, though there is a special require ment on the subject of the number of the witnesses in the law. (14 Texas R., 189.) We do not feel authorized to deny faith to the act certified by the Secretary, of State as an official paper, nor can we assume that the order certified did not re ceive the executive sanction.

The Circuit Court instructed the jury, “ that the court was required to take notice of the organization of the States of Coahuila and Texas, and of the officers who were competent to perform the duties imposed in the decree of the Governor, upon the petition of La Vega.

“ The court charged, that there was no such organization of the colonies of Robertson, or of Austin and Williams, as to render it indispensable for the grantee to apply to a commis sioner for distribution to perfect the grant of the Governor; that those colonies were not empresas in the sense in which that term was used in that decree; and that having reference to the location of the land and the situation of the parties, as is shown by the evidence, the alcalde of Austin was a proper officer for taking the measures requisite for the perfection of the grant.” The land described in the title was situated within the limits of both the colonies before mentioned. The colo nization contract of Robertson was granted in 1825; its exe cution was suspended in 1830; and it expired, by limitation, in 1831, and was not again renewed until 1834. The selection of the lands was made after it had expired, and before it was renewed. The history of this empresa has been judicially as certained by the Supreme Court of Texas; and they have a so decided that lands in a colony thus situated might be so without reference to the empresario in such a contract, ' ton v. Robertson, 2 Texas, 1; Jenkins v. Chambers, 9 lexas, 1G7

The empresario contract of Austin and Williams was con eluded in 1831, and included land embraced in the Róbense colony. This land was excluded from their contract in > when Robertson’s contract was renewed, and was res or 1835. (Houston v. Perry, 5 Tex., 462.) No eoj^^ssion appointed for this colony until September, 1835.. The c of an empresario obliged him to introduce colonists m o P cific district. The colonist having a family was entitle league of land, of a particular quality, for which he pai sum to the Government. The empresario was paid hve & Qf and five labers for every one hundred families introauc • course, the excess of land within the limits of the co ony,

Spencer v. Lapsley.

supplying the colonists and the empresario, remained to the Government. The commissioner of distribution was an officer of the Government, who superinfended the fulfilment of the contract by the empresario. He ascertained the character of the colonists, allotted to them and the empresario their shares of land, and for that purpose appointed surveyors, received returns of survey, and executed the final titles. Usually this officer was not appointed until colonists were introduced, and a community was to be formed. The sale of the land within the limits of the colony might disturb the interest of the em presario or of the colonists, and hence reference of the contracts of sale to the commissioner for execution. If there were no colonists, and the empresario opposed no objection, there was no reason why sales should not be made, nor was there any occasion for the services of a commissioner.

Sales of land could only be made to Mexicans, and no in quiries as to their character were required. We understand the decisions of the Supreme Court of Texas to be, that the alcalde was a competent and proper person to complete the titles on a contract of sale, where no organization of the colony

had taken place. The case of Clay v. Holbert, 14 Tex. R., 189,

resembles that before the court. The contract of sale is dated

in 1831. The commissioner or alcalde was ordered to put the

purchaser in possession, and to issue the corresponding titles.

The lands were selected in the colony of Austin and Williams,

in September, 1833. Williams consented for himself and part

ner. The survey was returned by Johnson, the surveyor. The

alcalde, (Lesassier,) who officiated in this case, completed the

title. The Supreme Court of Texas determined the grant to

be valid. (Watrous v. McGrew, 16 Tex., 512; Ryon v. Jack-

$74; Hancock v. McKenny, 7 Tex., 384; Jenkins

v. Chambers, 9 Tex., 167.)

The Circuit Court further instructed the jury, “that the grant could not be defeated by proof that the principal surveyor did not in person perform the work of making the surveys, or because the survey was made before the order directed to the surveyor by the alcalde was entered on the grant,” and, upon ne whole case, that there was no such evidence of fraud in acti ma^n^ the grant which would serve to defeat it in this

charge of the court in reference to the survey, followed judications of the Supreme Court of Texas and of this court, u analogous cases. It was a common practice in Texas for mpresarios and others to have their surveys completed in an-

°n the arrival of colonists, or the measures requisite he procurement of the final title* The return of such sur-

Spencer v. Lapsley.

veys by a surveyor, and their recognition by the commissioner or alcalde, was treated as a substantial compliance with the law. A surveyor might adopt the surveys of other persons. (Jones v. Menard, 1 Tex., 789; Howard v. Perry, 7 Tex., 259; Horton v. Pace, 9 Tex., 81; Jenkins v. Chambers, 9 Tex., 167; Doswell v. Lanzo, 20 How. S. C. R.)

