Ogdeh, J.
The defendant in error instituted suit in the district court for Travis county, in 1858, against the plaintiffs in error, to cancel a deed of defendants below, and to quiet his title to a certain lot of land in the city of Austin. Subsequently the cause was removed, by change of venue to Williamson county, where, in September, 1858, judgment was rendered for the plaintiff below, for the land, and for one thousand dollars damages. In November of the same year the plaintiff and defendants entered into an agreement, by which the plaintiff remitted the damages as to all the defendants, and, in consideration of which, the defendants waived all defects in the service of the original process on either or any of them, and agreed to bring said suit, by writ of error, to this court, on- the merits of the respective titles of said parties, plaintiff and defendants. This agreement seems to have been made for a valuable consideration, and was made a matter of record in the cause. We are, therefore, of the opinion that it must be regarded as binding on both parties, so far as their rights in this suit are concerned, and to the extent of the agreement.
[603]*603On the trial of the cause the court appointed a guardian ad litem to represent the minor defendants. The power of the court to appoint a guardian ad litem for parties to a suit who are minors, and who are unrepresented, is not questioned. This is a discretionary power, vested in the courts from the necessity of the case, and that discretion must rest in the sound judgment of the court; and, under ordinary circumstances, the exercise of that discretion is not the subject of revision. Fraud, or collusion-, or gross misconduct, of the guardian ad litem, might be a sufficient cause for setting aside any judgment or decree entered up against minors; but it is believed that where a court has performed that duty, and the guardian so appointed has accepted the trust, his acts are good, and binding upon the minors for whom he acts, and especially if those acts are not impeached for fraud, and more especially if they are first brought in question in'this court.
The exceptions to the service in the lower court were expressly waived by the agreement, and we must now regard the parties properly before this court, for the purpose of contesting the merits of their respective titles- to the land in question; and it may be remarked that the original object of this suit was to test the titles of the parties, and not to inquire into the fact of an outstanding title in some one else. But if this suit had originally been brought in the nature of trespass to try title, against the defendants in possession, then the agreement would shut out all investigation of any title not in the immediate parties.
The plaintiffs in error claim that the court erred in permitting the plaintiff below to read to the jury the deed from Tannehill to plaintiff, the same not having been filed among the papers of the cause, and notice given to the opposite party according to law. This objection might have been good, had it been taken below, and an exception to the rulings of the court been taken at the time; but as no exception was taken, this court will presume that the necessary notice was given, or that the notice was waived. [604]*604(Fulton v. Bayne, 18 Texas, 56.) Besides, the agreement by plaintiffs in error to bring the cause to this court to be tried on its merits would imply a waiver of that objection.
We think the demurrer to the plaintiff’s petition was properly overruled. The petition alleged the fact that defendants were claiming title from Goucher, in fraud of his rights, and that the claim was a cloud upon his title and a damage to his rights in the land. This we deem a sufficient cause of action under the repeated decisions of this court. Nor do we think the plaintiff, in bringing a suit of this character, would be compelled to set out and describe the defendants’ claim, or title, with the same particularity as' he would his own, as in many cases it would be impossible to know the particular character of the claim with which he is threatened; and it may also be urged that the agreement has cured the defect, if any, in this particular. We do not consider this an action for slander of tille, technically so called, when malice must be alleged and proved; but more particularly an action to clear or quiet title; and if, as is claimed for the defendants below, or rather for a portion of them, that they were incapable of slandering plaintiff’s title, then their guardian ad litem had only to file for them a disclaimer, and they would have been dismissed from the suit. But we think the parties are now before the court, asking for an adjudication of the merits of their respective titles.
In 1839, the Congress of the Republic of Texas passed an act for the permanent location of the seat of government, which act appointed a commission to select a site for the capital, and provided for the appropriation of a certain quantity of land for that purpose; and also provided, in case the land selected for the seat of government should belong to individuals, that a special tribunal should be assembled at the county seat of the county in which the land might be situated, for the purpose of formally condemning the same for the use and benefit of the government. The commissioners made a selection of about one and a half leagues of [605]*605land, the present site of the city of Austin. The special court for the condemnation of the land was convened at Bastrop, the then county seat of the county in which the land was situated. All the formalities of the law of Congress were strictly observed, o the land was formally condemned for the use of government, and a deed for the same was duly executed by the sheriff of Bastrop county to the Republic of Texas, in strict compliance with the law.
