Roberts, Chief Justice.
This action was brought under
the law of the 15th of August, 1870, entitled “An act to ascertain and adjudicate certain claims for land against the State, situated between the Nueces and Eio Grande rivers.” The claims of land are situated in the territory of Texas that formerly constituted a part of the State of Tamaulipas, in Mexico, which remained, for the most part, under the political and civil jurisdiction of that State, until possession of the same was taken by the troops of the United States, in 1846. It embraced the country between those rivers, “below a line drawn from the northern boundary of "Webb county to the mouth of the Moros creek, emptying into the Nueces river.” The act authorized “ any person who. may be the original grantee, heir, or legal assignee of any grant of land emanating from the Spanish or Mexican Governments, and having its origin previous to the 19th day of December, 1836,” within said territory, to bring a suit therefor in the District Court of Travis county. The date here mentioned was the date of the law of Texas declaring the boundaries of the State to extend to the Eio Grande, (Paschal’s Dig., art. 438,) which boundary was reaffirmed by a joint resolution of the 29th of April, 1846. (Paschal’s Dig., art., 441.) The law authorizing this suit required, that the “petition shall contain a full description of the land claimed, setting forth particularly its situation, boundaries, and extent,” and the party “ shall accompany such petition with the titles, or evidences of title, or right under which the same is held or claimed,” “'and the said District Court shall investigate the same, in [282]*282accordance with the laws of nations, the laws, usages, and customs of the Government from which the claim is derived, and the principles of equity, so far as the same are applicable, and shall give judgment for the confirmation of the same when the title is perfect, or when imperfect, when the same would have matured into a perfect title under the laws, usages, and customs of the Government under which it originated, had its sovereignty over the same not passed to and been vested in the Republic of Texas: Provided, Said title or right was originally founded in good faith.” “ The District Court shall, without the intervention of a jury, proceed to render judgment upon the pleadings and evidence in any such case, and shall, on application of either party, grant an appeal to the Supreme Court, upon such terms and conditions and requirements as appeals are granted in other cases.”
“For all claims finally confirmed under the provisions of this act, a patent shall issue in the name of the original grantee, his heirs, and legal assigns, upon presentation at the General Land Office of an authentic certificate of such confirmation, and the field-notes of the district surveyor of the county in which the land may be situated,” &c. (Paschal’s Dig., art. 7068, and following.)
Dpon the pleadings and evidence in this case, the District Court rendered a judgment in favor of plaintiffs below, and the State took an appeal to this court.
The petition describes the various steps taken by the officers of the Government, from the application to the sub-delegate judge of Reynosa, in the province of Mew Santander, on the 21st of June, 1794, up to the intendant, Salcedo, of San Luis Potosí, and to the Viceroy of Few Spain and the council at Mexico, down to the delivery of formal possession by Jose de Goseasecochea, lieutenant of Camargo, on the- 18th day of April, 1798, of a grant by sale to Don Juan Jose Balli, of the tract called “ San Salvador del Tule,” containing seventy-one and a fraction leagues of land.
The plaintiffs claim sixty leagues of this tract, by what is [283]*283termed a judicial sale, made at Reynosa, on the 4th day of September, 1829, as the property of the estate of Balh, and purchased by Trate de Cardenas for and on behalf of his mother, Donna Manuella Montemeyor, whose descendants, as heirs, now sue for it.
