Spencer v. Lapsley/Dissent Daniel
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, perhaps, than my own; yet differing so materially from my apprehension 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 incompatible with the former, must necessarily involve the hazard of error, and impress therefore the propriety of great caution with respect to innovations to be adopted.

Wherever the obligation exists to harmonize portions of the previous system with the creation and the exigencies of a new regime, the safest, indeed the only safe guide, must be found in the adherence to enlightened and generally-admitted principles, as a guaranty for the rights and duties deducible both 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 Governor or political head of Texas to make grants of land; conceding, 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 sufficiency 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 without 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 authority 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 is 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 copy. 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 be complete, and must be properly authenticated. Records are never allowed to be adduced in evidence, unless they are perfect records. It is never permitted to garble them, nor to read parts of them, or extracts from them, as evidence. Yet here we have a paper introduced as a record, as the act of the Governor, when the proof relied on to sustain it conclusively shows that the record, if it be one, is incomplete; that it in fact is falsified by itself; and the act of the Governor, if it be his act, is not permitted to speak for itself; but an attempt is made to establish that act by a wholly distinct and independent declaration, by a person styling himself a Secretary.

Every foundation of the plaintiff's claim, so far as it is made to rest upon this alleged grant, or on the verity of the copy, must fail.

This defect in the evidence appears to have been perceived, and its force felt; and hence, perhaps, the effort at the removal or remedy thereof, by the introduction of a petition bearing date on the 2d of May, 1832, signed by Joseph Maria Aguirre, on 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 Governor.

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 contains any description or quantity of land. The petition has reference to an alleged grant as made on the 14th of June, 1830, (nowhere shown;) the order or decree refers to some act or proceeding of the political chief of the Department of Bexar, (nowhere 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 can by no correct induction be received as curing the defects in the first alleged grant, or as supplying the absence of date and of signature, 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 the parties, or rather La Vega, one of them, into possession. To this suggestion it may be replied, in possession of what? It surely cannot be pretended that Lesassier had any rightful authority to create or to originate or to authenticate a grant. He could not determine the rights of claimants, nor decide upon the extent of concessions made by the Government. He had no judicial or discretionary powers touching these matters; he was merely a ministerial and subordinate agent, to execute the orders of his superiors; and accordingly it is seen that in his account of his proceeding he has constant reference to the orders and decrees, recognising these as the only authority for his acting at all. His acts could have no effect whatever, either to confirm or to invalidate those orders or decrees, and of course 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 signature thereto; nor upon the testimony of the assisting witnesses 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 Government, 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 authenticity of this paper rests upon no foundation of legitimate evidence. 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 xecution 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 certificate 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 copies of private papers in the possession of parties-papers, the execution of which he did not see-and by such certificate to conclude or prevent all inquiry into the fact of their execution, or of the bona fides with which they may have been prepared. Here there is no pretence to proof of execution of the alleged power. The instrumentary witnesses, as they are termed, the witnesses present at the execution of the instrument, (and in this instance there appear to 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 witnesses-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 evidence.

The objections urged by the defendant below to the legality of the documents above commented upon, and to their relevancy 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 procurement, any of the badges of fraud, this would have been a sufficient 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 fabrication or procuring of the documents relied on by the plaintiff, or the 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 embraced also the conduct of agents alleged to have been the makers of those instruments; the discharge of these duties in the exercise of powers ascribed to them; and the honesty and good faith of those professing to have dealt with them, and to have derived and to have transmitted rights founded upon those transactions. These considerations, in connection with the incongruities as to dates, and the apparent deviations 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, matter 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 defense, all that has been previously relied on in bar is considered 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 abatement. In this case, the matter tendered was accompanied by an affidavit of its discovery since the issue in bar; but no evidence appears upon the record of an offer to withdraw the latter; 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 necessity 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 acquiescence of the party in sheltering himself under an artificial rule, in a controversy in which was impugned the good faith of that party, is matter for regret, at least, and cannot be altogether indifferent in an inquiry seeking an examination into the fairness of the transactions involved. The removal of this cause from one portion of the district of Texas to another, in neither of which the district judge, upon the facts conceded as known to him, was competent to take cognizance of it, we are told may be presumed to have taken place by consent. Upon what fact such a consent can be inferred, this record does not disclose; and it is difficult to conceive any reason existing with the defendant below for such consent. There are presumptions, however, connected with this removal within the district, from which there can be no escape.

First. It must be presumed that the district judge was cognizant ab initio of his acknowledged interest in the subject in controversy.

Secondly. It must be presumed that he was also cognizant of his absolute disqualification, by reason of that interest, from 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 investigation, 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.