Moore, C. J.
The jury were instructed, by the charge of the court, to find a verdict for appellees, the plaintiffs below, if they had shown a regular chain of title for the land in controversy from the state down to themselves, unless the appellants had shown by the evidence a superior [252]*252outstanding title, under which they claimed. The charge doubtless was hastily drawn, and given in the form found in the record through inadvertence. It is evidently erroneous. If there was a superior outstanding title for the land in suit, or any part of it, the appellants were undeniably entitled to set up such title as a defense to the action, although they made no claim to the land under such outstanding title.
To maintain the issue on their part, the appellants introduced in evidence the testimonio of a grant of eleven leagues of land to Juan Kepomucino Acosta, in respect to which the parties made the following agreement, to wit: “It is agreed, for the purposes of a trial, that the original testimonio was issued by Vincente Aldrete, the commissioner, &c., for the Mexican government, and that the same be read as evidence without further proof, but that the original testimonio was never filed in the general land office.” The testimonio does not appear to have been recorded in the county where the land is situated; nor was there any evideuce that the lines of the Acosta grant were plainly marked, or that it had been platted on the map in the district or county surveyor’s office, or that the grant was of general notoriety in the section of country where the survey was made under which appellees claim, or that the party under whom they claim had any knowledge of such grant previous to the location and survey of his certificate. And there was no evidence adduced by either party showing what disposition had been made of the protocol or matrix of Acosta’s grant, or from which it could be inferred that it was not on deposit in the general land office; for undoubtedly the agreement which we have copied, whatever may have been the intention of the parties, does not do so. On this state of the case the jury were instructed by the court in conformity with the ruling in the case of Guilbeau v. Mays, 15 Tex., 410, as explained and modified in the subsequent cases of Byrne v. Fagan, 16 Tex., 391; Musquis v. Blake, [253]*25324 Tex., 461; Nicholson v. Horton, 23 Tex., 47; Word v. McKinney, 25 Tex., 258; and Wilson v. Williams, 25 Tex., 54.
And had there been any testimony before the jury tending to prove that the protocol of Acosta’s grant was not in the general land office when appellee’s survey was made, in the light of these decisions no objection could be made to this charge. But it may be well questioned whether, in the facts before the jury, it was not calculated to mislead, rather than aid them in attaining a correct conclusion in their verdict. At all events, it must be held that the verdict rendered is unsupported by the evidence, and the motion for a new trial should therefore have been sustained.
In the case of Byrne v. Fagan, IIemphiIl, 0. J., says: “But there was no proof that the original or protocol of the testimonio, offered in evidence by defendants, was not deposited in the general land office, and there is a presumption that, when there is a testimonio, the original is among the archives of the general land office, being its proper place of deposit. How, although an owner of lands should, in the, exercise of vigilance, record his grants or patents, and would, perhaps, examine as to their proper delineation on the county maps, yet he is not, for his own security or for the preservation of his rights, compelled to the performance of these acts, provided his grant be deposited in the general land office. If it be found there, it is notice at least to the government, and those who claim under the government. Whether it be delineated on the county map or not, is a matter which cannot affect the grantee. To make this delineation is the duty of the officers charged with such functions, and their failure or neglect in discharging this duty cannot impair the rights of patentees.”
That I may not, by the reference I have made to the case of Gruilbeau v. Mays, and the subsequent cases modifying [254]*254it, be placed in a false attitude if I should hereafter be called upon to consider the questions discussed in them, I feel■ constrained to say, with the most profound respect for the great jurists who have given their sanction to the doctrine contained in these cases, that I have never been able to find anything in the statutes, prior to the last session of the legislature, or in our law of real property, to convince my judgment of their soundness, and should I feel constrained to follow them, if the question involved should come before me unaffected by the provisions of the act of the last session of the legislature on this subject, I should do so upon the ground of stare decisis, instead of a belief of their intrinsic correctness.
In the case of Guilbeau v. Mays, with which this doctrine had its origin, it is said that the failure of the grantee of the elder title from the government to record his title, or delineate the laud on the maps, or give other notice, will pospone it to the .junior title, and place the owner of the latter in the position before the courts of an innocent purchaser, and in principle not distinguishable from the great class of cases of innocent purchasers without notice of any prior or superior title. An examination of the able opinion in this case shows very plainly that the decision is rested mainly in the assumption that grants from the government, especially such as are referred to in the opinion, come within the provisions of the registration laws, and hence, if they were not recorded, the owner would be postponed in favor of a junior title. If this were the correct construction of the registration laws, and they are to be held to affect pre-existing titles, the conclusion would be unquestionable.