The papers filed as a title, or evidence of title, as prescribed by the statute, is a document in the Spanish language, containing all of the parts of a most perfect grant to Don Juan Jose Balh, if it were an original testimonio, with what purports to be, in the same language, and attached to the grant, a sale' before the alcalde of Reynosa, by him authenticated, by “ Francisco de Añeros, as general attorney of his deceased wife, Mrs. Maria Ygnacio de Trevino,” to “ Trate de Cardenas, as attorney and heir of his mother, Mrs. Manuella Montemeyor, also deceased.” It is recited in said instrument that Cardenas had obtained a judicial execution for $2,000 and upwards, which the executrix of her former husband, Don Juan Jose Balh, owes his house; that he had procured the sale of it to satisfy the debt, and had bid ofi" sixty leagues and a fraction of it for $2,500, the other eleven leagues having been disposed of otherwise. There is an indefinite designation of the locality of two of the leagues disposed of to Manuel de la Garza, but none whatever of the locality of the other nine leagues in any part of the proceedings in the case. There is an explanation in the evidence that Mrs. Maria Ygnacio Trevino, the deceased wife of Añeros, was the widow of Don Juan Jose Balli, but none whatever of the authority of Añeros to make the sale as her general attorney, or of any of the judicial proceedings upon which the sale assumes to he based.
The Spanish title closes with the instrument evidencing the act of seizure to Balli performed by the lieutenant, Goseasecochea, with a recital subjoined, that the original papers are delivered to Juan Jose Balh. The instrument of sale closes, as usual, with a certificate of its being a correct copy of the original protocol of records of 1828 by Ignacio [284]*284Cano, judge delegate of Reynosa, with his attendant witnesses, on the 11th day of September, 1829.
Both the grant and the transfer, in this condition, have appended to them a certificate or authentic act by Francisco Garcia, alcalde of Reynosa, with witnesses, Leal and Valdes, on the 15th day of Dbvember,_1849, reciting as follows: “ The foregoing attested copy agrees with its original, which remains in possession of Don Jose Ma. Cardenas. It was copied at the verbal request of the said Cardenas, and other joint parties. It is faithfully copied, corrected, and compared.”
To the foregoing, all written in Spanish, is annexed a certificate of the commissioner appointed to investigate land titles of this kind, under the act of the 8th of February, 1850,) Paschal's Dig., art. 4440, and following,) which reads as follows, written in English :
“ I hereby certify the above to be a true copy of an original testimonio placed in my hands by Jose Ma. Cardenas, for himself and as agent for other heirs. August 2,1851. I. B. Miller, Com’r.”
Then follows a certificate, by M. Hargravi, clerk of the County Court of Hidalgo county, that the above certificate of Miller “ is a true copy, by me compared, of a certificate attached to a copy of the salt lake grant,” dated 27th of May, 1856.
To all this is appended rtwo certificates by A. Rutledge, clerk of the County Court of Hidalgo county; one on the 2d day of March, 1871, that the foregoing instruments had been filed for record, and recorded in his office on the 1st and 2d days of March in said year, and the other on the 27th day of August, 1872; “that the above and foregoing is a true copy of the original grant by the Crown of Spain to Juan Jose Balli of a. tract of land, containing seventy-one and more sitios, situated in Hidalgo county, as taken from the record, book B, of real estate of said county.”
According to these certificates, then, the evidence of title [285]*285filed with the petition was a copy three degrees from the original papers in the hands of Cardenas in 1849, and not of the protocol in the alcalde’s office, at Reyn osa; that is to say, first, the copy, hy Garcia, of the original papers, in 1849 ; second, a copy of that copy, by Miller, in 1851; and, third, a copy of the Miller copy, recorded, without any proof to admit it to record, in 1871, in Hidalgo county, and a copy of that record, certified to by the cleric of the County Court of .said county, A. Rutledge, in 1872. This Rutledge copy is the one filed with the petition, as appears by the filing of the clerk thereon, “ 5th of August, 1872;” this, also, is the copy which, by the agreement of counsel for the State, the Attorney General, was detached from the petition, and attached to the interrogatories accompanying the commission of isoah Cox, for the examination of the witnesses in giving their testimony.
It is true, that one of the witnesses, Caravajal, says that the Miller copy was before him when he was giving his testimony ; but his statements, as to how it was certified, shows that it was the Rutledge copy of the Miller copy, unless there was, in fact, then present another copy, to wit, the Miller copy, which was not before the court at the trial, and had not been filed with the petition. Another witness, Gomez, says that there exists a copy of the title and sale authenticated by Garcia, and that said copy is “ now in the hands of Salvador Cardenas.” If that is correct, that copy was certainly not the one filed with the petition, and afterwards adduced in evidence before the court on the trial.
