454; and as to effect if recorded without sufficient proof, see Holliday v. Cromwell, 26 Tex. 189; Lambert v. Weir, 27 Tex. 359.

The original of this document, although presumably in the custody of the parties claiming title under it, is neither produced nor accounted for. As made and proved, this record unquestionably shows that the complicated document claimed by complainant to be a testimonio of his title was in existence on the 16th day of August, 1849,-17 years after the date of the alleged grant; but as to the persons who made and executed it we are left to the evidence of Hall and Ureta, and as to when it was made we are remitted to the document itself. The affidavit of Ureta is to the effect that he was well acquainted with the signatures, among others, of Cesario Herrera and Rafael Hernandez, two of the persons whose names purported to be signed to three of the separate acts contained in the document; and he swore that he knew the same to be genuine and good, without giving in any manner his means for so knowing, and without specifying which particular signatures of Herrera and Hernandez were genuine and good. If any credit is to be given to his affidavit, it is to be taken that he meant that all of the signatures of Cesario Herrera and Rafael Hernandez were genuine and good. The affidavit of Ureta, however, does not appear to have been sufficient in terms to satisfy the clerk of the county court of Bexar county of the genuineness of the document.

The affidavit of Hall is more full as to his knowledge, and he says that he "has transacted business with Cesario Herrera, Rafael Hernandez, and Hypolito Acosta; that he has often seen them sign their names; and that the signatures of Cesario Herrera, Rafael Hernandez, and Hypolito Acosta, as they appear at the foot of the annexed instrument in writing, he knows to be genuine and good." The names of Cesario Herrera, Hypolito Acosta, and Rafael Hernandez appear, among others, at the end of the alleged grant, and at the end of the alleged transfer or act of sale from Jose Ygnacio Ronquillo to Hypolito Acosta. Which signatures of said Herrera, Hernandez, and Acosta affiant Hall knew to be genuine and good does not appear.

In the case of Luco v. U. S., 23 How. 515, it was held that no Mexican grant in the state of California should be considered genuine unless documentary evidence thereof should be found in the archives; and in Peralta v. U. S., 3 Wall. 434, it is held that record evidence of a grant must be shown and be produced or accounted for, and mere parol evidence will not suffice to establish it. The document recorded in Bexar county came from the possession of, and was undoubtedly recorded in the interest of, Ben Leaton and Juana Pedrasa, with whom said Leaton is shown to have been living at the time the same was presented for record. Both Ureta and Hall were employes and dependents of Leaton; and Hall, after Leaton's death, married Juana Pedrasa. It also appears that the only trace of the grant in the general land office of the state of Texas is an old map found there, marked "Ben Leaton's Claim." The evidence also shows that Ben Leaton and Cesario Herrera were acquainted, if

not intimate; that Leaton borrowed $500 to buy land, and that Herrera was arrested by the Mexican authorities for issuing false titles to land; and there is some evidence which, if believed, shows that Herrera was contemplating the forging of this very document. It is admitted that in the Leaton interest,-that is, the Juana Pedrasa interest,-under which, so far as it is good, complainant claims (and it would seem to cover the entire title, if the document under consideration is taken as genuine), a forged and false decree, purporting to be a confirmation of the grant and transfer by the congress of Chihuahua, was surreptitiously introduced and placed in the public archives of Juarez, in the state of Mexico, which forged and false decree of confirmation was the basis of the title claimed by complainant in his original bill in this case.

The supreme court of the United States, in passing on a grant alleged to have been made by the Mexican governor of California, said:

"The signatures of M. G. Vallejo to the permit of occupation, and of Micheltorena and F. C. Arce, the governor and acting secretary, are genuine, if three witnesses are to be believed,-Castenada, W. D. M. Howard, and Salvador Vallejo, one of the original grantees. * * We have said that the signatures of the officers to the documentary evidence of the title are genuine if we can believe the witnesses Castenada, Howard, and Vallejo; but, as all of these officials were living after the United States had taken possession of the country during the war, and even after the cession by Mexico, and, with the exception of the governor, resided in California, these signatures may be genuine, and still the title invalid. It was practicable to have made the grant in form genuine, but antedated." U. S. v. Teschmaker, 22 How. 402-404. See, also, Fuentes v. U. S., Id. 454.

Enough has been said to show that we have been unable to find affirmatively from the evidence in this case that on the 25th day of January, 1832, Cesario Herrera, alcalde of Presidio del Norte, executed the alleged grant to Jose Ygnacio Ronquillo. As to the execu tion of such a grant, the complainant has failed to establish his case, unless he has established that the congress of Chihuahua, in 1834, by decree for the purpose, ratified and confirmed the said grant, which matter will be considered in its order.

