Walker, J.
In announcing the opinion at which we have arrived in this case, it would be unnecessary to follow, in their . due order, the assignments of error. Most of the material questions presented for our consideration are saved on the bills of exception, some of which we will notice in their order.
As to the first, we think the defendants were entitled to a trial by jury. An agreement to submit to the court the law and the facts in the case, made ten years before the trial, and subsequent to which material changes were made in parties as well as in the locus of the trial, should not have been regarded as binding, and the cause should have been tried by a jury, if demanded.
Touching the matter contained in the second bill of exceptions, we think the court erred in overruling the motion to dismiss the intervention of Lee and wife, filed while the cause was pending in Hays county. H the first suit between these [300]*300parties, brought in 1847, must be regarded as an action of trespass to try title (11 Texas, 580), then the intervention of Lee and wife came too late, being four or five years after the termination of the first suit. Their intervention was, as to them, an original action.
As to the matter of the third bill of exceptions, we believe it incompetent, even under our very liberal system of practice and procedure, for any number of persons, holding several interests, to join in a common suit for the recovery of land where, if they recover at all, they must recover in severalty and in different parts of the whole tract claimed.
If the translation of the Spanish concession were offered by the plaintiffs below for that purpose,, it was incompetent to prove a grant. It did not purport to be a copy of a grant, and by its very terms it forbade the presumption of a grant under it. This paper, in the attitude assumed by the pleadings, had no judicial standing in the case.
We think it was error to admit the declarations of Madam Duran in proof of her title, and to support the title of those claiming under her; nor was the will of Madam Duran competent evidence to prove her title.
These errors are sufficient to warrant the reversal of the judgment and the dismissal of the case; but we feel it our duty in this case to give other, if not stronger and better, reasons for the disposition we propose to make of the case.
A notice of the facts in the case becomes necessary, and it is somewhat difficult to understand what use the plaintiffs propose to make of the amparo, or concession, made to Dona Feliciana Duran Cubier for the land in controversy, dated in 1807. This paper, as before remarked, could have no judicial standing in the court. This court said in Paschal v. Perez, 7 Texas, 348, “ It is no longer an open question that an imperfect title, ema- “ nating from a former, and unrecognized by the existing, gov- “ eminent, forms no foundation for an action.” An inchoate or incipient title is imperfect, and requires some additional exercise of the granting power before a fee can pass under it; [301]*301it does not imply absolute dominion in the land either against the sovereign or against individuals.
The political power of the government may affirm or disaffirm ; and this is undoubtedly true under all changes of sovereignity which may occur, the successor not being bound by the incipient or imperfect acts of a preceding government, any farther than such governmenG would be bound by its own acts.
But doubtless the theory of this case, as maintained by the plaintiffs, is, that they have proved a possession for such length of time as to raise the presumption of a confirmation of their otherwise inchoate title.
Before discussing the principles of law applicable to this theory, let us examine the leading facts in the case which may be considered as proven in a manner to satisfy a jury, if the cause had been tried to a jury.
First, then, the concession dates in 1807. In 1808, Madame Duran established a ranche, cultivated a small portion of the land, and herded a few cattle, until 1812 or 1813, when war broke out, and the inhabitants of the country were disturbed in their peaceful pursuits, and Mrs. Duran with her family and servants took refuge in Mexico. That in the year 1813 or 1814 she died at Monclova.
There is no evidence to show any occupation or possession of the land from 1813 to 1820. In the latter year, the heirs of Madame Cubier made partition of the two leagues of land among themselves, as iudicated by the map found in the record, the blue lines showing a division into five parts. The unity of possession in this estate was thus broken, and the lands are still claimed in severalty by those claiming to hold under the Cu-bier grant, so-called.
There is evidence to show that in the year 1820 a brother of Mrs. Cubier occupied and cultivated some portion of the land; but, for the twenty succeeding years, up to 1840, we find no reliable evidence in the record to satisfy us that the land was occupied or cultivated by any person, although there seems [302]*302to be some evidence that some portion of the land was occupied in 1834. In 1842, the witness Mancheca thinks he obseiwed some cultivation upon the land, but the testimony of the witnesses Lewis and James renders the correctness of his memory doubtful.