In 1854, the defendant in error and J. C. Tannehill purchased from the State of Texas the land in question, and received a patent for the same; and Tannehill subsequently conveyed his interest to the defendant in error. This is the title of defendant in error, and upon which he obtained a judgment against the plaintiffs in error, who claim the same land by virtue of a patent from the State of Texas to the heirs of Samuel Goueher, dated in 1841. This patent issued upon a location and survey of one-third of a league of land, which was made in 1838, by virtue of a headright certificate issued to Samuel Goueher. The certificate of Goueher was located before the condemnation of the land for the government. The location and patent appear to be regular, and, so far as can be known from the imperfect evidence in the transcript, are in conformity with the law; but the evidence (if it can be called evidence) is of such a character that no court would be justified in passing upon its genuineness, or consider it sufficient to establish any rights for the plaintiffs in error. And, indeed, it was introduced in the court below by the plaintiff, not for the purpose of establishing any rights, or as the evidence of any rights in the defendants, but simply to prove that defendants were attempting to assert a title to the land claimed by him. This character of evidence might possibly be sufficient for the purpose for which it was made, but for no other.
The plaintiff below proved up his title from the State beyond a doubt, and the only question that could possibly arise to prevent his from being a perfect and indefeasible title, presents itself in the [606]
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Ogdeh, J.
The defendant in error instituted suit in the district court for Travis county, in 1858, against the plaintiffs in error, to cancel a deed of defendants below, and to quiet his title to a certain lot of land in the city of Austin. Subsequently the cause was removed, by change of venue to Williamson county, where, in September, 1858, judgment was rendered for the plaintiff below, for the land, and for one thousand dollars damages. In November of the same year the plaintiff and defendants entered into an agreement, by which the plaintiff remitted the damages as to all the defendants, and, in consideration of which, the defendants waived all defects in the service of the original process on either or any of them, and agreed to bring said suit, by writ of error, to this court, on- the merits of the respective titles of said parties, plaintiff and defendants. This agreement seems to have been made for a valuable consideration, and was made a matter of record in the cause. We are, therefore, of the opinion that it must be regarded as binding on both parties, so far as their rights in this suit are concerned, and to the extent of the agreement.
[603]*603On the trial of the cause the court appointed a guardian ad litem to represent the minor defendants. The power of the court to appoint a guardian ad litem for parties to a suit who are minors, and who are unrepresented, is not questioned. This is a discretionary power, vested in the courts from the necessity of the case, and that discretion must rest in the sound judgment of the court; and, under ordinary circumstances, the exercise of that discretion is not the subject of revision. Fraud, or collusion-, or gross misconduct, of the guardian ad litem, might be a sufficient cause for setting aside any judgment or decree entered up against minors; but it is believed that where a court has performed that duty, and the guardian so appointed has accepted the trust, his acts are good, and binding upon the minors for whom he acts, and especially if those acts are not impeached for fraud, and more especially if they are first brought in question in'this court.
The exceptions to the service in the lower court were expressly waived by the agreement, and we must now regard the parties properly before this court, for the purpose of contesting the merits of their respective titles- to the land in question; and it may be remarked that the original object of this suit was to test the titles of the parties, and not to inquire into the fact of an outstanding title in some one else. But if this suit had originally been brought in the nature of trespass to try title, against the defendants in possession, then the agreement would shut out all investigation of any title not in the immediate parties.
The plaintiffs in error claim that the court erred in permitting the plaintiff below to read to the jury the deed from Tannehill to plaintiff, the same not having been filed among the papers of the cause, and notice given to the opposite party according to law. This objection might have been good, had it been taken below, and an exception to the rulings of the court been taken at the time; but as no exception was taken, this court will presume that the necessary notice was given, or that the notice was waived. [604]*604(Fulton v. Bayne, 18 Texas, 56.) Besides, the agreement by plaintiffs in error to bring the cause to this court to be tried on its merits would imply a waiver of that objection.
We think the demurrer to the plaintiff’s petition was properly overruled. The petition alleged the fact that defendants were claiming title from Goucher, in fraud of his rights, and that the claim was a cloud upon his title and a damage to his rights in the land. This we deem a sufficient cause of action under the repeated decisions of this court. Nor do we think the plaintiff, in bringing a suit of this character, would be compelled to set out and describe the defendants’ claim, or title, with the same particularity as' he would his own, as in many cases it would be impossible to know the particular character of the claim with which he is threatened; and it may also be urged that the agreement has cured the defect, if any, in this particular. We do not consider this an action for slander of tille, technically so called, when malice must be alleged and proved; but more particularly an action to clear or quiet title; and if, as is claimed for the defendants below, or rather for a portion of them, that they were incapable of slandering plaintiff’s title, then their guardian ad litem had only to file for them a disclaimer, and they would have been dismissed from the suit. But we think the parties are now before the court, asking for an adjudication of the merits of their respective titles.
In 1839, the Congress of the Republic of Texas passed an act for the permanent location of the seat of government, which act appointed a commission to select a site for the capital, and provided for the appropriation of a certain quantity of land for that purpose; and also provided, in case the land selected for the seat of government should belong to individuals, that a special tribunal should be assembled at the county seat of the county in which the land might be situated, for the purpose of formally condemning the same for the use and benefit of the government. The commissioners made a selection of about one and a half leagues of [605]*605land, the present site of the city of Austin. The special court for the condemnation of the land was convened at Bastrop, the then county seat of the county in which the land was situated. All the formalities of the law of Congress were strictly observed, o the land was formally condemned for the use of government, and a deed for the same was duly executed by the sheriff of Bastrop county to the Republic of Texas, in strict compliance with the law.