Such points only will be adverted to as are deemed material. The first one is, that the State, by her counsel moved to dismiss the case, because the plaintiffs had not filed with the petition such a title, or evidence of right, as was required by the statute. This was correctly overruled by the court, because the documents filed, though not the original title, were sufficient to fully inform counsel for the State of the character of title and the plaintiffs’ claim to it; and it can [286]*286hardly be considered as consistent with the just and liberal intention of the Q-overnment of Texas in passing this law, to debar a party from bringing such a suit, who, from misfortune, or other cause, could not produce the original title or part of it, but who could establish its validity by competent evidence. (Paschal’s Dig., art. 7068.)
Objections were taken, however, to the mode adopted of proving the title, and to testimony of the witnesses, on the trial of the case, of a much more serious character, which "bring in review the competency and sufficiency of the evidence adduced to establish a perfect title, as claimed for it by the plaintiffs.
Had the document filed been an original testimonio of a Spanish grant of the date of 1798, it otherwise contains all of the requisites of a perfect title, under the laws of Spain relating to the Indies, of that date; and with some proper evidence of its genuineness, as has always been required by the decisions of this court, it would have been admissible in evidence, in support of plaintiffs’ claim, not as a composition, but as an absolute and original sale, in fee simple, of the lands of the Crown, having been approved by the Council of the Exchequer, in Mexico, and the grant having been extended by the intendant of San Luis Potosí, and having passed through all the formalities required in such grants. (See White’s Recop., sec. 81, marg. p. 57, and preceding royal orders, which are not. dated in White, but which, it is believed, should bear date in 1786, the time when the intendancies were established for the granting of lands; Id., marg. p. 54; Andrews v. Marshall, 26 Tex., 215; Titus v. Kimbro, 8 Tex., 210; Word v. McKinney, 25 Tex., 258.)
Being a copy of the original papers of a title, the third time copied, one after and from the other, the question is, was it so proved on the trial as to admit it in evidence, and to be, as proved, considered competent and sufficient evidence to establish the title ? It is to be noticed that it lacks the last official act which is usually found in a testimonio, which is, [287]*287the certificate of the alcalde of Reynosa, that the instrument delivered to the interested party, at the date of its completion, is a correct copy of the protocol or original title remaining in his office. It is not even a second copy, certified to at a subsequent time, by another alcalde, as being taken from the original in his office. But, from the appended certificate, it would appear that Cardenas presented to Garcia, the alcalde of Reynosa, the original title papers that had been delivered to Balli by the lieutenant, and the annexed transfer made before Cano, in 1829, that he, Cardenas, had in Ms own possession, and procured him to have it copied and certified to as a correct copy, not of the protocol in Ms office, but of the original papers constituting the title in the hands of Cardenas. It is not perceived how such a certificate could give any legal authenticity to a copy thus certified to, as it would not appear therefrom that the original was an areMve in his office, or in anywise under his control. It would be the same as if one now owning a deed should get it copied and certified to by a clerk or keeper of records, without having the deed recorded, or without its being certified to be a deed recorded in his office. It would require a special enactment, out of the ordinary course of authenticating instruments by the keepers of public records, to give such a certificate any weight as evidence whatever. And the same may be said of the certificate of Miller to the copy. The proof of the handwriting of Garcia and his witnesses, and of Miller, and the capacities in wMch they acted, winch, in fact, was not made on the trial, in and of itself, amounted to notMng, in the absence of a law authorizing them to make such certificates. The recording in Hidalgo county, and the certificate by Rutledge, the county clerk, was equally inefficacious, because it was not proved up for record, even had it been a testimonio, and much less being such a copy of a copy, as shown upon its face. (Lambert v. Weir, 27 Tex., 364; Herndon v. Casiano, 7 Tex., 333.) In a case in the Supreme Court of the United States, wherein a copy of a copy was allowed to be given in evidence, in the [288]*288establishment of a Spanish grant, the copies were certified to by persons who were legally authorized to give out and authenticate the copies respectively, each one being the custodian of the instrument, as an archive of his office, at the time it was so copied and certified to. (United States v. Delespine’s Heirs et al., 12 Pet., 654.) Generally, it is the fact that it is a record or archive of an office that makes a copy certified to by the legal custodian of such record or archive stand in the place of the original, where it is shown to be lost, or cannot be produced. (Dikes v. Miller, 25 Tex.Supp., 290; Mapes v. Leal’s Heirs, 27 Tex., 349.)