In view of these facts, it does appear to us, when taken in connection with well-known historical facts, that there is very slender ground for the presumption of a grant from the Spanish government. The time from 1807 to 1813 or 1814 is the only time in which the Spanish Intendente at San Luis Potosí could have confirmed the grant to Madame Cubier, for in one of those years she died. In 1821 Mexico established her independence of the- crown of Spain, and all persons holding possession of lands by inchoate grants issued subsequent to the year 1700, had to apply to the authorities under the new government for confirmation. (See Paschal v. Perez, 7 Texas, 370; 1 White’s Recop., 64.)
But it is- totally unnecessary to pursue this inquiry, inasmuch as the plaintiffs do not claim that the Cubier grant ever was confirmed, but rely upon the doctrine of occupation and prescription for title, which they claim has in their case become a necessary presumption; or, perhaps, it may be more correct to say that the plaintiffs claim a presumption of confirmation from lapse of time.
In the case of Paschal v. Perez, there was certainly a longer and better connected term of occupation proved than in the case at bar; and yet the Chief Justice (whose opinions in matters of this kind are to be venerated) used this language :— “ In relation to the presumption of confirmation by lapse of “ time, it is sufficient to say, to whatever extent this may be law- “ fully indulged in support of an actual occupation with claim of “ ownership, it cannot arise, at least until'a much longer time “ has elapsed, from such acts of ownership as are proved in this “ case.”
In a case between private individuals, and in relation to an incorporeal hereditament, the Supreme Court of the United [303]*303States held that a grant might he presumed after a lapse of thirty years’ uninterrupted possession. (See 6 Peters, 498.) There is in this case a quotation from the law of Toro, by which it appears that prescription was of two kinds,—immemorial and temporal.
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Walker, J.
In announcing the opinion at which we have arrived in this case, it would be unnecessary to follow, in their . due order, the assignments of error. Most of the material questions presented for our consideration are saved on the bills of exception, some of which we will notice in their order.
As to the first, we think the defendants were entitled to a trial by jury. An agreement to submit to the court the law and the facts in the case, made ten years before the trial, and subsequent to which material changes were made in parties as well as in the locus of the trial, should not have been regarded as binding, and the cause should have been tried by a jury, if demanded.
Touching the matter contained in the second bill of exceptions, we think the court erred in overruling the motion to dismiss the intervention of Lee and wife, filed while the cause was pending in Hays county. H the first suit between these [300]*300parties, brought in 1847, must be regarded as an action of trespass to try title (11 Texas, 580), then the intervention of Lee and wife came too late, being four or five years after the termination of the first suit. Their intervention was, as to them, an original action.
As to the matter of the third bill of exceptions, we believe it incompetent, even under our very liberal system of practice and procedure, for any number of persons, holding several interests, to join in a common suit for the recovery of land where, if they recover at all, they must recover in severalty and in different parts of the whole tract claimed.
If the translation of the Spanish concession were offered by the plaintiffs below for that purpose,, it was incompetent to prove a grant. It did not purport to be a copy of a grant, and by its very terms it forbade the presumption of a grant under it. This paper, in the attitude assumed by the pleadings, had no judicial standing in the case.
We think it was error to admit the declarations of Madam Duran in proof of her title, and to support the title of those claiming under her; nor was the will of Madam Duran competent evidence to prove her title.
These errors are sufficient to warrant the reversal of the judgment and the dismissal of the case; but we feel it our duty in this case to give other, if not stronger and better, reasons for the disposition we propose to make of the case.
A notice of the facts in the case becomes necessary, and it is somewhat difficult to understand what use the plaintiffs propose to make of the amparo, or concession, made to Dona Feliciana Duran Cubier for the land in controversy, dated in 1807. This paper, as before remarked, could have no judicial standing in the court. This court said in Paschal v. Perez, 7 Texas, 348, “ It is no longer an open question that an imperfect title, ema- “ nating from a former, and unrecognized by the existing, gov- “ eminent, forms no foundation for an action.” An inchoate or incipient title is imperfect, and requires some additional exercise of the granting power before a fee can pass under it; [301]*301it does not imply absolute dominion in the land either against the sovereign or against individuals.