In Hoofnagle v. Anderson, 7 Wheat., 212, this court say: “It is not doubted that a patent appropriates land. Any de fects in the preliminary steps which are required by law are cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation.” In Boardman v. Reed, 6 Pet., 328, the defendants offered to prove that the lines were not run by a qualified surveyor; that the plats and certificates were made out by protraction, and had been surreptitiously re turned to the register’s office, and patents obtained.

The court said, “that at law no facts behind the patent can be investigated. A court of law has concurrent jurisdiction with a court of equity in matters of fraud; but the defects in an entry and survey cannot be taken advantage of at law. The patent appropriates the land, and gives the legal title to the patentee.” (White v. Burnley, 20 How.)

So, if we were to consider the discrepancy of one day be tween the date of the preliminary order and the date of the certificate of the Secretary, and the absence of the Governor s signature, and »the fact that one empresario consents for him self, and as attorney for his partner, without adducing that power; and that the officers do not affix to their names the name of their respective offices; and that the survey must have been made before the order, and probably by a deputy or other person, as marks of irregularity or of malpractice, our opinion could not be affected. In Stevenson v. Newman, 16 L. and Eq., Baron Parke, in delivering the opinion of the Court or Exchequer Chamber, says: “ The effect of ordinary fraud is not absolutely to avoid the contract or transaction which has been caused by that fraud, but to render it voidable, at the option of the party defrauded. The fraud only gives a right to rescind. In the first instance, the property passes in tne subject-matter,” and “vests till avoided.” And this cour, after a full review of the subject, in Field v. Seabury, 19 How., 324, states the question and the answer applicable to this case. The question was: “When a grant or patent for land, ora legislative confirmation of title to land, has been given by t sovereignty or legislative authority having the exclusive power to make it, without any provision having been made in the paten or by the law to inquire into its fairness, as between the gran

Spencer v. Lapsley.

or and grantee, or between third parties, can a third party raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the grant? ” The reply of the court is, we are not aware that such a proceeding is permittted in a court of law.

But we do not assert that the circumstances enumerated con stitute evidence of fraud. We have seen that the preliminary title is referred to, and recited in all stages through which it passed, and by every officer whom the law appointed to super intend its perfection, and that the survey was in accordance with the current and recognised practice of the country.

The title emanated from the State of Coahuila and Texas, a quarter of a century ago, when Texas was a wilderness. Col onists from abroad were invited, and a league of land was of fered to the colonist having a family, for thirty dollars. Mex icans were allowed to purchase eleven leagues of ordinary grazing land for one hundred dollars the league; or of arable land for one hundred and fifty dollars. These eleven leagues were sold for less than twelve hundred dollars. Since that time, two revolutions in the condition of that State have been ac complished, and a vast improvement in the political condition of the country effected. The defendant entered upon the land in dispute after the second revolution was terminated, and after the burden and heat of the contest were over. He entered without a color of title. Neither the State of Coahuila and Texas, nor the Republic of Texas, nor the State of Texas, has taken measures to cancel this grant, nor have they conferred on the defendant any commission to vindicate them from wrong. He is a volunteer.

The doctrines of this court do not favor such a litigant.

Ihe remaining questions presented by the bill of exceptions relate to the power of attorney from La Vega to Williams, f wbieh a conveyance to Menard and Williams, in trust or Mrs. St. John, of Connecticut, was made in 1840.

Ihe paper produced was the testimonio of an authentic act passed before the regidor of the illustrious Ayuntamiento of e city of Leona Vicario, and second alcalde in turn in it and P wbo, by reason of the sickness of the first aL In + 4 C*’ and bears date in 1832. The donee of this power

^be land for La Vega, and solicited the final title in

’ conveyed the land in 1840. Its authenticity has record ^UG8^one(^ by La Vega, so far as is shown by the

th is an officer known to the Spanish law, and to seo ^P^tion of Coahuila and Texas, (1 Tapia Freb., p. 197,

• , Decrees 124, sec. 6; 262, sec. 11; Laws C. and T.; VOL. XX. 18

Spencer v. Lapsley.

