GAINES, Chief Justice.
This was an action of trespass to try title, brought by the plaintiff in error against defendants in error to recover a portion of a tract of land, claimed by the former under an alleged Spanish grant. The defendants claimed title by virtue of certain patents issued by the State of Texas.
The case was tried without a jury, and resulted in a judgment in favor of the defendants. There was an appeal to the Court of Civil Appeals upon the conclusions of fact and law filed in the trial court,—no statement of facts having been prepared and made a part of the record. The Court of Civil Appeals rendered a judgment of affirmance; and to reverse that judgment, the writ of error from this court has been applied for and obtained.
In his conclusions, the trial judge found, among other facts not necessary to recite:
“First. That in 1816 Jose Manuel Garcia obtained a grant from Jose Rafael Enriquez, the Justice at Palafox, to two sitios of land, said grant being as follows, to wit:
To His Honor, the Governor:
Don Manuel Garcia, Captain of militia and a resident of the town of Palafox, with the greatest due respect and submission would appear before you and say: that I have, for about fourteen years, claimed and possessed as my own, two sitios of pasture lands of about one league at a distance of a quarter of a league from said town, on an eastern course, where I have opened a rancho, with dwelling houses, pens and fence, within a pasture ground formed by the bends of the Rio Grande, where I raise crops according to the seasons; and in as much as it is not my intention to abandon it, notwithstanding the enormous damages I have experienced from the savage Indians, and wish to secure it as a lawful possession, I request that you be pleased (if you consider it just) to order that I be placed in the lawful juridical possession of said lands, and that the proper Testimonio of it be given to me. Therefore, I request and pray that you be pleased to accede to my petition, wherein I shall receive favor and justice. I swear that I do not act maliciously and the requisites, &c.
J ose Manuel Garcia.
City of Monclova, the 20th of February, 1816.
Monclova, February 22, 1816.
In consideration of the merit acquired by the petitioner by improving and settling the tract of land which he mentions, and having possessed it several years, notwithstanding the evident risk from savage Indians, the Justice at Palafox will issue to him the respective documents for which he makes application. Adam.
Town of San Jose de Palafox, April 20, 1816.
In conformity to the superior decree of the Governor of Monclova, Don Francisco Adam, extended on the margin of the petition, let there be given to the petitioner the sitios of pasture land which is formed by the bends of the Rio Grande, where he raises his respective crops. To which effect, I, the sub-delegate of this town, Jose Rafael Enriquez, will proceed to the examinations and survey of the same, as is stated by the party in his petition. This I have ordered by this decree signed by me, the said Judge, and my assisting witnesses with whom I act in default of a Hotary Public, there being none according to law; which I certify.
In the same town, same day, month and year, I, the same Judge, and my assisting witnesses, jointly with the party interested, Don Manuel Garcia, proceeded to the tract of land indicated, in which I placed him in possession, the boundaries whereof run from the town tract (Egidos) on the West from the narrows (La Angostura) and on the east to the Llave creek; on the south it adjoins the bends (Ancones) which I did also adjudicate to him and gave him possession thereof without leaving any room to be occupied by another, and on the north to Santa Isabel Creek; giving him likewise possession of the dwelling houses and pens situated on the high ground on the same valley (Vega), where the said bends exist. By virtue of what has been practiced, in the name of the
King, Our Lord (whom God save), I order that he be not despoiled of said tract of land without a previous hearing and having forfeited it by due course of law, to be protected in it without prejudice of a third party or another representing a better right thereto, as being entitled to the same for his meritorious services and henceforth and forever, he may make such use thereof as he deems proper, unto him, his children and assigns, and for its perpetuation, I give him the present original title of possession, with assurance of transcribing a literal testimonio of it whenever the proper paper is on hand, there being none at present in the Revenue office. I, the said Judge, and my assisting witnesses signing hereto in default of a Rotary Public, there being none according to law; which I certify. Jose Rafael Enriquez.
Assisting:
Francisco de Errera.
Jose Marfia Gonzalez.
Second. That in 1818 the said Garcia conveyed this land to Don Rafael Enriquez by a conveyance written on the same sheet as the grant.
Third. That Rafael Enriquez conveyed this land to F. Gilbeau and Volney E. Howard, and that plaintiff by good and valid deeds derives title thereto through said Gilbeau and Howard.