The political power of the government may affirm or disaffirm ; and this is undoubtedly true under all changes of sovereignity which may occur, the successor not being bound by the incipient or imperfect acts of a preceding government, any farther than such governmenG would be bound by its own acts.
But doubtless the theory of this case, as maintained by the plaintiffs, is, that they have proved a possession for such length of time as to raise the presumption of a confirmation of their otherwise inchoate title.
Before discussing the principles of law applicable to this theory, let us examine the leading facts in the case which may be considered as proven in a manner to satisfy a jury, if the cause had been tried to a jury.
First, then, the concession dates in 1807. In 1808, Madame Duran established a ranche, cultivated a small portion of the land, and herded a few cattle, until 1812 or 1813, when war broke out, and the inhabitants of the country were disturbed in their peaceful pursuits, and Mrs. Duran with her family and servants took refuge in Mexico. That in the year 1813 or 1814 she died at Monclova.
There is no evidence to show any occupation or possession of the land from 1813 to 1820. In the latter year, the heirs of Madame Cubier made partition of the two leagues of land among themselves, as iudicated by the map found in the record, the blue lines showing a division into five parts. The unity of possession in this estate was thus broken, and the lands are still claimed in severalty by those claiming to hold under the Cu-bier grant, so-called.
There is evidence to show that in the year 1820 a brother of Mrs. Cubier occupied and cultivated some portion of the land; but, for the twenty succeeding years, up to 1840, we find no reliable evidence in the record to satisfy us that the land was occupied or cultivated by any person, although there seems [302]*302to be some evidence that some portion of the land was occupied in 1834. In 1842, the witness Mancheca thinks he obseiwed some cultivation upon the land, but the testimony of the witnesses Lewis and James renders the correctness of his memory doubtful.
In view of these facts, it does appear to us, when taken in connection with well-known historical facts, that there is very slender ground for the presumption of a grant from the Spanish government. The time from 1807 to 1813 or 1814 is the only time in which the Spanish Intendente at San Luis Potosí could have confirmed the grant to Madame Cubier, for in one of those years she died. In 1821 Mexico established her independence of the- crown of Spain, and all persons holding possession of lands by inchoate grants issued subsequent to the year 1700, had to apply to the authorities under the new government for confirmation. (See Paschal v. Perez, 7 Texas, 370; 1 White’s Recop., 64.)
But it is- totally unnecessary to pursue this inquiry, inasmuch as the plaintiffs do not claim that the Cubier grant ever was confirmed, but rely upon the doctrine of occupation and prescription for title, which they claim has in their case become a necessary presumption; or, perhaps, it may be more correct to say that the plaintiffs claim a presumption of confirmation from lapse of time.
In the case of Paschal v. Perez, there was certainly a longer and better connected term of occupation proved than in the case at bar; and yet the Chief Justice (whose opinions in matters of this kind are to be venerated) used this language :— “ In relation to the presumption of confirmation by lapse of “ time, it is sufficient to say, to whatever extent this may be law- “ fully indulged in support of an actual occupation with claim of “ ownership, it cannot arise, at least until'a much longer time “ has elapsed, from such acts of ownership as are proved in this “ case.”
In a case between private individuals, and in relation to an incorporeal hereditament, the Supreme Court of the United [303]*303States held that a grant might he presumed after a lapse of thirty years’ uninterrupted possession. (See 6 Peters, 498.) There is in this case a quotation from the law of Toro, by which it appears that prescription was of two kinds,—immemorial and temporal. The first might be proved by witnesses of good repute, who of their own knowledge could prove the possession for forty years, and who would say upon their oaths that they never heard their ancestors say anything to the contrary. This immemorial possession related to the seignory or dominion of towns and cities, and to the jurisdiction of courts, but could not run against the king’s prerogative. (1 White’s Rec., 95, Sections 10 to 21.)
