The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-28

nave perfectly nJIcu lne NdlueI con
cession. The defendant also intro
duced copy of another eleven league
grant issued to the same Rafael do
Aguirre. which. as shown by
the maps, was located OF
the BraZoS river. 1t purporteC
to be based ON the same application
and concession upon which the grant
in controversy was issued. The ap
plication for this grant was also made
by Samuel NJ. Williams as attorney
for Rafael de Aguirre, and he for
himself and Austin as empreSarios
consented to the location within their
colony. The final title was issued
October 4, 1888, Williams acting for
Aguirre in applying for and receiv-
ing it. The dates of Williams several
acts in connection with this title are
identical with those performed by
him in connection with the title for
the grant ON the Gabriel and Cow
Bayou which is in controversy in this
suit. The defendant introduced also
certified copy of a grant Of eleven
leagues to Miguel Rabaga, for whom
also Williams was attorney, the field
notes of which call for the last men,
toned survey for Rafael de Aguirre
on the BraZoS, and which the maps
show to be connected, both being To-
Gated on the BraZos river. The defen-
dant also introduced in evidence the
last page of a certified translated copy
of the Rafael de Aguirre grant, the
certificate being dated in 1855, and a
certified copy of the last page of the
same title in Spanish made in 1888, in
neither of which is the emendation
clause noted at the foot of the title
as it now appears. In both copies,
however, the body of the instrument
is identical with the face of the grant
as it now appears, no alteration or
interlineation appearing, and it is not
improbable that the emendation
clause existed at those dates, and was
omitted by the copyist because in Civ
ing IL clear copy of the instrument
the emendation clause would be
meaningless there being nothing in
the copy to which it could apply.
Other circumstances more or less re-
motely bearing on the question at is
sue shown in evidence or claimed to
be matter of public history and judi
cial cognizance were invoked by the
defendant in support of his theory
that the grant purpOrting to
have been extended to Rafael de
Aguirre on the 22nd of October
1883 was in fact forged by altering
the final title issued to or intended
for Perlecto Valdez, SO as to make it
read as a grant to Rafael de Aguirre
for the ten leagues on the Gabriel
and the one league on Cow Bayou
including the premises in contro-
versy. The plaintiff in rebuttal
showed what indeed was not denied
by the defendant that the signatures
of the alcalde and Of the assisting
witnesses to the grant were genuine;
the defendants theory being that the
alterations constituting the forgery
were made subsequent to che execu-
ton of the instrument. In this CON
nectiOn is TO he considered the eX-
treme strictneSs of the civil law in
guarding asainst fraudulent altera
tionS of public Instruments famil-
iarity with which must be presumed
on the part of the officer who extend
ed the title in question and of those
who were interested in it. The
following passage translated from
Escriche's dictionary of legisla-
ton title to instruments
will convey an idea of the
rules of the civil law relating to this
subject. From page $50, second col
umn: SIN order that IA public instru-
ment be considered authentic and
lawful, the following circumstances
are required: 4 Page S8S, Sc
cond column. IS. That the docu-
ment be clearly written, without
blanks, eraSuIreS, deliberations, inter
lineationS or corrections, especially
in the substantial parts; for example,
in the names and surnames of par
ties, of the notary public, and the
witnesses, in the terms and the
amount, and the thing in relation TO
which the writing is done, in the
compact and conditions, and in the
day, month and year of the date, and
in the place where the instrument
was executed; and that in case that
any correction, Obliteration or addi-
ton be made at the time of reading
the instrument to the parties, the
same be authenticated at the foot of
it by the notary, previous to the sign
ing, in order to prevent suspicion of
fraud. Qey LII, title Is, part 3; Ley
XII, title Is, part 3; Ley |, title %,
title 10, Nov. Rec, and code de Gem,
Art. 2400
"The twola of the Partidas above
quoted, characterize as suspicious and
unworthy Of credit any instrument
of writing which has been scratched,
corrected, UNDERSIGNED, written over,
or torn or cut in any OF the substan-
tial parts above referred to, unless the
party introducing it, shall prove that
1T was done by force or accident; and
on the contrary they require its adj
mission as valid, if it bears no such
vices or defects in any of its essential
parts, and when there is no suspicion
of a fraudulent intent.
1.-The second part of the provisions Of
these laws is perfectly Just in reIa-
ton to any instrument, whether
matriX or an original copy, for the re-
lection OF paper for an unlmportant
vice or defect, would be intolerable.
Likewise the first part of the provis-
sion concerning the copy called Origi-
nal, introduced or exhibited by a
party in support OF his claim, appears
TO be just; since the instrument in his
power, having operated, or having to
alton in it, and not authenticated, by
the notary public, should be attrib-
uted to him, and nobody else, unless
the contrary be proven. In fact, the
laws above mentioned. seem to have
referred to that class of instruments.
"But shall we also apply the first
part of the provisions to the "matriX"
preserved by the notary public among
his protocols If the instrument
(the matrix) appears with the obliter-
ationS, additions, corrections, or other
alterations, not authorized as the law
requires, shall it be null and void to
the prejudice of either, and perhaps
both parties?. We may sup
pose either, that the two in
struments were closed and signed
after the alterations were made, or,
on the contrary, that the alterations
were made alter the instrument
had been perfected and signed. 1t
would be natural to suppose that the
instrument was closed and signed
without the alteration, for the pre-
sumption is that while writing the no
tary public would conform himself to
the requirements of the law, and the
law required him to mention and au-
thenticate them before signing, if, in
fact, they existed at that time. There
fore an instrument shall not be null
on account of the failure to approve
or.authenticate the alteration that
may be found in it, because it should
not be in the power of the notary
public or anybody else thus to des-
troy the effects of an authentic docu-
ment to the prejudice of the parties
interested. hllt IN tho aOntrarv thc