Plaintiffs attempted to prove the loss of the testimonio, and a copy of it by Caravajal. It is evident, however, that the paper that he regarded and spoke of as the testimonio, was the Garcia copy of the testimonio, made in 1849, and that, and not the original testimonio, issued in 1798, was delivered to Miller, and said to have been lost; and therefore,, if sufficient proof of search and loss had been made, which could hardly be said in this case, and Caravajal had examined and compared the Miller copy with that which was given to Miller, which he did not do, it would still only be proof of a copy of the copy that Garcia made. Had the Garcia copy been, ih fact, the original testimonio, it might have been competent to prove that the Miller copy was a correct copy of it, with such other proof as was necessary to establish the genuineness of the original, without resorting to the proof of the protocol in the archives of Reynosa, if it is there, the testimonio being lost. (Lewis v. San Antonio, 7 Tex., 316.)
Plaintiffs also attempted to prove this title by an “ examined or sworn copy” of the protocol in the archives of Reynosa. That, they failed to do with reasonable certainty. The witness, Caravajal, in speaking of the Rutledge copy of the Miller copy, winch was before him when he was giving his testimony, being the same that was filed with the petition, says, that “in 1855 or in 1857 he went with Robert II. Hord and Jesus and José Maria Cardenas to the jurgado of Rey[289]*289nosa, and was satisfied by the alcalde and secretary that the copies of titles and sale of San Salvador del Tule were true and correct testimonios, and that the original protocol existed in the archives of Beynosa.” He must have been here referring to the Miller copy, as that which he had previously spoken of as the original testimonio had been given to Miller in 1851, unless he referred to an original testimonio then in the hands of the Cardenas, which Garcia had copied in 1849, which was not produced or accounted for on the trial. When he speaks of having often seen the original title in and before 1851, he evidently refers to the Garcia copy made in 1849; and if he means that he had seen the original papers that Garcia copied, he does not state that he ever compared them with the Garcia copy or any other copy, nor does he state that he compared the Garcia copy with the Miller copy, or that with the Butledge copy that was before him when he gave his testimony. Furthermore, it could not well be inferred from this evidence, that he had personally compared the Miller copy that was in evidence with the protocol in the archives of the jurgado of Beynosa, so as to entitle it to be received in evidence as an examined or sworn copy of the original protocol. He does not say that he ever saw or read the protocol in Beynosa or at any other place.
The same defects in proof apply to the transfer of the sixty leagues (and a fraction) from Añeros to Trute de Cardenas. The proof of that is even more unsatisfactory, because it is not shown how Añeros was or could' be the general attorney of his deceased wife, Trevino, in making the sale; and there was no evidence of any such judgment or other judicial proceeding, as ivas assumed in the instrument itself, to be the foundation of and authority for the sale, as the property of the estate of the grantee, Don Juan José Balli, to satisfy a debt due Mrs. Manuella Montemeyor. Bor was there any allegation in the petition or proof on the trial that there existed in the State of Tamaulipas any law which made such a transfer by itself, even as between proper parties, [290]*290acting in their own behalf, evidence of a judicial sale, contrary to well-established rules of law in this State. It has been held that “ proofs are made in our courts conformably to the common-law rules of evidence. These, being the law of the forum, must in general govern.” (Herndon v. Casiano, 7 Tex., 332.) It is evident, then, that the title was not established by any of the modes of proof adopted by the plaintiffs that have been referred to.