In 1854, the defendant in error and J. C. Tannehill purchased from the State of Texas the land in question, and received a patent for the same; and Tannehill subsequently conveyed his interest to the defendant in error. This is the title of defendant in error, and upon which he obtained a judgment against the plaintiffs in error, who claim the same land by virtue of a patent from the State of Texas to the heirs of Samuel Goueher, dated in 1841. This patent issued upon a location and survey of one-third of a league of land, which was made in 1838, by virtue of a headright certificate issued to Samuel Goueher. The certificate of Goueher was located before the condemnation of the land for the government. The location and patent appear to be regular, and, so far as can be known from the imperfect evidence in the transcript, are in conformity with the law; but the evidence (if it can be called evidence) is of such a character that no court would be justified in passing upon its genuineness, or consider it sufficient to establish any rights for the plaintiffs in error. And, indeed, it was introduced in the court below by the plaintiff, not for the purpose of establishing any rights, or as the evidence of any rights in the defendants, but simply to prove that defendants were attempting to assert a title to the land claimed by him. This character of evidence might possibly be sufficient for the purpose for which it was made, but for no other.
The plaintiff below proved up his title from the State beyond a doubt, and the only question that could possibly arise to prevent his from being a perfect and indefeasible title, presents itself in the [606]*606act of condemnation by the Republic of Texas, of the land now occupied as the seat of government. The Constitution of the Republic of Texas provided that “ no person’s property shall be taken for public use without just compensation.” This clause manifestly intended to reserve to the sovereign power the right to appropriate private property for public use, whenever it might become necessary; but • guaranteed to the citizen just compensation. This right of governments is maintained by all writers on political sovereign power, and is the general language of the courts. (Smith’s Commentaries, § 311; Starkie on Evidence, 378; Cochran v. Van Surlay, 20 Wend., 365; Kemper v. Corporation of Victoria, 3 Texas, 137; Hosner v. De Young, 1 Texas, 764; Hart v. Gibbons, 14 Texas, 213.)
There are many authorities maintaining the doctrine that com-. pensation is not necessary in order to vest in the sovereign a complete title to all property condemned for public use, provided that due provision is made for future payment. (Rogers v. Bradshaw, 20 Johnson’s R., 743; Smith’s Commentaries, 326.) The land in question was regularly condemned for the use and benefit of the government in 1839; was then taken possession of and appropriated for the seat of the general government; liberal provision was made for the compensation of the individual owners; and we are now unable to find any power or authority to revoke or annul that appropriation.
A question is raised as to the legality, or rather the formality, of the condemnation, under the law passed for that purpose. A special tribunal was created; the owners of the land, so far as known, were duly cited; the titles were investigated, and the value ascertained, and, under the decree of this tribunal, the deed was executed to the government. This was a proceeding in rem, technically so called, had by a special tribunal, from whose decree there was no appeal. This judgment or decree must be held as good and binding, as against the world, “ and may be evidence [607]*607against one who was not a party thereto, and who does not claim in privity with the party.” (Starkie’s Ev., 340.) The tribunal, constituted for the purpose, adjudged the land claimed by the Goucher heirs' to he the property of Edward Burleson. We are not informed upon what evidence this judgment was founded, nor by what kind of transfer the title passed from Goucher to Burleson ; nor do we consider it material now to know, since the title has passed to the government, and from the government to third parties and innocent purchasers. It will he observed that no title was issued to the Goucher heirs, until about two years after the condemnation and appropriation by the government, and this co'uit has repeatedly decided that, until a formal patent has issued, the government has the right to appropriate the land, notwithstanding a location may have been made. (Kemper v. Corporation of Victoria, 3 Texas, 135; Hart v. Gibbons, 14 Texas, 213; Hosner v. De Young, 1 Texas, 764; Warner v. Shuman, 5 Texas, 441; Lewis v. Wilcox, 11 Texas, 564.) Under these authorities we feel warranted in deciding that the government had the power and right to condemn and appropriate the land when, and in the manner she did, and that the law passed for that purpose was fully complied with; and that, therefore, from the act of condemnation and appropriation, the land was separated from the public domain, and could not be appropriated by individuals. It follows that the patent issued to the heirs of Goucher in 1841, was issued without authority of law, and therefore conveyed no title or rights which can be set up against the State or its assignee.
The plaintiffs in error may have a right to equitable relief from the State, but, in our opinion, the Legislature,, and not the courts, should be applied to for that rélief.
There were other questions raised in the pleadings, which we do not consider necessary now to examine, as the questions already decided dispose of the cause. We see no material error in the rulings of the court, or the instructions to the jury, that have not [608]*608been cured by the remittitur and waiver. The judgment is therefore affirmed.
Affirmed.