Fourth. That both said grant and deed were archived in the General Land Office of Texas in December, 1846.
Fifth. That the deed from Garcia to Enriquez could not he detached or separated from the grant without leaving evidence that there was some other paper wanting belonging to said original grant.
Sixth. That Garcia and Enriquez had possession of a portion of the lands described in plaintiff’s petition in the bends of the river south of the town of Palafox, from about 1813 to 1820; that the town of Palafox as well as the rancho were destroyed by the Indians about 1820; that there has been no possession of said lands since said date.
Seventh. That this grant was not platted as described in plaintiff’s petition and so as to include, any portion of the lands in controversy, until August, 1880; that prior to that time it was platted about ten miles north of its present location and at a point that would not include any portion of the lands now claimed, as shown in the following plat. (Here follows the plat.)
Eighth. That the defendants claim to have patents from the State of Texas to six sections of the land in controversy described in their answers, all of which were located after this land was platted in August, 1880, except survey Ho. 233.
Hmth. Ho evidence to support the three years’ limitation or stale demand. . . .
Tenth. That to run the course north, the last call in the grant, the line would not reach the Santa Isabel Creek; that the Santa Isabel Creek could be reached by running the course H". 28 E., but in doing so the survey would conflict- with an older grant in the name of Joaquin Galan. I find that the course on which the R. line of the present loca
tion is ran is N. 70 E. to Santa Isabel Creek, and is on what was vacant land at the time of its location as shown in the following plat: (Here follows plat.)”
Upon the facts so found, the learned special Judge who tried the case, concluded that the grant required the approval of the Intendente of the province, and that for want of such approval it was void. The Court of Civil Appeals first held the grant valid, but upon a motion for a rehearing set aside their former judgment, and in an able and learned opinion concurred with the trial court and declared it void.
The question which first suggests itself to our minds is: Was the approval of an Intendente necessary to a grant of land in Mexico at the date of the alleged title in this case, to wit: in the year 1816? The Intendencias were created in New Spain by virtue of the royal ordinance for the establishment of Intendentes, issued on the 4th day of December, 3786. With the exception of certain northern and eastern provinces, which were put under the rule of Commandants General, Mexico was divided into twelve Intendencias. Texas was at first within the excepted territory, but some years afterwards was included within the Intendencia of San Luis Potosí. By article 81 of the ordinance mentioned above, the Intendentes are given exclusive power over the sale, composition and distribution of the royal lands. Hence it must be conceded, that so long as that article remained in force, in the absence of some special authority emanating from the King, no lawful title could issue without the approval or confirmation of that officer. But by a decree of the Cortes of the date of January 4, 1813, enacted for the express purpose of reducing the vacant and other public lands to private dominion, provision was made for the sale and distribution of such lands, and their distribution was placed under the control of the ayuntamientos of the respective municipalities with the approval of the provincial deputations. (Decrees of the Cortes, p. 56.) Of the decrees passed by that body, a Mexican writer says: “The revolution of 1808, in Spain, gave rise to the installation of the extraordinary Cortes of Cadiz in 1811, which, dissolved in 1814, were re-established in 1820, and the laws which they enacted from the date of their installation until the 27th of September, 1821, in which the independence of Mexico was established, form, likewise, part of the legislation which rules it to-day.” (1 Novísimo Sala Mexicano, p. 18.) In 1814, upon his restoration, the King, Ferdinand VII., issued a manifesto in relation to the Constitution which had been established by the Cortes, declaring it his “royal purpose” “not only not to swear or accede to the said Constitution or to any decree of the general and extraordinary Cortes, or the ordinary Cortes already issued, that is, such as deprived him of the rights and prerogatives of his sovereignty, established by the Constitution and laws under which the nation had for a long time continued,” and further declaring that Constitution and those decrees void. But the manifesto contained this further declaration, “in order that there may be no interruption in the administration of justice in the interval before the restoration of order,
and of the observance in the kingdom of the system prevailing before the recent innovations, in relation to which, without loss of time, there will be suitable provision, it is my will that until such time, the ordinary justices in the towns which are found in office, the judges de letras wherever they may reside, and the audiences, intendants and other tribunals of justice in the exercise of their judicial powers, and in relation to political and administrative matters the ayuntamientos of the towns shall remain as at present, and in the interim whatever is proper to be .preserved shall remain, and until the Cortes, which I shall convene, shall, having examined into the matter and the permanent arrangement in this branch of the government of the kingdom, shall be established.” (I Decretos del Rey Ferdinand VII, p. 1, translated in Rockwell’s Spanish and Hex. Laws, p. 404.) This left in effect the decrees of the Cortes affecting the ordinary administration of the government.
