Texas SC denies another claim by heirs of Padre Island

By Marilyn Tennissen | Nov 24, 2008

A recent decision by the Texas Supreme Court shuts down another dispute over the ownership of Padre Island by heirs of Padre Nicholas Balli.

The high court denied the plaintiffs' claim that a deed signed more than 150 years ago was a fraud.

The heirs of Jesus Balli, the nephew of Padre Nicolas Balli, who originally settled the island off the South Texas coast, filed a lawsuit against Gilbert Kerlin who bought the property in 1847.

The heirs sought to set aside the 1847 deed, and thus all sales in the next 161 years, on the basis of fraud.

"As the only evidence of fraud in 1847 is an affidavit by one of the current heirs - who could not possibly have personal knowledge of those events - we reverse," the Nov. 14 per curiam opinion states.

Disputes over the land titles began soon after the death of Padre Nicolas Balli, the Roman Catholic priest who brought in settlers, built a church and raised cattle and horses on the 130-mile long island in the Gulf of Mexico. When Padre Balli died in 1829, his interests passed to his seven nieces and nephews.

As the Southeast Texas Record reported in September, the Texas Supreme Court reversed a 2005 verdict that declared more than 275 descendants of Juan Jose Balli, one of the padre's nephews, had been defrauded out of oil and gas royalties from the island by Kerlin, a New York attorney.

This case recently before the court stemmed from a claim by the heirs of Jesus Balli, a nephew of Juan Jose.

The 72 alleged heirs asserted in their petition that the 1847 deed was fraudulent because it was signed by Jesus Balli's father, even though Jesus was not a minor under either Texas or Mexican law at the time. They sued Kerlin, who apparently had no contact with them or their ancestors, but owned substantial acreage in South Padre Island from 1942 until 1961.

Judge Leonel Alejandro, 357th District Court in Cameron County, granted summary judgment against the heirs. The plaintiffs appealed to the 13th District Court of Appeals in Corpus Christi in 2003. The court of appeals reversed Judge Alejandro's decision in January 2006.

Kerlin petitioned the Texas Supreme Court in April 2006, and moved for summary judgment on several grounds, including that the deed was valid.

In support, Kerlin tendered the deed - not the original in Spanish signed in Matamoros, Mexico, in 1847, but a certified English translation filed in the Nueces County deed records later that same year.

According to court documents, the translated deed affirmatively states that:

  • Jesus Balli was a minor at the time the deed was signed;
  • His lawful guardian was his father, who had the power to administer and convey his son's
  • It was in his son's best interest to sell the land because the war between the United States and
    Mexico made it uncertain whether his title would be recognized; and
  • His father accordingly sold the Padre Island property to Nicolas Grisanti on his son's behalf. (Grisanti's ownership was eventually conveyed to Kerlin.)

    The heirs did not contest the document's authenticity at the time. Their only evidence in response to Kerlin's motion for summary judgment was a 2003 affidavit by Eva Castillo, in which she avers that Jesus Balli was not a minor in 1847 because he was 22 years old and was married. Kerlin objected to the affidavit on several grounds, including lack of personal knowledge and hearsay.

    Castillo's affidavit states that her statements were "true and correct to the best of my personal knowledge and belief."

    But the high court says an affidavit should be based on personal knowledge and not the person's belief about the facts.

    The court of appeals had faulted Kerlin for not attaching the original deed filed in Matamoras, but only the English translation. The Supreme Court, however, found that the "best evidence" rule does not apply to originals located outside Texas.

    In the opinion of the Supreme Court, Kerlin presented prima facie evidence that the 1847 deed was valid.

    "The summary judgment record here raises no fact question that the 1847 deed was fraudulent," the opinion states. "Accordingly, we grant Kerlin's petition for review, and without hearing oral argument, we reverse the court of appeals' judgment and render judgment that the heirs take nothing."

    Gilbert Kerlin, individually, Gilbert Kerlin, trustee, Windward Oil & Gas Corp. and PI Corp., petitioners vs. Gloria Soto Arias et al, respondents

    Texas Supreme Court Case No. 06-0097

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