Ogden, J.
The appellant brought this suit to recover certain lands claimed by the appellee on the east end of Galveston Island.
The petition alleges that in January, 1838, in compliance with an act of the Congress of the Republic of Texas, passed for that purpose, a patent or quit-claim deed issued from the Republic to M. B. Menard, his heirs [30]*30and assigns, who, upon the formation of a joint stock company called the Galveston City Company, had transferred to it his entire interest in and to the grant made by the Congress of the Republic. It further alleges that the patent or quit-claim deed issued to M. B. Menard contained a large excess of land over and above what the patent called for, and that the patent or deed was made to contain this excess of land through the fraudulent combinations and representations of the agent of M. B. Menard and the Commissioner of the General Land Office. The act of the Congress of the Republic of 1836, relinquishing to M. B. Menard one league and labor of land on the east end of Galveston Island, and authorizing the President to issue a quit-claim title to the same, and the patent issued by the President, in comformity therewith, on the twenty-fifth of January, 1838, are made a part of the petition.
The defendant filed a general demurrer and several special exceptions to the petition, which were sustained by the court, from which judgment the plaintiff has appealed.
The title to the land in controversy issued from the Republic of Texas, as a sovereign and independent State, with every attribute of nationality and power, whose sovereignty continued for about eight years after the issuance of the title to Menard; and the grant evidenced by the patent or deed was by specific metes and bounds.
There can be no doubt in regard to the authority of the Republic to make the grant and to recognize the boundaries as described in the title; and it was immaterial whether the title issued by the President contained more land within its boundaries than designated or not, if the then existing government, with a full knowledge of that fact, recognized and approved the same. Upon the issuance of the title papers, definitely describing the land [31]*31granted, the title to the extent of the defined boundaries passed and became vested in the grantee, subject to no inquiry or dispute from a party, but the government itself. Had that title been fraudulently obtained, or had it by any fraudulent representations or combinations been made to include or cover a large excess of land, whereby the gov-ernment was defrauded and deprived of a valuable right, we think there can be no question that the Republic would have had ample power and authority to have had -that set aside, in whole or in part, as justice and equity might have demanded. But the land included within the defined boundaries had been appropriated by the grant •and issuance of the title, and it may be regarded as extremely doubtful whether the State of Texas succeeded to any right to call in question any grants of land made by the Republic, under the due forms of law.
It has not been the practice of our courts to look behind the protocol and testimonio issued by the Mexican government, if in form complying with the law, to ascertain whether the grantee was entitled to lands, or whether he had received more than he was entitled to ; on the contrary, where the protocol and testimonio have been executed in full compliance with the existing laws, and definitely describing the land granted by known and fixed boundaries, the courts have never disturbed those boundaries, though they usually contain a large excess over ■the quantity called for in the title. The Republic, by its legal and recognized agent, executed to M. B. Menard title to a certain tract of land, by known and definite -boundaries ; and in 1840 these boundaries and the entire grant was clearly recognized by the legislative authority, in the act of incorporating the city of Galveston.
In 1837 an act was passed requiring the Secretary of the Treasury to cause the island of Galveston, except the league and labor sold to M. B. Menard and his asso[32]*32dates, to be surveyed off into lots. That survey was made before the title to Menard was executed, and his-title was made to conform with that survey. The appellee then had a grant from the Congress of the Republic, which was duly surveyed off by a government surveyor, and a title was issued by the President and Commissioner of the Land Office of the Republic, and this title and the-boundaries of the land conveyed were clearly recognized by the subsequent legislation of Congress. And we think the Republic of Texas, by these acts, would have been, estopped from denying the title of appellee to the full extent of the boundaries set out in its title.
It is, however, denied that a survey was made, and is claimed, that upon the demurrer, this denial must betaken as true ; but we think a simple denial of a fact cannot put in issue the public laws of the country, or facts-of historical notoriety, nor, the evidence admitted by the-pleadings. The acts of the Congress of 1837, ordering-the survey of the island, and the fact that the island was-surveyed in compliance with the act, are not denied by the pleadings, but are quite clearly established by the laws of the Republic and the judicial history of the country. (Pasch. Dig., 4249 ; The State v. Delesdenier, 7 Texas, 102.) And it might require something more-than a simple denial to require proof of either, while the patent or quit-claim deed made a part of plaintiff’s-petition calls for the survey made by order of the government as a part of the boundaries of the land conveyed.