If we assume for the purposes of the case that Cesario Herrera, alcalde of Presidio del Norte, on the 25th day of January, 1832, actually made and executed to Jose Ygnacio Ronquillo the grant in question, the next inquiry is whether said Cesario Herrera, alcalde, had the power to make such a grant. An alcalde is "a justice of the peace or judge who administers justice in a town, the presiding officer of a town council." 1 Sayles' Early Laws of Texas, p. 13. At first impression a person at this day is struck with astonishment at a claim of power on the part of an alcalde of a provincial town to make an absolute grant of the public lands to the extent of 15 leagues square, 20 times the area that could be included in a grant under the national and state colonization laws in force at the time, a tract comprising as much territory as is included in the states of Rhode Island and Delaware; in fact, a tract of land equal in area to a strip one mile wide, reaching from the city of New Orleans to the city of San Francisco. Land at that time may have been plenty, and next to

worthless, and people may have been very scarce, but then why the national and state colonization laws limiting grants?

The complainant contends, with regard to this power on the part of the alcalde, that it is to be presumed from the fact that he exercised it; that the burden of proof to show that he had no such power is on the defendants; and that, in fact, the alcalde had such power under the positive provisions of the laws of Chihuahua, referring particularly to a decree (No. 65) alleged to have been passed by the congress of Chihuahua on August 5, 1825, quoted in complainant's brief as follows:

"Decree No. 65.

"Relating to the Abolishment of Sub-Delegates.

"The Honorable Constitutional Congress, etc., etc. First. The judges with the appointment of sub-delegates are hereby abolished, as in the system that governs us such appointments are unknown. Second. Their faculties shall be resumed by the constitutional alcaldes ('alcaldes de primera denominacion'), and in those towns where there is only one alcalde, they will also have judicial jurisdiction, as prescribed in former depositions, until the constitution establishes a fixed rule regarding the office.

"Be it understood by the Governor of the State," etc.

Complainant also cites Hall's Mexican Law, p. 7, as follows:

"Alcaldes, mayores and corregidores had, prior to the date of the Ordinance of Intendencias, December 4, 1786, and for nearly three centuries exercised the functions of magistrates of their respective partidos (districts), with political powers also. They acted as governors. In the matter of the sale and composition of land and water they were usually made sub-delegates."

In support of the presumption arising from the fact of an officer's making the grant that he has authority of law to do so, complainant cites authorities from the reports of the supreme court of the United States and of the supreme court of Texas, which, in the main, sustain his contention. U. S. v. Peralta, 19 How. 343; Gonzales v. Ross, 120 U. S. 605, 7 Sup. Ct. 705; Bryan v. Shirley, 53 Tex. 440; Blythe v. Houston, 46 Tex. 76; Jenkins v. Chambers, 9 Tex. 167; Jones v. Garza, 11 Tex. 186; Hancock v. McKinney, 7 Tex. 384. Probably the correct rule with regard to the presumption of authority in favor of an officer making a grant is that such authority is presumed where the documentary evidence of the grant comes from the proper archives, or where the genuineness is not in question. See U. S. v. Peralta, supra.

The defendants, in reply, admit that under the royal decrees of Spain, where persons in authority issued grants, the power was presumed from the existence of the grant itself, but with regard to Mexican grants a different rule obtained after the passage of the national colonization laws of August, 1824, and the regulations of 1828, and in the state of Chihuahua, of the colonization law of the 25th day of May, 1825, which was in strict conformity with the general laws of colonization of the republic of Mexico. That in the early cases in the supreme court of the United States (referring to U. S. v. Clarke, 8 Pet. 436) it is held that the power is to be presumed from the exist ence of the grant itself, but in all the later cases since the passage of the laws above mentioned it has been uniformly decided that no presumption can be indulged as to the existence of the power to make

the grant, but it must be conferred by the law, and be exercised in conformity with its terms. Referring to U. S. v. Cambuston, 20 How. 59; U. S. v. Vallejo, 1 Black, 541.

There can be no doubt that the rule claimed by defendants is recognized by the supreme court in all cases of grants claimed in California. U. S. v. Sutter, 21 How. 170; U. S. v. Hartnell, 22 How. 286; U. S. v. Vallejo, 1 Black, 541; U. S. v. Cambuston, 20 How. 59; U. S. v. Workman, 1 Wall. 745; Fuentes v. U. S., 22 How. 443.

It is said, however, that while California was a territory, and subject to the national colonization laws, the state of Chihuahua was a free and independent state, and owned and controlled its own public lands; the national laws not being applicable. It is to be noticed, however, that in 1825 the state of Chihuahua itself passed a law in strict conformity with the national colonization law. We therefore are unable to see why, subsequent to the 26th day of May, 1825, a different rule should prevail in the state of Chihuahua from that conceded to prevail in the territory of California with regard to the method and manner of disposing of public lands. On this question the learned judge of the circuit court said:

"In my judgment, if I follow the decisions of the supreme court of the United States, and if those decisions mean what they say, the alcalde had no power to make such concession at that date. In 1824, when Mexico threw off the Spanish yoke, and erected her own government, an entirely different system of distributing public lands was inaugurated, and under that system, and under the colonization law of 1825 of the state of Chihuahua, the alcalde had absolutely no authority to execute such a grant; not only a grant of 1,500,000 acres, but he was without authority to execute an 11-league grant. Therefore, upon its face, the grant is a nullity."