Edwards v. James, 7 Tex., 383,) and was authorized to dis charge the duties recited in the act. Evidence was adduced to the handwriting of the regidor and the assisting witnesses; besides, proof was made that two of them were dead, and the other, beyond the limits of the United States. Considered as the act of a foreign officer, without the support of this proof, the Supreme Court of Texas, in Paschal v. Perez, 7 Tex., 348, say: “Its admissibility and effect is by no means a settled ques tion at common law, and on the principles of international ju risprudence. Whether the rules of evidence of the forum are to be exclusively observed, or whether those of a foreign coun try are to have weight, was considered by Mr. Justice Story as an embarrassing question, and which was not settled. (Story’s Conf. Laws, 634.) But the court in that case, and in the case of De Leon v. White, 9 Tex., 599, decide that a testimonio is suf ficiently established by evidence of the handwriting of the offi cer, and the assisting witnesses. (8 Tex., 210.) The convey ance to the trustees, for the benefit of Mrs. St. John, an alien, was not invalid, nor can the conveyance be impeached by this party, or in this mode of proceeding.

The averment in the petition of the citizenship of the parties corresponds to the form commonly used in the District Court of Texas, and which has never been questioned in the various causes which have heretofore been before this court from that district.

We think that the allegation is sufficiently specific. Judgment affirmed.

Mr. Justice DANIEL dissenting.

I find myself constrained to differ with my brethren as to the views they have taken of this case—views more accurate, per haps, than my own; yet differing so materially from my ap prehension of the law of the case as to impose, according to that apprehension, the duty of endeavoring to explain what by me is deemed its true aspect.

The difficulties and irregularities incident to the removal or to the modification of pre-existing institutions by the introduction and superior control of systems really or seemingly incompat ible with the former, must necessarily involve the hazard o error, and impress therefore the propriety of great caution wi respect to innovations to be adopted. . „

Wherever the obligation exists to harmonize portions oi t e previous system with the creation and the exigencies of a new regime, the safestj indeed the only safe guide, must be loun in the adherence to enlightened and generally-admitted prin ciples, as a guaranty for the rights and duties deducible Do

Spencer v. Lapsley.

from the past and from supervening institutions. In following such a guide, I am conducted to conclusions differing from those which have been reached by the majority of this court in this case.

Conceding in its utmost extent a power in the colonial Gov ernor or political head of Texas to make grants of land; conce ding, too, for argument’s sake, an entire exemption in the plaintiff below from all obligation to produce the original of a grant made by the competent officer; admitting, also, the suffi ciency of a copy from the record, still I hold that a copy, in order to become evidence, must purport upon its face to be a full and perfect copy, and must be verified by some competent person. The grant, or the paper claimed to be a grant in this case, is defective upon its face. In the first place, it is with out date, and consequently can be identified or coincident as to time with no document in this cause; it is not signed by any person whomsoever, in the name or character of Governor, nor by a deputy, nor by a person professing to be clothed with au thority to sign such an instrument. In its structure, it commences by speaking in the first person, as if by the maker of the grant, but breaks off before reaching the conclusion, and 18 incorporated, or converted into a certificate, dated June 13th, 1839, by Santiago del Vallee, signing himself a Secretary, stating that so far as he has given this document, it is a true C0Py. This certificate, then, is a confession, in terms, that the entire act of the Governor is not given, but that the document is incomplete.

The rule of evidence is, with regard to copies, that they must e complete, and must be properly authenticated. Records are ever allowed to be adduced in evidence, unless they are per-

S* *s never permitted to garble them, nor to read Lh ^em’ or.exbracts from them, as evidence. Yet here er PaPer introduced as a record, as the act of the Govthafthe proof relied on to sustain it conclusively shows fok;« j be one, is incomplete; that it in fact is is n + kJ itself; and the act of the Governor, if it be his act, estohr^k1*1?^^ tor itself; but an attempt is made to ratin k ac^ ^7 a wholly distinct and independent declan, by a person styling himself a Secretary. to rest^ foundation of the plaintiff’s claim, so far as it is made ^ust fail^On abeSe<i grant, or on the verity of the copy,

evidence appears to have been perceived, Wedv thCe an^ hence, perhaps, the effort at the removal or on the by introduction of a petition bearing date d of May, 1832, signed by Joseph Maria Aguirre, on

Spencer v. Lapsley.

behalf of himself and the other parties to the former petition, in which it is recited that the Government had conceded to himself and his associates on sale on certain conditions, on the 14th of June, 1830, the leagues of land now asked for in this renewed petition, (no quantity or number being set forth,) and then further states, that the conditions on which the concession here spoken of having been removed or fulfilled, it prays that the proper officers may be appointed to survey the lands, and to put the petitioners in possession. Following this petition, is an order or decree of the same date with the petition, and signed Letona, not styling himself Governor, nor assuming any official designation; but the order is certified by Santiago del Vallee as being a copy from the archives in his charge, and stating that he had been commanded to take this copy from the archives by the disposition of the most excellent Gov ernor.