But it is claimed, that the decree in relation to the distribution of the vacant lands was .annulled by subsequent royal edicts. In the case of the United States against Clarke, 8 Pet., 455, Chief Justice Marshall speaking for the court says, that the decree in question “seems to have been repealed on the 22nd of August, 1814.” But the Royal Cédula of the date mentioned relates only to the proprios of the several municipalities of the kingdom. It purports to place these proprios under the jurisdiction and control of the King’s Council and to annul the decrees of the Cortes in so far as the administration of that branch of the public service was thereby affected and to restore that administration to the state in which it existed in the year 1808, the time the king was deposed by the French invasion. What the proprios were, is not a matter of doubt. They were productive lands the usufruct of which had been set apart to the several municipalities for the purpose of defraying the charges of their respective governments. (Escriche’s Dictionary; Words, “Proprios y Arbitrios.”) The vacant lands, that is to say, the unappropriated royal domain, are designated as “haldios o realengos.” (See the words in Escriche.) It is quite clear we think that the Royal Cédula of August 22, 1814, did not affect the decree of January 4, 1813, in so far as it provided for the sale and distribution of the vacant lands.
But it is asserted, that the “decree was abrogated by a royal ee’dula of the eighth of July, 1814.” (Hall’s Mexican Law, 48.) Practieally the same assertion is found in a note to the “Fovisima Recopilación,” found in the eighth volume of Los Códigos Españoles, page 520. This presents a much more difficult question. The title of that Cédula, as we translate it, reads as follows: “Royal Cédula of his Majesty and Lords of his Council, by which is explicitly annulled the seventh article of the decree of the Cortes of the 13th of September, 1813, and the ancient municipal arbitrios are commanded to be re-established, with whatever else that is expressed.” Whether the title was the act of the King or of his council we have no means of determining. But it is found in the official publication. (1 Decretos del Rey Don Ferdinando VII, 114.) Omitting the long preamble, the decree as translated to the best of our
ability reads as follows: “I have deemed proper to annul explicitly the said article VII of the decree of the Cortes of the 13th of September, 1813, and to command, that the ancient municipal arbitrios conceded to the towns in order to provide for their urgent demands be re-established on the footing on which they were in the year 1808, with the inclusion of that awarded (or provided as a resource) upon the baldíos, which by the other decree of the same Cortes of the 4th of-January of the same year, 1813, were directed to be sold and distributed.” The participial phrase which we have given a double translation is “lo arbitrado.” The meaning of the verb “arbitrar” as given in the dictionaries is to “adjudge or award” or “to strike out means or expedients.” The noun “arbitrios” has a well-defined technical signification. Escriche gives its meaning as, “the taxes which in default of proprios a town imposes with competent authority upon certain articles of merchandise.” As indicating the sources of revenue of a municipality, the words “proprios” and “arbitrios” are usually found linked together and when so connected they are sometimes used as meaning “ways and means.” That the inhabitants of the towns had been granted some rights in the vacant lands is shown by the section II of the Royal Regulation of October 15, 1754. That section reads in part as follows: “The judges and officers, to whom jurisdiction for the sale and composition of the royal lands (realengos) may be sub-delegated, shall proceed with mildness, gentleness, and moderation, with verbal and not judicial proceedings, in the case of those lands which the Indians shall have possessed, and of others when required, especially for their labor, tillage, and tending of cattle. But, in regard to lands of community, and those granted to the towns for pasturage and commons, no change shall be made; the towns shall be maintained in the possession of them.”