We agree with the circuit judge in this conclusion.

The next and main question in the case is whether the Ronquillo grant, alleged to have been made by Cesario Herrera January 25, 1832, was ratified and confirmed by the congress of the state of Chihuahua, September 24, 1834. Such a decree of ratification and confirmation would tend to show that Cesario Herrera, alcalde, made and executed the grant at the time alleged, and would elimi nate from the case all question as to his power as alcalde to make and execute such a grant. It appears that in the complainant's original bill he set up and asserted a decree of confirmation to the Ronquillo grant, passed by the congress of Chihuahua on the 24th day of September, 1834, in substance as follows:

"The constitutional congress of the state of Chihuahua has deemed it proper to ratify and confirm the action of Sr. Cesario Herrera, alcalde of Presidio del Norte, on the 27th day of November, 1832, granting to Sr. Don Jose Ygnacio Ronquillo, lieutenant colonel of the active army, for distinguished military services, certain lands, pastures, and minerals situated on the left bank of the Rio Bravo del Norte, in front of Presidio del Norte."

This decree was assailed by the defendants as a forgery, and is now by both parties so admitted. In relation to this forged decree, the complainant, in his amended bill, after asserting that the grant was in all things duly ratified and confirmed by the congress of Chihuahua, says:

"Your orator further says that in their answer to the bill heretofore filed in this cause the defendants aver, on information and belief. that there was

no confirmation of the grant by the congress of Chihuahua, as herein heretofore alleged, but that a pretended circular letter, pretending to be a decree of such congress, confirming and ratifying the action of the senor alcalde at Presidio del Norte on the 27th day of November, 1832, in this bill heretofore described, as in the archives at Juarez, Mexico, and that the same is a forgery, and has been surreptitiously inserted and placed among said archives at Juarez. Your orator says that he has seen and inspected the paper so referred to by defendants in their said answer, and that he is convinced and says the same is a forgery, and not a true archive at said Juarez. Your orator further says that long before the purchase or negotiation for any interest in said property by this complainant or his immediate grantors, and long before your orator or his immediate original grantors knew anything of this property or its title, some one interested as by or through the heirs at law of one Ben Leaton and Juana Pedrasa y Leaton, his wife, surreptitiously abstracted from the archives of Juarez, Mexico, the true and genuine confirmation, previously one of the archives at that place, and, for the purpose of adding a supposed strength to the title at that time claimed by such heirs, forged a pretended decree somewhat differing from the real and genuine decree aforesaid in its wording, and surreptitiously put such forged and pretended decree into the stead and place of the former and genuine decree among such archives. That such paper is not now one of the archives at Juarez, but has been taken therefrom, and referred to one of the judges under the Mexican system of laws, to inquire into its genuineness, and your orator is not informed as to the result of such judicial inquiry; but that your orator makes no pretense that such pretended decree is genuine, and claims no manner of benefit or advantage of the same, but declares it is his opinion that it is a forgery, but that the confirmation referred to in your orator's bill is not a confirmation of the action of the alcalde done on the 27th day of November, 1832, but of the grant itself, made on the 25th day of January, 1832, and is not, therefore, the forged paper referred to in the defendants' said answer."

To this matter defendants answer:

"These defendants aver that they are not advised as to the person or persons who forged the circular letter pretending to be a decree of the congress of Chihuahua, confirming and ratifying the action of the senor alcalde at Presidio del Norte on the 27th day of November, 1832, in this answer heretofore described, and thereafter deposited in the archives at Juarez, Mexico; and therefore neither admit nor deny that the same was done by some person interested as by or through the heirs at law of one Ben Leaton and Juana Pedrasa y Leaton, his wife; but these defendants deny that any true and genuine confirmation, previously one of such archives at that place, was taken therefrom, and said pretended circular letter deposited in its place, as complainant in his said amended supplemental bill has alleged. And these defendants deny that any such paper confirming or ratifying said grant, purporting to have been made on the 25th day of January, 1832, or at any other time, was ever deposited or archived at Juarez, Mexico, or, if any such circular letter or decree confirming or ratifying said grant was ever archived at said place or elsewhere, then these defendants are informed and believe and so charge the same to be a forgery; and these defendants, for a greater certainty, crave leave to refer to said pretended executive decree confirming said grant, as alleged in said complainant's amended supplemental bill, when the same shall be produced. And these defendants further aver that the said pretended circular letter, or executive decree, ratifying or confirming said grant to Jose Ygnacio Ronquillo, was never authenticated, or proved for record, and was never duly recorded in any county in Texas, wherein said land is or was situated."

To prove the decree of confirmation by the congress of Chihuahua, alleged in the amended bill, the complainant produces the printed document, without written signature or marks, without seal or rubrics, or any other marks of attestation, found in duplicate in the archives of Santa Barbara, a mining town, about 250 miles from