The Republic of Texas had conveyed-all its title to appellee, and when it surrendered its sovereignty to the United States, and became an integral part of that government, it was stipulated by the articles of annexation that the State should succeed the Republic as owner of “all the vacant unappropriated lands lying within its [33]*33limits.” The land described in the title exhibited by the pleadings in this case had been appropriated as had been hundreds of other tracts in a similar way, and it would not now be equitable or just to set aside any or all of those grants whenever and wherever they were found to contain an excess of land called for.
But the Legislature of the State passed an act in 1852 clearly recognizing all the rights conveyed under the grant to M. B. Menard in 1838, having especial reference to the title issued, and the land included therein. Again, in 1871 an act was passed granting a charter to the city of Galveston, which is declared to be a public act, aud in which the boundaries of the Menard grant are clearly recognized and in effect confirmed. And now, after a clear recognition by the government of the grant to the extent of its boundaries claimed, for over thirty years, during which time important interests have grown up, and in which innocent purchasers have become involved, perhaps upon the faith of those repeated recognitions by the government, it is too late a day to claim a cancellation of the patent, because it may contain an excess of land called for.
But it is claimed that the patent was obtained through fraud, and is therefore null and void, and that the State is not bound thereby, notwithstanding the alleged fraud, if any, might and should have been known to the government for more than thirty years.
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Ogden, J.
The appellant brought this suit to recover certain lands claimed by the appellee on the east end of Galveston Island.
The petition alleges that in January, 1838, in compliance with an act of the Congress of the Republic of Texas, passed for that purpose, a patent or quit-claim deed issued from the Republic to M. B. Menard, his heirs [30]*30and assigns, who, upon the formation of a joint stock company called the Galveston City Company, had transferred to it his entire interest in and to the grant made by the Congress of the Republic. It further alleges that the patent or quit-claim deed issued to M. B. Menard contained a large excess of land over and above what the patent called for, and that the patent or deed was made to contain this excess of land through the fraudulent combinations and representations of the agent of M. B. Menard and the Commissioner of the General Land Office. The act of the Congress of the Republic of 1836, relinquishing to M. B. Menard one league and labor of land on the east end of Galveston Island, and authorizing the President to issue a quit-claim title to the same, and the patent issued by the President, in comformity therewith, on the twenty-fifth of January, 1838, are made a part of the petition.
The defendant filed a general demurrer and several special exceptions to the petition, which were sustained by the court, from which judgment the plaintiff has appealed.
The title to the land in controversy issued from the Republic of Texas, as a sovereign and independent State, with every attribute of nationality and power, whose sovereignty continued for about eight years after the issuance of the title to Menard; and the grant evidenced by the patent or deed was by specific metes and bounds.
There can be no doubt in regard to the authority of the Republic to make the grant and to recognize the boundaries as described in the title; and it was immaterial whether the title issued by the President contained more land within its boundaries than designated or not, if the then existing government, with a full knowledge of that fact, recognized and approved the same. Upon the issuance of the title papers, definitely describing the land [31]*31granted, the title to the extent of the defined boundaries passed and became vested in the grantee, subject to no inquiry or dispute from a party, but the government itself. Had that title been fraudulently obtained, or had it by any fraudulent representations or combinations been made to include or cover a large excess of land, whereby the gov-ernment was defrauded and deprived of a valuable right, we think there can be no question that the Republic would have had ample power and authority to have had -that set aside, in whole or in part, as justice and equity might have demanded. But the land included within the defined boundaries had been appropriated by the grant •and issuance of the title, and it may be regarded as extremely doubtful whether the State of Texas succeeded to any right to call in question any grants of land made by the Republic, under the due forms of law.
It has not been the practice of our courts to look behind the protocol and testimonio issued by the Mexican government, if in form complying with the law, to ascertain whether the grantee was entitled to lands, or whether he had received more than he was entitled to ; on the contrary, where the protocol and testimonio have been executed in full compliance with the existing laws, and definitely describing the land granted by known and fixed boundaries, the courts have never disturbed those boundaries, though they usually contain a large excess over ■the quantity called for in the title. The Republic, by its legal and recognized agent, executed to M. B. Menard title to a certain tract of land, by known and definite -boundaries ; and in 1840 these boundaries and the entire grant was clearly recognized by the legislative authority, in the act of incorporating the city of Galveston.