(2
White’s Recopilación, (S3.) See also Hamilton’s Mex. Law, 77. That the word “arbitrios” was sometimes used in a general sense, as meaning the resources of the towns, and included their privileges in the royal lands, as well as the taxes, is indicated by the decree of the 4th of January, 1813, itself. The object of the decree as expressed in the preamble is to reduce the common lands (los terrenos comunes) to private ownership. The lands, the subject matter of the decree, are described in the first article as “todos los terrenos, baldíos o realengos y de proprios y arbitrios” etc.—all the lands vacant or of the royal domain and of the proprios and arbitrios. The exidos or the commons of the towns, that is to say, the parks, common pleasure grounds and the like, are excepted. The mention of the arbitrios suggests that there were lands subject to some municipal privileges other than the proprios. But we do not feel warranted in hazarding any opinion upon the question. But when we look to the entire cédula of July 8, 1814,—the title, the preamble and the order of the king, we incline to think, at least, that it was not one of its purposes to annul the entire decree of January 4, 1813, and to restore the power of the intendentes over the vacant lands. The title which has been already quoted names the decree of September 13th,
but does not mention that of January 4, 1813. The preamble, as seems to have been usual in matters of great importance, sets forth in great detail the reasons which, in the opinion of the king, justified his action. He states in substance, that the effect of the decree of September 13, 1813, which removed the taxes upon articles of consumption, with a view to set free the internal commerce of the realm, was to leave the nation deprived of the bountiful resources, resulting from its ancient and agreeable (suaves) indirect taxation, by the substitution of another system which had filled the people with bitterness and discontent, and also to deprive the municipalities of the means to defray the ordinary expenses of their government. Upon the predicate so laid, the king founds his decree, annuls the laws which had changed the method of taxation conferred upon the towns, and restores their privileges as they existed in 1808. There is nothing in the long and labored preamble to indicate that it. was the royal purpose to interfere in any manner with the disposition of the vacant land—except in so far as the municipalities or their inhabitants might have some direct interest in such lands. Confessing our inability to reach any satisfactory conclusion upon the matter, we are of the opinion, that giving the Cédula in question its widest scope under reasonable rules of construction, it did not have the effect to repeal the decree of January 4, to such an extent as to restore the jurisdiction of the intendentes over the vacant lands.
Our conclusion is fortified by the opinion of a recent Mexican author, who has written an extended treatise on the subject of the vacant lands in his country. After quoting the decree of January 4, 1813, he says: “This decree is the last legislative act of which we know, that has emanated from the Spanish state, and which is occupied with the matter of the vacant lands. We shall not detain ourselves in long commentaries upon this law eminently clear in its construction and design, and which we should probably obscure by attempting to expound it. We shall merely admonish the reader, that by articles XI and XVII of this decree the Cortes commit to the ayuntamientos of the towns the power of issuing titles in full property, which have to be given of common, royal or vacant lands; and to the provincial deputations the power of approving or disapproving the relative concessions. From the promulgation of this law, the intendentes were prohibited from extending titles of proprietorship for sales or compositions of the lands, and if they went so far as to issue any one after that promulgation, such title would be radically null, and insufficient to gain by prescription the proprietorship in an immovable." (1 Orozco’s Terrenos Baldíos, 113.) The author then proceeds to point out that the provincial deputations were never established in Mexico and that in his opinion no valid titles could have issued there under the decree for the want of the provincial deputations, whose approval was essential to their validity. He is probably correct in saying these deputations were never established because shortly after his return to power the king promptly suppressed them. (1 Decretos del Eey, pp. 74 and 95.) What Orozco means by saying that
this was the last decree concerning the vacant land, emanating from the Spanish state, we do not fully understand. By royal decree issued in 1818 the sale of these lands was again ordered to pay the public debt, and in 1819 rules were passed for putting the decree in execution. Again in 1830, upon the re-establishment of the Cortes, the distribution of the lands was a second time ordered by that body.' Owing to the condition of the country then existing and to the short time which elapsed from the promulgation of these decrees until the independence of Mexico was assured, it is probable they were never put into effect; and this may be what the author means by saying that the decree of January 4, 1813, was the last upon the subject. But again in another place, in speaking of the decree of the 4th of January, 1813, he says: “This decree committed the power of confirming the grants of lands in the colony to the provincial deputations of which the same decree speaks. In this State the legislation upon the royal, now called the natural or vacant, lands remained until the consummation of our independence.” (3 Orozoco Terrenos Baldíos, 770.) We do not know to what weight the opinion of this writer is entitled, but we do know that he has the merit of expressing his views with remarkable clearness and intelligence, and that he speaks in no uncertain voice.