Upon a recurrence to this petition of the 2d of May, 1832, signed Jose Maria de Aguirre, and to the decree or order of the same date, it will be perceived that neither of these papers con tains any description or quantity of land. The petition has refer ence to an alleged grant as made on the 14th of June, 1830, (nowhere shown;) the order or decree refers to some act or pro ceeding of the political chief of the Department of Bexar, (no where exhibited on this record,) of the 2d of June, 1830, which, of course, cannot be identified with the alleged concession of a different date, viz: of the 14th of June; and the prayer of this petition of Aguirre and the order of Letona pan by uo correct induction be received as curing the defects in the first alleged grant, or as supplying the absence of date and of sig nature, by any official, of any denomination or of any grade of power whatsoever.

But it has been supposed that these material defects have been remedied by the act of Lesassier, purporting to put t e parties, or rather La Vega, one of them, into possession, o this suggestion it may be replied, in possession of what, surely cannot be pretended that Lesassier had any right u authority to create or to originate or to authenticate a gran. He could not determine the rights of claimants, nor decide up the extent of concessions made by the Government. He. no judicial or discretionary powers touching these matters, was merely a ministerial and subordinate agent, to execu orders of his superiors; and accordingly it is seen that in account of his proceeding he has constant reference. orders and decrees, recognising these as the only authori y his acting at all. His acts could have no effect whatever, to confirm or to invalidate those orders or decrees, and. o

Spencer v. Lapsley.

could not supply any defect or insufficiency in their provisions, or in the authentication of them.

This paper, purporting to be the act of Lesassier, is in itself defective as to the proof of its verity; for it is not introduced as a copy from a record, nor established upon proof of the sig nature thereto; nor upon the testimony of the assisting wit nesses at its execution; nor is the absence of those witnesses accounted for.

In the next place, with respect to the deduction of title from La Vega, to whom it is said a grant was made by the Govern ment, by the decrees just examined. The first step in the deraignment of this title is the paper styled the power of attorney from La Vega to Williams, dated May 5th, 1832. The authen ticity of this paper rests upon no foundation of legitimate evi dence. It cannot be considered as possessing the dignity and verity of a record, nor of a copy from a record. It is not shown that the laws of Texas required it to be recorded; and without such a requisition it could not be made in legal acceptation a record, by the mere will or act of a private person. This paper does not appear to have been placed on record, and if in truth it had been recorded in a proper legal sense, still there is no copy said to have been taken from a record, or certified by any legal custodian of the record or of the original document. This paper is signed by Juan Gonzales, who certifies that it was copied, not from the public archives, but from the original, with which he says that it agrees. This certificate is an assertion that the document certified was not copied from a record—that

it is not the original, and that the certificate was not and did

not purport to be proof of the execution of the original. Where,

then, is found proof of this instrument, with respect either to

its dignity as a record, as a copy from a record, or as to the

truth of its execution by the parties thereto ? It has been seen,

then, that this document is neither a record nor a copy from a

record. The language of the instrument and that of the cer

tificate of Gonzales alike contradict any such conclusion; the

certificate declares it to be a copy of a private paper, and

nothing more. The next inquiry pertinent to this alleged

power is as to any authority in Gonzales to certify copies of

records, and still more to certify conies of private papers in the

pussession of parties—papers, the execution of which he did

not see—-and by such certificate to conclude or prevent all

the fact of their execution, or of the bona fides with

which they may have been prepared. Here there is no pretence o proof of execution of the alleged power. The instrumentary wit-esses, as they are termed, the witnesses present at the execu°n of the instrument, (and in this instance there appear to

Spencer v. Lapsley.

have been three,) were not called, nor was any reason assigned for their absence; they seem not to have been even thought of; and with respect to those who are called the assistant wit nesses—the witnesses to the certificate of Gonzales—although it is sworn by Hewetson that one of these witnesses was dead, and the other, J. M. Morel, resided in Mexico, no effort by commission or otherwise was made to procure his testimony, nor was there proof of the impracticability of procuring it. The irregularities connected "with this alleged power of attorney seem to me too glaring, and too obviously liable to gross abuse, and tend too strongly to injury to the rights of property, to be tolerated in courts governed by correct and safe rules of evi. dence.

The objections urged by the defendant below to the legality of the documents above commented upon, and to their rele vancy to the issue between the parties, appear to have been substantially and sufficiently reserved in the fourth and fifth bills of exception by the defendant, and satisfy me that those documents should have been ruled out of the cause. .