Bub it is emphatically held, in the cases of Byrne v. Fagan, Nicholson v. Horton, and Musquis v. Blake, that the failure of the grantee to record his title does not give the superior right to the junior grantee. It must now be conceded, therefore, that although such titles may be regis[255]*255tered, it is not obligatory upon the owners that they shall be. It is the statutes requiring deeds and other instruments to be registered which have created “ the great class of cases of innocent purchasers without notice of any prior or superior title.” Can, then, the grantee of the elder title subject himself to the penalty imposed by these laws by omissions to which they have no reference ? Most certainly he will not. If the owner of the land is to be postponed, it is not from an omission which subjects him, by the plain language of the statute, to such penalty, but it must be on general equitable principles, which forbid him from taking advantage of his - own wrong, or enforcing a claim or demand against one whom he has assisted to mislead. If this is so, each case would have to stand upon its peculiar facts, and it could scarcely be held, as a general rule, that the mere absence of the grant from the general land office should 'operate so disastrously upon the owner of such grant.
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Moore, C. J.
The jury were instructed, by the charge of the court, to find a verdict for appellees, the plaintiffs below, if they had shown a regular chain of title for the land in controversy from the state down to themselves, unless the appellants had shown by the evidence a superior [252]*252outstanding title, under which they claimed. The charge doubtless was hastily drawn, and given in the form found in the record through inadvertence. It is evidently erroneous. If there was a superior outstanding title for the land in suit, or any part of it, the appellants were undeniably entitled to set up such title as a defense to the action, although they made no claim to the land under such outstanding title.
To maintain the issue on their part, the appellants introduced in evidence the testimonio of a grant of eleven leagues of land to Juan Kepomucino Acosta, in respect to which the parties made the following agreement, to wit: “It is agreed, for the purposes of a trial, that the original testimonio was issued by Vincente Aldrete, the commissioner, &c., for the Mexican government, and that the same be read as evidence without further proof, but that the original testimonio was never filed in the general land office.” The testimonio does not appear to have been recorded in the county where the land is situated; nor was there any evideuce that the lines of the Acosta grant were plainly marked, or that it had been platted on the map in the district or county surveyor’s office, or that the grant was of general notoriety in the section of country where the survey was made under which appellees claim, or that the party under whom they claim had any knowledge of such grant previous to the location and survey of his certificate. And there was no evidence adduced by either party showing what disposition had been made of the protocol or matrix of Acosta’s grant, or from which it could be inferred that it was not on deposit in the general land office; for undoubtedly the agreement which we have copied, whatever may have been the intention of the parties, does not do so. On this state of the case the jury were instructed by the court in conformity with the ruling in the case of Guilbeau v. Mays, 15 Tex., 410, as explained and modified in the subsequent cases of Byrne v. Fagan, 16 Tex., 391; Musquis v. Blake, [253]*25324 Tex., 461; Nicholson v. Horton, 23 Tex., 47; Word v. McKinney, 25 Tex., 258; and Wilson v. Williams, 25 Tex., 54.
And had there been any testimony before the jury tending to prove that the protocol of Acosta’s grant was not in the general land office when appellee’s survey was made, in the light of these decisions no objection could be made to this charge. But it may be well questioned whether, in the facts before the jury, it was not calculated to mislead, rather than aid them in attaining a correct conclusion in their verdict. At all events, it must be held that the verdict rendered is unsupported by the evidence, and the motion for a new trial should therefore have been sustained.
In the case of Byrne v. Fagan, IIemphiIl, 0. J., says: “But there was no proof that the original or protocol of the testimonio, offered in evidence by defendants, was not deposited in the general land office, and there is a presumption that, when there is a testimonio, the original is among the archives of the general land office, being its proper place of deposit. How, although an owner of lands should, in the, exercise of vigilance, record his grants or patents, and would, perhaps, examine as to their proper delineation on the county maps, yet he is not, for his own security or for the preservation of his rights, compelled to the performance of these acts, provided his grant be deposited in the general land office. If it be found there, it is notice at least to the government, and those who claim under the government. Whether it be delineated on the county map or not, is a matter which cannot affect the grantee. To make this delineation is the duty of the officers charged with such functions, and their failure or neglect in discharging this duty cannot impair the rights of patentees.”
That I may not, by the reference I have made to the case of Gruilbeau v. Mays, and the subsequent cases modifying [254]*254it, be placed in a false attitude if I should hereafter be called upon to consider the questions discussed in them, I feel■ constrained to say, with the most profound respect for the great jurists who have given their sanction to the doctrine contained in these cases, that I have never been able to find anything in the statutes, prior to the last session of the legislature, or in our law of real property, to convince my judgment of their soundness, and should I feel constrained to follow them, if the question involved should come before me unaffected by the provisions of the act of the last session of the legislature on this subject, I should do so upon the ground of stare decisis, instead of a belief of their intrinsic correctness.