The petition alleges that the testimonio was lost, and it is stated by the witness that the protocol exists in the archives of Eeynosa, in Tamaulipas, Mexico. If these -facts are as alleged and stated, they must have been well known to the plaintiffs before the institution of this suit, and an examined or sworn copy could easily have been produced, or a second copy, certified by the keeper of the archives, where the protocol is, which, with such proof as might have been necessary to establish the genuineness of the original title, might have been produced; and the same may be said of the transfer from Aneros to Cardenas. (Smith v. Townsend, Dallam, 570; Paschal v. Perez, 7 Tex., 348.)
It is said by Chief Justice Marshall, in the case of Church v. Hubbart, that “ foreign judgments are authenticated by, 1st, an exemplification under the great seal; 2d, a copy proved to be a true copy; 3d, the certificate of an officer authorized by law, which certificate must itself be properly authenticated. These are the usual, and appear to be the most proper, if not the only, modes of verifying foreign judgments. If they be all beyond the reach of the party, other testimony inferior in its nature might be received. But it does not appear that there was any insuperable impediment" to the use of either of these modes, and the court cannot presume such impediment to have existed.” (2 Cranch, 176.)
It is true, by the uniform decisions of this court, when a testimonio which is an original copy issued contemporaneously with the making of the protocol, and is the evidence of title [291]*291given to the grantee, is offered in evidence, it is required to be accompanied with some evidence of its genuineness, from which, it might follow that a second copy, issued and certified to at a later date by the keeper of the archives, or a sworn copy from the original archives, might likewise be accompanied with some such confirmatory evidence of the genuineness of the grant, the exact amount or character of which has not been laid down by our decisions, but must, from the very nature of the case, be leffc to be determined as the cases requiring it may be presented. (Paschal v. Perez, 7 Tex., 359; Word v. McKinney, 25 Tex., 268, 269; Smith v. Townsend, Dallam, 572; Owings v. Hull, 9 Pet., 625.)
The objections taken to the title, and other evidence of the plaintiffs, need not be noticed in detail, as they embrace all of the defects that have been referred to, and many more, which are enumerated and saved by bills of exception, contained in the record. One of them is, that Noah Cox, who was appointed to take the depositions of the witnesses by agreement of counsel, put down the answers of Mexicans in English, thereby becoming an interpreter, without having been sworn as such. To which it may be answered, that he was sworn faithfully to perform his duty under the commission ; and the agreement for him to be appointed, expressly provided for the answers of the witnesses to be written in English. Had the objection been made to the depositions upon the ground that Noah Cox was not an officer authorized by law to take depositions, and that therefore the court could not authorize him to do it, though it was agreed to by the counsel, it might have been difficult to find a satisfactory answer to the objection.
The answers of the witnesses, stating that there was an original protocol, and a record of the judicial proceeding relating to the sale of the land, in the office of the alcalde at Eeynosa, were objected to. It is certainly not generally competent to prove a record that is still in existence by oral testimony, and no reason is seen why this should be an ex-? [292]*292ception to the general rule. It might he proved as an incidental fact, under some circumstances; hut certainly not as a means of establishing a title of record, in lieu of the ordinary modes of proving records.
It may be proper to notice that the judgment is in favor of the plaintiffs, for the whole tract, seventy-one and a fraction leagues of land, whereas the petition claims only sixty and a fraction leagues. Neither the petition nor the proof shows the locality of nine of the leagues, and very indefinitely, that of the other two of the eleven leagues not claimed by the plaintiffs. It is not reasonable that the law contemplated the issuing a patent for the whole of any large tract of land for more than was claimed, and shown by the proof to belong to some one who had a right to sue for it; nor to grant a patent at all until there was a legal survey of that part of the tract which was distinctly set out, sued for, and recovered. Without some specific designation of the part of the tract that was recovered, in the judgment of affirmance, when only part of the tract was recovered, the surveyor would have no legal direction in malting a survey, preparatory to the issuance of the patent, as required by the law. authorizing the suit. (Paschal’s Dig., art. 7075.) The eleven leagues not sued for might-revert to the State as public domain, and should not therefore be patented to “the original grantee, his heirs and legal assigns.” (Paschal’s Dig., art. 7074.)
As to persons who may have locations or patents upon the same land prior to the institution of this suit, the law provides for the preservation of their legal rights, by excepting them from the operation of the patent that may he issued for the old grant in this suit, and therefore it may not he impoz’tazzt to designate their claims in this proceeding.
It may he worthy of attention that plaintiffs’ own witnesses prove, without objection on their part, that Mrs. Manuella Montemeyoz’, for whose benefit Trute de Cardenas is said to have bought the lazzd, left a will, and that her estate [293]*293was distributed under it, and still the plaintiffs claim title simply as her heirs, or rather as the descendants of her heirs.
In considering the competency and sufficiency of the evidence to establish this title, it is proper to embrace the proof of possession adduced on the trial. Upon this subject, it may be remarked that it is the obvious intent of this law, -which authorizes this suit, to benefit the parties interested by a confirmation of grants, either perfected or commenced, and progressed with to an extent that would reasonably have insured its consummation, had there been no change of Government, and not to make a new grant; otherwise it might have been obnoxious to the exception taken to the petition by the counsel for the State—that it was in violation of the Constitution of the State, then existing, which provided that “the Legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the land office, except to actual settlers upon the same, and in lots not exceeding 160 acres.” (Sec. 6, art. 10, Const. 1869.) It, at any rate, would have been in violation of the long-settled policy of the State, in respect to the amount granted, and the consideration for which it is made; for the State has never expressly stipulated for the making of a grant in consideration of possession, except to pre-emptors, in small quantities. To such considerations may be added the fact, that in the law authorizing this suit for confirmation it was required that the title, or the evidences of the title, or right claimed should be filed with the petition. (Paschal’s Dig., art. 7068.) This was to be the case, whether the title was perfect or imperfect.
The evidences of a right by prescription, under the Spanish law, must have consisted for the most part of the evidence of witnesses, which could only have been presented in the shape of affidavits; and had that been contemplated as the evidences of right or title to he filed with the petition, it is reasonable that it would have been indicated by other terms than those used in the statute. Furthermore, the act authorized such [294]*294person only to bring this suit, as was “ the grantee, heir, or legal assignee of any grant of land emanating from the Spanish or Mexican Governments, and having its origin previous to the 19th of December, 1836.” This language would ordinarily import a paper title of some sort that was capable of being filed in court with the petition, whether it was perfect or imperfect, according to the laws and customs under which grants of land (were handed out or) emanated.
The possession of this tract of land, by those claiming to be the owners of it, was proved with as much certainty as could now be expected, from 1798 to 1836, and from 1850 to the time of the trial, excepting a period during the late civil war. Such proof, though it may not be, in this proceeding, under the law authorizing this suit, an independent and sufficient ground for confirming the title, still it is, or may be, very important evidence in support of the good faith of the claim, and of the genuineness of any title emanating from the Spanish Government that may be properly produced. (Lewis v. San Antonio, 7 Tex., 302.) From forty years’ possession, a right, as against the Government, might have accrued under the Spanish and Mexican Governments, under which the party in possession might defend his right to the land by prescription, as against a subsequent grantee of the same land. (Id., 311; White’s Recop., 1 vol., 95.) If plaintiffs have such a right, they can rest and rely upon it. It does not follow from that, however, that the State of Texas proposes, by the enactment of the law authorizing this suit, to be put into affirmative action in making a grant, and in issuing a patent as evidence of it, to authoritatively protect such a claim of right. We do not so understand the law. Because, then, the proof admitted and excepted to was not competent and sufficient to establish the title, under the law authorizing this suit, as claimed by the plaintiffs, the judgment is reversed and the cause remanded.
Reversed and remanded.