If Orozco be correct, as we incline to think, then there was no general law for the disposition of the vacant lands in force in Mexico, from the date of the decree in question until after its independence was established. And even if the jurisdiction of the ayuntamientos over such, lands were taken away by the Boyal Cédula of July 8, 1814, it may be-gravely doubted whether it was intended to re-establish the authority of the intendentes in that particular.
We incline to think that by reason of the disorders which had grown out of foreign domination, war and internal dissensions, it was deemed best to promulgate no general decree upon the subject. Such a consideration would have especial weight when applied to Mexico, where one formidable insurrection had just been suppressed and preparations were doubtless being made to accomplish a revolution and to establish the independence of the country. We hardly think, however, there was any well defined intention to depart from the ancient policy of alienating the lands for the purpose of settling the country and of the promotion of agriculture and other industries. This especially applies to that portion of Texas in which the land in controversy is situated, where the savages of that frontier, as we know historically as well as from the evidence in this case, had not at the time ceased to contest with Spain the possession of the country. It may have been deemed best under the existing circumstances to control the matter by special authority issued to the governors of provinces or other officers and to regulate each grant of authority according to the exigencies of the particular territory. Ooa- . huila and Texas were what was known as “distant provinces” and as we shall hereafter see by the Boyal Begulation of October 15, 1754, it had
been found necessary to authorize a sub-delegation of authority as to the lands in such provinces.
(2
White’s Recopilación, 63.)
Such being the state of the Spanish laws -applicable in Mexico at the date of the purported title in controversy, as we can best determine it in the obscurity-which surrounds the question, we think the rule as frequently announced in this court and in the Supreme Court of the United States in regard to the presumption of authority in the officer who has issued a grant is strictly applicable in this case. The case of the United States v. Peralta, 19 How., 343, involved the validity of grant issued by the Governor of California a few years after the independence of Mexico. The title was attacked upon the ground that the Governor had no authority to extend it. In their opinion the Court say:
“We have frequently decided that The public acts of public officers, purporting to be exercised in an official capacity, and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified.’ To adopt a contrary rule would lead to- infinite confusion and uncertainty of titles. The presumption arising from the grant itself makes it prima facie evidence of the power of the officers making it, and throws the burden of proof on the party denying it. The general powers of the governors and other Spanish officers to grant lands within the colonies in full property, and without restriction as to quantity, and in reward for important services, were fully considered by this Court in the case of United States v. Clarke, 8 Pet., 436.
“The appellants, on whom the burden of proof is cast to show want of authority, have produced no evidence, either documentary or historical, that the Spanish officers who usually acted as governors of the distant provinces of California were restricted in their powers, and could not make grants of land. The necessity for the exercise of such a power by the governors, if the crown desired these distant provinces to be settled, is the greater, because of their distance from the source of power. Ey the royal order of August
22,
1776, the northern and northwestern provinces of Mexico were formed into a new and distinct organization, called the Internal Provinces of Hew Spain. This organization included California. It conferred ample powers, civil, military and political, on the commandant-general. The archives of the former government also show that as early as 1786 the governors of California had authority from the commandant-general to make grants, limiting the number of sitios which should be granted. In 1792 California was annexed to the vice-royalty of Mexico, and so continued till the Spanish authority ceased. An attempt to trace the obscure history of the various decrees, orders and regulations of the Spanish Government on this subject would be tedious and unprofitable.”
So in the case of the United States v. Clarke, supra, which involved the question, whether the governor of East Florida had exceeded his power in the extent of the grant, Chief Justice Marshall says:
“A grant made by a governor, if authorized to grant lands in his
province, is prima facie evidence that his power is not exceeded. The connection between the crown and the governor justifies the presumption that he acts according to his orders. Should he disobey them, his hopes are blasted, and he exposes himself to punishment. His orders are known to himself and to those from whom they proceed, but may not be known to the world.
“Such a grant, under a general power, would be considered as valid, and if the power to disavow it existed, until actually disavowed. It can scarcely be doubted, so far as we may reason on general principles, that in a Spanish tribunal a grant having all the forms and sanctions required by law, not actually annulled by superior authority, would be received as evidence of title.”