In the case of Guilbeau v. Mays, with which this doctrine had its origin, it is said that the failure of the grantee of the elder title from the government to record his title, or delineate the laud on the maps, or give other notice, will pospone it to the .junior title, and place the owner of the latter in the position before the courts of an innocent purchaser, and in principle not distinguishable from the great class of cases of innocent purchasers without notice of any prior or superior title. An examination of the able opinion in this case shows very plainly that the decision is rested mainly in the assumption that grants from the government, especially such as are referred to in the opinion, come within the provisions of the registration laws, and hence, if they were not recorded, the owner would be postponed in favor of a junior title. If this were the correct construction of the registration laws, and they are to be held to affect pre-existing titles, the conclusion would be unquestionable.
Bub it is emphatically held, in the cases of Byrne v. Fagan, Nicholson v. Horton, and Musquis v. Blake, that the failure of the grantee to record his title does not give the superior right to the junior grantee. It must now be conceded, therefore, that although such titles may be regis[255]*255tered, it is not obligatory upon the owners that they shall be. It is the statutes requiring deeds and other instruments to be registered which have created “ the great class of cases of innocent purchasers without notice of any prior or superior title.” Can, then, the grantee of the elder title subject himself to the penalty imposed by these laws by omissions to which they have no reference ? Most certainly he will not. If the owner of the land is to be postponed, it is not from an omission which subjects him, by the plain language of the statute, to such penalty, but it must be on general equitable principles, which forbid him from taking advantage of his - own wrong, or enforcing a claim or demand against one whom he has assisted to mislead. If this is so, each case would have to stand upon its peculiar facts, and it could scarcely be held, as a general rule, that the mere absence of the grant from the general land office should 'operate so disastrously upon the owner of such grant.
As is said by Chief Justice Hemphill, it is the duty of the officers of the government to make the delineation on the maps of all granted lands, and their failure to do so cannot affect the owners; and, says he, “if from such failure the grant is not delineated on the county map, the commissioner of the general land office might re-grant the land; but in the controversy between the two titles, the elder grant, if capable of identification, must prevail over the junior patent.” A parity of reasoning leads to the conclusion that the title of the elder grantee, if otherwise susceptible of being established, should not be lost by the absence of the protocol from its proper place of deposit in the land office. It was the duty of the officers who had the custody of such instruments to deposit them there. It cannot be supposed that they were ever in the custody or under the control of the grantees. They are not required, or even permitted, by law, to place the testimonios, which alone went into their possession, in the office. Upon what rule or prin[256]*256ciplo, then, shall the owner incur the penalty of forfeiture of his land from his failure to register his testimonio in the office of the'clerk of the county court, which otherwise'was not required of him, merely through the default of the officers of the government to discharge their duty ? This, as we have said, is not a statutory penalty, through failure to comply with a requirement prescribed by statute, but a rule depending upon principles of equity. It should only operate upon a party, therefore, who has been voluntarily in default. These instruments, which it is insisted must be recorded, it must be remembered, are frequently of many years’ anterior date to the registration laws, and it must, in many instances, have been impossible for the holders to' have had them probated and recorded before the land was appropriated under a subsequent title or location. If the owner is not required to register his title, how can it be held that his failure to do so shall subject him to a forfeiture of his land, because he has not deposited in the land office the protocol of Ms title, which was never subject to Ms control, or had his survey, marked upon the map, though bound, as this court has decided, to do neither the one nor the other of these things?
It is also to be remembered, that the question under consideration is with reference to notice to enable subsequent locators to ascertain what land has been appropriated by previous grants and what still remains public domain. It is not a question of purchaser without notice, in any just conception of the subject. And therefore it was held, that the grants or patents from the government were not required by the registration laws to be recorded, in order to protect the holder of the older title.
What possible service, then, will the registration of the different grants from the government in the clerk’s office be to persons seeMng for vacant land? A moment’s reflection must satisfy any one that it can afford Mm no assistance. The mere inspection of a mass of titles can furnish [257]*257no guide in discriminating vacant from appropriated land. How many titles are there now in the general land office whose locations cannot be told even in the office, because not yet platted on the map ? The mere deposit of one of these titles in the office, as the court holds, relieves the owner from the necessity of recording. Tet shall the failure in the mere useless act, so far as the subsequent location is concerned, of registering the title, work a forfeiture, because the grant is not thus filed in the general land office ? It must also often have been the case that the owners of such grants were, after all reasonable diligence, unable to learn in what county their lands were situated, until after locations had been made upon them.
Much more might be said; but as I intended simply indicating my views upon the question, and not to enter into an elaborate discussion of it, I refrain from its further consideration. It will, of course, be understood, in what I have said on this subject, I express merely my own opinions, and do not attempt to speak for the court or any other member of it.
For the error in the charge indicated, and the refusal to grant a new trial, the judgment is reversed, and the cause
Remanded.