Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 19
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AUSTIN, 1849. 37-38
McMullen v. Hodge.
The plaintiff read in evidence, to deraign his title from the original grantees,
a deed from Antonio Garcia, acting for himself, and pretending to act in behalf
of Eusbrio Auistines, Louis Romero, Jose Maria Garcia, Juanl de la Cruz Celuca,
and Apolonario Riodcregues, alleged to be the only natural descendantss of the
extiaguislhed mission of San Jose, dated 10th Janllary, 1833, to Refugio de la
Garza, describing the eleven leagues of land, as set out in the ancienlit fieldnotes
of tlle survey made tnder tle order of tle cabildo of San Ferniando de
Bex-ar, referred to in the proceedings on the application of Castillo, andl a conveyanee
datedl the 18th of tlle same month from De la [32] Garza to McMuIllen,
tte plaintiff in this suit. To prove tile authority of Antonio Garcia to act for
Ils constituents, a paper was read, dated 7th October, 1833, il whichll argaretta
Del Toro, Louis Romero, and Jose Maria Garcia acknowledged what
Garcia had done for then in January, 1833, and on tile 30th November, 1846,
after the commencement of tilis suit, a similar act of cofiilrmation from Del
Toro. There were several witnesses sworn whose evidence condtced to prove
that the vendors to De la Garza were the only surviving descendants of the
Indians of the mission of San Jose, and also some to prove tlhe manner i which
the mission Inllianis were governed at tie mission and the object of tie institution,
as also tle mnnller in which tlie missioiis were broken up. 'The defendant
ol'ered in evidence a lheadrig'lit certificate granted to him under tlhe laws of
the Republic of Texas, and located on a part of the land claimed by the plaintiff.
The case was submitted to the judge without tle trial by a jury; and the
judgment was against the sufficiency of the title of plantiff, from which lie
appealed.
V. . E. oward, for appellant.
I. It appears tlat the lands claimed by Castillo and the Indians were duly
put up for sale at public auction, being first valued according to law. In both
inethods of disposition this was the rule of proceeding. The only question is
whether tlhe lands were disposed of by composition, so called, which it appears,
under law 15, tit. 12, lib. 4, of the laws of the Indies, (2 Whiite, 53,) rendered
the purchaser a tenant at Nwill. It should be observed that that law is not
referred to in any part of the proceedings as furnishing the rule under which
this grant was made. On the contrary tie only law referred to is 19 of tle
same book adt title, referred to by the royal attorney, as giving tlhe Indiansl the
preference in the disposition of tle lands, whether by sale or composition.
Admitting, for argument's sake, that the law referred to speaks of composition
and not of sale, yet a mistake of the purport of the law by the attorney could
not affect the character [38] of the sale actually made. Thle law is as follows:
"No one shall be admitted to make composition of lands wlho shall inot lhve
been in possession thereof for the term of ten years, although lie should state
that he is in possession at the time; for such circumstance by itself is iiot sufficient;
and communiities of Indianis shall be admitted to make such compositions
in preference to other private individuals, giving them all the, facilities
for that purpose." (2 White, 54.) We should further observe that in tlhe very
preceding sentence to his reference to tle law, the attorney states that there
was no contest which required proof; that tlhe lands were vacant, as decided
by the cabildo-evidently meaning that not having been occupied ten years,
as the law required, they were not subject to composition. Neither did tile
Indians nor Castillo come within law 15 so as to subject the land to composition.
We must therefore presume that the attorney referred to this law\ 19
either to prove that Castillo had no right if the land were admitted to composition,
or to show, what was in fact the law of tlhe Indies, that the Indians were
preferred il all manner of sales and compositions of lands. (Law 9, tit. 12,
lib. 4; 2 Whitc, 51; law 36, tit. 18, lib. 2; law 13, tit. 31, lib. 2; 2 White,
34.) Whether or not the opinion of the attorney was that these la(nds siloldl
be admitted to composition, the decree of the officer authorizing and directing
the grant is made by sale 'according to the 9th schedule of the instructions or
decree of 1754, which is much later than the above decrees promulgated in the
19
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/27/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .