Syllabus.

delivered a formal "testimonio" thereof. On the 26th March, 1834, the Congress of Coahuila and Texas at Monclova repealed the act of April 28, 1832. The laws of the Mexican states did not then take effect in any part of the country until promulgated there. There was no evidence of the promulgation of the repealing act at Dolores, but there was presumptive evidence tending to show that on the 3d May, 1834, it had not been promulgated there. Held: that under all the circumstances, and in view of the distances of Dolores from Monclova, the presumption was that the repealing act had not been promulgated when the commissioner extended the title to Gonzales.

The act of the Congress of Coahuila and Texas of March 26, 1834, creating a new system of disposing of the public lauds, did not abrogate the grants and sales which had been made under the act of April 28, 1832, nor abolish the office and function of commissioners necessary for extending such grants.

From the notorious public history of the colony of Beales and Grant, and from other notorious facts which are stated in the opinion of the court, it is Held, that the governor in the grant to Gonzales, which is the subject matter of this suit, intended to designate and did designate the commissioner of the neighboring enterprise as the officer to locate the grant and deliver possession to the grantee, and that his official acts therein, having been accepted and acquiesced in by the government, must be considered as valid, even if done by him only as commissioner de facto. The public officer who extended the lands in dispute must be presumed to have extended them in the proper department, and this presumptive conclusion of law is made certain in fact by examining the laws referred to in the opinion of the court.

In 1834 the state of Coahuila and the department of Monclova extended eastwardly at least as far as the river Nueces.

As all favorable presumptions will be made against the forfeiture of a grant, and as it will be presumed, unless the contrary be shown, that a public officer acted in accordance with law and his instructions, and as the government acquiesed in the commissioner's acts in extending the grant in dispute and no attempt had been made to revoke them or to assert a forfeiture; Held, that he had authority to extend the title, and his acts must be considered valid.

The testimonio in this case sufficiently connects itself with the original grant and subsequent steps taken under it: it is not necessary that it should be attached to it by a physical connection.

The grant in this case gave power and authority to the commissioner to extend it, and no further order was necessary.

The extension of the title of the grantee by the commissioner in a Mexican grant completed the title, without patent or other act of the government, and notwithstanding the imposition of conditions subsequent; and the non-performance of such conditions subsequent constituted no objection to the admission of plaintiff's evidence to show such extension.

If a forfeiture of a Mexican land grant from non-payment or condition sub

Opinion of the Court.

sequent can be availed of by a private person at all, it can only be after he has shown some right to the land in himself by virtue of a subsequent purchase or grant from the sovereignty of the soil.

Prior to the adoption of the constitution of 1876 the laws of Texas did not require that a title under a Mexican grant should be registered in the county or deposited among the archives of the land office, in order to give it vitality; and it was only void as against third persons acquiring title from the sovereignty of the soil, not having notice of it. Defences against Spanish and Mexican titles in Texas under Art. XIII of the constitution of Texas of 1876 constitute no objection to the admission of evidence in support of such titles. Quære, as to the effect of the provisions in that article prohibiting the future registration of titles, or the depositing of them in the land office.

TRESPASS. Plea, not guilty. Judgment for defendants. Plaintiffs sued out this writ of error. The case is stated in the opinion of the court.

Mr. H. E. Barnard for plaintiffs in error.

Mr. C. W. Ogden and Mr. Bethel Coopwood for defendants

in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action of trespass to try title, brought by the heirs of Juan Gonzales against The International and Great Northern Railroad Company and their tenant in possession (Ross), to recover eleven leagues of land situate in Kinney County, Texas, adjoining the Rio Grande. The defendants pleaded not guilty, and title from the sovereignty of the soil. At the trial a jury was waived, and the court found the facts specially (which are set out in a bill of exceptions), and rendered judgment for the defendants. The judgment is based upon the failure of the plaintiffs to make out their title; and their failure to make title arose from the court's overruling and rejecting the testimony offered by the plaintiffs as evidence of the extension of title to their ancestor, Juan Gonzales.

The court found and decided that the plaintiff had shown an application for, and concession of, eleven leagues of land in the name of Juan Gonzales, in the state of Coahuila and Texas,

Opinion of the Court.

and gave the purport of the documents showing the same, being an exemplification of the original in the archives of the government of Coahuila, at Saltillo. These documents were in Spanish, accompanied by a verified translation. They were exemplified under date of August 20, 1874, and had been duly recorded in the clerk's office in the records of Kinney County on the 8th of February, 1878, as appeared by the clerk's certificate thereon.

The application of Gonzales, as translated, was as follows, to wit:

"To his Excellency: The citizen Juan Gonzales, before your Excellency, with greatest respect, states:

"That in accordance with the provisions of the law of colonization of the state your Excellency will please grant me the sale of eleven sitios of land of those vacant lands of the department of Monclova and places by me designated, promising to introduce in them the number of stock required by the same law and paying the value, delivering at once the fourth part of the same and binding myself to fulfil all requirements of the same law. Praying your Excellency will grant this petition as requested, will receive grace and justice.

"JUAN GONZALES."

The grant, bearing date, Leona Vicario, October 16, 1832, was attached to the application, and was in the name of the Governor in the usual form, and, as translated, was as follows:

"In accordance to article 13 of the new law of colonization enacted by the honorable Congress of the state April 28, 1832, I grant the sale to petitioner of the eleven sitios of land prayed for at the place designated by him, provided that they shall be all in one tract and not under any title belonging to any corporation or person whatsoever.

"The commissioner for the division of lands in the enterprise to which corresponds the one which petitioner solicits, and in his default, or in case there is none, or not being engaged in any other enterprise, the alcalde 1st, or the only one acting of the respective municipality or the nearest one, complying with [the] order given in the matter, will place him in

Opinion of the Court.

possession of the said sitios, and will extend the corresponding title to the same, first classifying the quality of said lands, so as to be able to state the amount to be paid the state, which payment must first be paid by the interested party in the manner and terms specified in the last part of said article 13, making the payment at once as provided by this article, in the treasury of the state, receipt of which he will present to the secretary, so that the secretary, upon sight of it, will proceed to give [the] interested party copy of his petition, with which he will go to the commissioner and have its requirements complied with.

"ECA Y MUSQUIZ. (One rubric.)

"SANTIAGO DEL VALLE, Secretary. (One rubric.) "

The court next found as follows:

"Second. That Fortunato Soto was duly appointed by the proper authority of the state of Coahuila and Texas, as commissioner to extend titles in the colony contracted for by Juan Carlos Beales and Diego Grant. That his commission of authority was dated March 13th, 1834, and was signed by Francisco Vidann y Vallasteñor, the then governor of the state of Coahuila and Texas and by J. Mijuel Falcon, the then secretary of state of Coahuila and Texas.

"Third. The plaintiffs are the legal heirs of Juan Gonzales, the beneficiary and grantee of the concession referred to in decision number one, above set forth.

"Fourth. That defendants are in possession of the land described in plaintiff's petition.

"Fifth. That the boundaries of the colony contracted for by Juan Carlos Beales and Diego Grant are shown by the following contract of colonization entered into with the citizen Diego Grant and Don Juan Carlos Beales as empresarios to introduce 800 families in the vacant lands of the state."

The contract referred to, between the government of Coahuila and Texas and Juan Carlos Beales and Diego Grant, is then set out in full, the application bearing date October 5, 1832, and the concession October 9, 1832. It included, first,

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Opinion of the Court.

a grant for the whole territory lying between the Rio Grande and Nueces rivers, and bounded south by the state of Tamaulipas, and north by the 29th parallel of latitude; secondly, a grant of a tract formerly granted to Woodbury and Vehlein, and subject to their right to colonize 200 families, embracing a territory over 200 miles in length, bounded north by the 32d parallel of latitude, south by the old road leading from Rio Grande to Bexar, west by the 100th degree of west longitude, and east by other grants in the interior of Texas. The first tract adjoins the southwest corner of the second; and Kinney County, in which the lands in question are situated, lies in the angle between the two tracts, but outside of both. The 9th article of the concession to Beales and Grant has the following provision: "This colony shall be regulated and their lands divided by a commissioner of the government, who in proper time will be appointed, and will discharge his duties in accordance with the laws and instructions that for said officials have been approved by the honorable Congress.'

The bill of exceptions then exhibits two maps given in evidence by the plaintiffs, certified by the Secretary of State of the United States, one being a copy taken from Disturnell's map of the united Mexican states, published in 1847, and deposited with the treaty of Guadalupe Hidalgo, 1848; the other showing the boundary line between the United States and Mexico, as laid down in Melish's map, published in 1818, and agreed to in the treaty of January 12, 1828. These maps show that the province of Texas did not then embrace any territory west of the river Nueces.

In view of this evidence and the findings of the court thereon, the plaintiffs then offered in evidence a paper purporting to be a testimonio, with formal and sufficient proof of its execution, by which testimonio it appeared that in April, 1834, the possessory title of the land in controversy was extended to Juan Gonzales, the ancestor of the plaintiffs, by Fortunato Soto, commissioner for the state in the colony of Rio Grande. This paper was in the Spanish language, and together with the authentications and translation thereof, had been recorded in the clerk's office of Kinney County on the 21st of June,