The same rule has been frequently announced in this court. (Jones v. Garza, 11 Texas, 186; Hancock v. McKinney, 7 Texas, 384; Holliman v. Peebles, 1 Texas, 699; Jenkins v. Chambers, 9 Texas, 167.) In Jones v. Garza, Judge Lipscomb, speaking for the court, says:
“What credit should be accorded to the acts of an officer, assuming to discharge an official attribute, in the absence of all evidence to show what are his precise powers, has been too well settled in this court, to allow a discussion on the subject. We have held and do hold, that he is presumed to act within the scope of his legitimate powers.”
Jones v. Muisbach, 26 Texas, 235, was a second action of trespass to try title, brought under the statute then in force on the same grant that was held void in the case from which we have last quoted; and there is nothing in the opinion in the second suit in conflict with the doctrine so distinctly announced in the first. In Jones v. Muisbach the Court state that, “it has frequently been held by this and other courts, that where an officer of a former government assumes to act in discharge of an official attribute, in the absence of all evidence to show what are his precise powers, he will be presumed to act within the scope of their legitimate extent.” The Court then proceed to say, that if the officer be one whose powers are known and well defined and the authority exercised be such as does not ordinarily pertain to the office, the burden rests upon the party asserting it to prove it by affirmative testimony. It was held in both suits that parol testimony was admissible to show whether the officer had the power to extend the title or not. In the first action the testimony of a witness that the power did not exist, was admitted. The court quote his testimony and hold it sufficient to prove the want of authority. In the second suit, the testimony of three witnesses was admitted, one testifying against the existence of the power and the others in its favor. The testimony of the witness to show the want of the authority was held more trustworthy than that of the other two, and the trial court having decided against the validity of the title, we do not see how the court could have reversed the judgment upon that point. It is true, that in both opinions, the Court say that the powers of the political chief are well known and defined by written law, and that by virtue of his office he did not have authority to grant lands; but in Horton
v. Mitchell, 13 Texas, 47, it is intimated that he may have had special authority. The grant in that case, which was made by the same officer who extended the title to the Baron de Bastrop passed upon in Jones v. Garza and Jones v. Muisbach, was sustained; but the decision proceeds upon the ground, that the record did not show that the point was presented in the lower court.
It may be that the ordinary powers of a political chief are so definitely ascertained that a grant by him should be held void in the absence of affirmative proof of special authority. It does not follow that the same may be said of the governor of a province. The Royal Regulation of October 15, 1754, which relieved the subjects of the realm from applying to the Icing in person for grants of land, authorized the viceroys to appoint sub-delegate judges with jurisdiction over the disposition of the royal domain, and these were empowered “to sub-delegate their commissions to others for the distant parts and provinces of their stations.” (See sec. 2 of the decree, 2 White’s Recopilación, 63.) The third section speaks of “the judges and officers to whom jurisdiction for the sale and composition of royal lands may be sub-delegated.” (2 White’s Recopilación, 63.) So much of the decree was doubtless repealed by the ordinance establishing the intendencias in New Spain; but when, by the decree of the Cortes, the jurisdiction of the intendentes, over the vacant lands was taken away, we see no reason why the power to make grants may not have been temporarily conferred upon the governors of the distant provinces. Numerous titles emanating from the-Governor of East Florida during the period in question have been held valid by the Supreme Court of the United States. U. S. v. Clarke, 8-Pet., 436; U. S. v. Clarke, 9 Pet., 168; U. S. v. Heurtas, 9 Pet., 171; U. S. v. Levy, 13 Pet., 81; U. S. v. Clarke, 16 Pet., 228, and many others.) However, it is well understood that the governors of that province, unlike the governor of West Florida, had the power to grant lands without the approval of the intendente. We cite the fact of his. authority merely to show, that it was a power which was sometimes conferred upon and exercised by the governor of a province.
It is not inconsistent with oqr views, that during the same period, grants in West Florida required the approval of the intendente. Theintendencia of Cuba, to which the Floridas were subject, was not one of those established by the Ordinance of the Intendentes, and it is not surprising, the regulations should be made in reference to the former which were not made applicable to the latter intendencias. Accordingly we find that the king, on the 8th of June, 1814, issued an order to the Intendente of Habana, commanding that notwithstanding the decree of the Cortes of the 4th of January of the previous year, he-should observe the laws of the Indias and the Ordinance of the Intendentes in relation to the disposition of the royal lands.