But in the case of Paschal v. Perez this court, after referring to the regulation of October 15th, 1754, says that the regulation throughout shows that confirmation is necessary to perfect title, except in cases where possession has continued for not less than fifty-four years, and in such case title by prescription might be set up. Even this provision of the Spanish law, if such be the well-founded conclusion, violates the maxim “nulhom tempus occurrit rege,” to which our common law notions have hitherto inclined.
But we should feel great willingness to defer to the wisdom and learning of our predecessors on this bench, as expressed in Paul v. Perez, 7 Texas, 339; Herndon v. Casiano, 7 Texas, 323, and other cases, were it not that the opinions in these cases, as well as the opinion rendered in the case at bar, when before this court in 11 Texas, 579, have been so ably reviewed by our more immediate predecessors, in Biencourt v. Parker, 27 Texas, 558; Walker v. Hanks, ib., 535; Yancey v. Norris, ib., 40; and Watkins v. Taylor, 26 Texas, 688.
It cannot have escaped the notice of the profession that the latter cases have strongly inclined to a different rule. We of the present bench, in Forest v. Woodall, 33 Texas, 363, have adhered to the reasoning of Smith v. Power, 23 Texas, 29, and the later cases referred to.
In Biencourt v. Parker, Mr. Justice Moore, in a learned and [304]*304lucid opinion, says: “ Although to some extent every case “ must stand upon its own peculiar facts, the principles upon “ which the courts are to be guided in the presumption of grants “ may be said to be now well established by the former decisions of this court. (Taylor v. Watkins, 26 Texas, 688; and “ Yancey v. Norris, 27 Texas, 40.) The distinction, however, “ between the presumption of a grant from the government, “ of a part of the public domain, and of the intermediate links “ in a chain of conveyance, has not been overlooked by the “ court.”
We think it not unlikely that courts have in some instances failed in the distinction necessary in the law of presumptions, between incorporeal hereditaments and the realty. By the English courts, it was long questioned whether the doctrine of presumption could be applied to land, and we are not sure that the later cases have changed the rule. In Doe v. Cook, 6 Bing., 174, Tindale, C. J., said: “ that no case could be put “ in which any presumption had been made, except where title “ had been shown (by the party who invoked the presumption) “ good in substance, but wanting some collateral matter neces “ sary to make it complete in point of form. In such case, “ where the possession is known to have been consistent with “ the fact to be presumed, and only in such cases, had the pre “ sumption ever been allowed.” In Fenwick v. Reid, Abbot, C. J. strongly rebuked the plea for presumptions of grants and conveyances. In the same case Holroyd, J., said that even where rights of way depended on presumptions, evidence to rebut the presumption would be admissible. In Livett v. Wilson, 3 Bing., 64, Best, C. J., speaking of the law of presumption in its application to easements and rights of way, said: “I do not dispute that if there had been an uninter “ rupted usage for twenty years, the jury might be authorized “ to presume it originated in a deed; but a court would not “ be authorized to instruct the jury that they must so find.”
Very numerous cases are referred to, of similar import, in the appellants’ briefs ; none, perhaps, more applicable to [305]*305the case at bar than the case of Ballard v. Barksdale, 11 Iredell.
How, then, stands the case at bar % Possession, under an inchoate grant to Dona Feliciana Duran Cubier in 1808 continued about five years; partition of the lands among her heirs, in 1820; temporary and limited possession broken off for twenty years ; the office of Intendente broken up in 1818 by the change of government, to whom the inchoate title by its own terms referred for confirmation.
Lest this opinion should be in anywise misunderstood, and improperly applied to cases coming under our limitation laws, we will here say that our ten years’ limitation act is similar in character to the statute of 21 James I., Chapter 16, under which title may be gained by one individual against another by prescription under a lapse of twenty years; but neither the statute of James nor our own ten years’ limitation law can give .title against the government. Before prescription can run under these laws, the government must part with the title, and then the statute may run. For the reasons given, the judgment in this case must be reversed and the cause dismissed.
Reversed and dismissed.