It seems to me that there was error in the instruction of the court to the jury, that .there was no fraud in the transactions by which the alleged title to the land in controversy had been obtained or transmitted to the plaintiff.

In this action, the plaintiff could succeed or should have succeeded in virtue of a legal, valid, perfect title, and none other adverse possession, with claim of right, was title until a clear, fair, honest, legal, paramount title in the plaintiff was shown. If, therefore, the documents upon which the claim of the plaintiff was based should have been found to carry with them, either upon their face or in the manner of their procure ment, any of the badges of fraud, this would have been a suffi cient objection to their validity. A blemish, or a defect, or an infirmity, in that necessarily fair and legal title, by which the possession of the defendant, presumed legal as against all_but the true and rightful claimant, could be displaced, would be fatal. What were the circumstances attending the fa^ica^n or procuring of the documents relied on by the plaintiff, or t e manner in which they were transmitted to him, were, it seems to me, subjects exclusively appropriate to the consideration of the jury. The inquiry in this case was not one arising solely upon the construction of written instruments; it em braced also the conduct of agents alleged to have been makers of those instruments; the discharge of these dunes the exercise of powers ascribed to them; and the honesty a good faith of those professing to have dealt with them, an have derived and 4o have transmitted rights founded up

Spencer v. Lapsley.

those transactions. These considerations, in connection with the incongruities as to dates, and the apparent deviation^ from regular official proceedings, and in the conduct of those through whom the title is traced by the plaintiff, from what is usual, appear to be inseparable from the inquiry of fraud in fact and in intent, and should have been submitted to the jury, from whom they were withdrawn by the instruction of the court.

It is unquestionably true, that in courts whose proceedings are regulated by the rules of pleading at the common law, mat ter in abatement is not allowed to be pleaded after pleading in bar, unless, indeed, the matter tendered in abatement shall have arisen, or shall have come to the knowledge of the pleader, puis darrein continuance; and when such matter is allowed in defence, all that has been previously relied on in bar is con sidered as relinquished. Such, however, has been represented as not having been the rule adopted in Texas. There it has been said that a defendant may plead both in bar and in abate ment. In this case, the matter tendered was accompanied by an affidavit of its discovery since the issue in bar; but no evi dence appears upon the record of an offer to withdraw the lat ter; nor am I aware of the necessity of a formal proffer to that effect. The matter tendered in abatement should, if material, be admitted; and where so admitted, the matter previously relied on in bar is by legal consequence, and without any ne cessity for an express order upon the defendant, thereby waived. It is true that the decision of the Circuit Court rejecting this plea is not matter for reversal here, but the consent or acqui escence of the party in sheltering himself under an artificial r k in a controversy in which was impugned the good faith oi that party, is matter for regret, at least, and cannot be alto-Fk £ * ^different in an inquiry seeking an examination into the fairness of the transactions involved. The removal of this caase from one portion of the district of Texas to another, in neither of which the district judge, upon the facts conceded as nown to him, was competent to take cognizance of it, we are

Presumed to have taken place by consent. Upon what fact such a. consent can be inferred, this record does not tlwW ’ an^ *s difficult to conceive any reason existing with e defendant below for such consent. There are presumptions, oyever, connected with this removal within the district, from which there can be no escape.

irst. It must be presumed that the district judge was in$ ontr^ acknowledged interest in the subject

of It must be presumed that he was also cognizant s absolute disqualification, by reason of that interest, from

Mussina et al. v. Cavazos et al.

making any-decision or holding any plea in the cause; and that the removal of it from one point to another within, the district was an useless as it was an irregular and illegal act.

Thirdly. It must be presumed, that knowing himself to be thus disqualified, he could have no legitimate power to retain the cause under his own control for several years; that such a retention might be oppressive as it was illegal; and that his only power was that which the law imposed upon him as a duty, the power of an immediate removal of the cause, upon its institution, to a tribunal exempt from disqualifications which he knew existed with reference to himself. It may truly be thought to have been a mistaken and unfortunate course in those to whom the interests of the district judge were confided, that they did not seek, nay, challenge and insist upon investi gation, rather than exclude it under the stress of a formula in pleading, the application of which was of doubtful propriety, if not irregular in this case. By a different proceeding, they might have met directly charges openly alleged, and might have removed implications, to which the suppression of inquiry may have imparted a semblance of truth.

Upon the considerations hereinabove stated, and with a view to the more thorough investigation as to the law and the facts of this cause than the record before us has disclosed, it is my opinion that the judgment of the Circuit Court should be reversed, and this cause remanded to that court for a new trial to be had therein.