We find from the report of the case of Sabariego v. Maverick (124 U. S., 261) that in 1817 the intendente at San Luis Potosí directed a sale of certain lands situate in the jurisdiction of Bexar alleged to have been
confiscated on account of the rebellion of its owner. That the intendente at that date asserted jurisdiction over confiscated lands is not inconsistent with the theory that he had none over the vacant domain. The latter was the king’s special prerogative—to be sold or to be granted as a reward of merit, or- as a matter of pure favor. The confiscated lands belonged to the royal treasury, the administration and superintendence of which was ever a peculiar function of the intendente.
In view of the obscurity in which the whole matter is involved, we conclude, that it should be presumed that the governor who caused the title in controversy in this case to be extended did not usurp the authority. At the time Spain was an absolute monarchy. The will of the king promulgated as such, in whatever form expressed, was the law of the realm. The government was substantially that of a military regime; and it is not to be presumed, that the governor of a province who stood second in authority under the king, assumed the power to make a grant of the royal domain, without being authorized to do so.
But it is insisted on behalf of the defendant in error, that the documents relied upon do not evidence an extension of the final title to the lands. We do not think that this contention can be sustained. The applicant prays the governor that he may be placed in lawful juridical possession of said lands and that the proper testimony be given to him. The governor directs the Justice of Palafox to issue to him the documents for which he makes application. In pursuance of this order, the officer delegated adjudicates to him and gives him possession of the lands, orders that “he be not despoiled of it;” that “he may make such use thereof as he deems proper, unto him, his children and assigns.” This is a final title. It is not dependent upon any condition and there is nothing on the face of it to indicate that it is subject to the approval of any higher authority. We attach no importance to the fact, that the document is not written upon stamped paper. The want of a stamp may have made proof of the instrument necessary. (Jones v. Montes, 15 Texas, 351.) But there is no question of proof in this case. So far as the record shows, the instrument was admitted without objection. The contention that the document is neither a protocol nor a testimonio cannot be maintained. The language upon which this contention is based is: “And for its perpetuation, I give him the present original title of possession with assurance of transcribing a literal testimonio of it whenever the proper paper is on hand, there being none at present in the revenue office; I, the said Judge, and my assisting witnesses signing hereto in default of a notary public, there being none according to law; which I certify.” Under the Spanish system of conveyancing, “a public instrument is divided into three classes; the original draft, register or protocol (registro), the original and the copy. The register is the original draft or writing, which is delivered, and remains in the possession of the escribano, which we also call protocol, by which doubts are determined that may be offered with respect to- the instruments which are copied from it. The deed which is immediately copied from
the protocol is the original which causes faith, inasmuch as it is authorized by the public escribano, before whom it passed, or by him to whom the protocols of the latter have passed, but if another escribano copies it, with the authority of the Judge and citation of the party, it is valid. The traslado is called the copy which is taken from this original, which ought to be done with the same circumstances of the latter.” (Azo & Manuel’s Institutes, 1 White, 297.) What we understand the officer to mean is, that he issues to Garcia the instrument as present original evidence of title, and that when stamped paper can be procured, he will issue a testimonio upon such paper. The sole advantage of the stamped paper was that when the instrument was executed upon such paper in due form and with the necessary number of witnesses, proof of its execution was dispensed with. (Jones v. Montes, supra.) We deem it a matter of no moment what the instrument may be called. In Downing v. Diaz, 80 Texas, 436, the Court say, “and we may be permitted here to say that after so great a lapse of time, with our restricted means for acquiring correct information, it would not be just to assume that what was deemed sufficient evidence of right by the officers of the former government, who must be presumed to have been familiar not only with the general laws then in force but with the special laws and usages of the time, as well as the facts attending a particular transaction, is now entitled to no consideration.”
For the reasons given we think the plaintiff in error showed title to the land in controversy and therefore the judgment of the Court of Civil Appeals and that of the District Court are reversed and judgment here rendered for him.
Reversed and rendered.