In 1837 an act was passed requiring the Secretary of the Treasury to cause the island of Galveston, except the league and labor sold to M. B. Menard and his asso[32]*32dates, to be surveyed off into lots. That survey was made before the title to Menard was executed, and his-title was made to conform with that survey. The appellee then had a grant from the Congress of the Republic, which was duly surveyed off by a government surveyor, and a title was issued by the President and Commissioner of the Land Office of the Republic, and this title and the-boundaries of the land conveyed were clearly recognized by the subsequent legislation of Congress. And we think the Republic of Texas, by these acts, would have been, estopped from denying the title of appellee to the full extent of the boundaries set out in its title.
It is, however, denied that a survey was made, and is claimed, that upon the demurrer, this denial must betaken as true ; but we think a simple denial of a fact cannot put in issue the public laws of the country, or facts-of historical notoriety, nor, the evidence admitted by the-pleadings. The acts of the Congress of 1837, ordering-the survey of the island, and the fact that the island was-surveyed in compliance with the act, are not denied by the pleadings, but are quite clearly established by the laws of the Republic and the judicial history of the country. (Pasch. Dig., 4249 ; The State v. Delesdenier, 7 Texas, 102.) And it might require something more-than a simple denial to require proof of either, while the patent or quit-claim deed made a part of plaintiff’s-petition calls for the survey made by order of the government as a part of the boundaries of the land conveyed.
The Republic of Texas had conveyed-all its title to appellee, and when it surrendered its sovereignty to the United States, and became an integral part of that government, it was stipulated by the articles of annexation that the State should succeed the Republic as owner of “all the vacant unappropriated lands lying within its [33]*33limits.” The land described in the title exhibited by the pleadings in this case had been appropriated as had been hundreds of other tracts in a similar way, and it would not now be equitable or just to set aside any or all of those grants whenever and wherever they were found to contain an excess of land called for.
But the Legislature of the State passed an act in 1852 clearly recognizing all the rights conveyed under the grant to M. B. Menard in 1838, having especial reference to the title issued, and the land included therein. Again, in 1871 an act was passed granting a charter to the city of Galveston, which is declared to be a public act, aud in which the boundaries of the Menard grant are clearly recognized and in effect confirmed. And now, after a clear recognition by the government of the grant to the extent of its boundaries claimed, for over thirty years, during which time important interests have grown up, and in which innocent purchasers have become involved, perhaps upon the faith of those repeated recognitions by the government, it is too late a day to claim a cancellation of the patent, because it may contain an excess of land called for.
But it is claimed that the patent was obtained through fraud, and is therefore null and void, and that the State is not bound thereby, notwithstanding the alleged fraud, if any, might and should have been known to the government for more than thirty years. But we think the allegations of fraud are too indefinitely made to require an answer by defendant below; and the demurrer admits only such allegations of the petition as are well pleaded. In the first place the petition fails to allege, with sufficient definiteness, any fraudulent acts or representations which did, or could, affect the validity of the patent. It alleges in substance that the metes and bounds described in said patent were made up, without any data, from actual sur[34]*34vey; that the whole work of making out the metes and bounds was done at a great distance from the land; that the patent containing said metes and bounds was presented to the President as correct for his signature, and that the parties who made out the metes and bounds, descriptive of the land, well knew and intended that the same did and should embrace very many more acres than a league and labor. But there is no direct and specific allegation that they intended to cheat,, deceive or defraud, and there is no allegation that the President who executed the deed, or any one else, was either cheated, deceived or defrauded.
Story’s Equity Jurisprudence, 204, says, that in order to constitute a fraud ‘£ the party must be misled by the misrepresentation, for if he knew it to be false when made it cannot be said to influence his conduct, and it is his own indiscretion, and not any fraud or surprise of which he has any right to complain.” And again,- the same author says: “The party must have been misled to his prejudice or injury.”
The intent to mislead and defraud, and the fact that the party was misled and defrauded, are necessary allegations in a petition, in order to constitute a sufiicient charge of fraud, and without them a petition would be demurrable. But it is alleged, perhaps as a badge of fraud, that there was no actual survey of the land attempted to be conveyed, and no return of any field notes to the Land Office, as required by law, and without which no patent could have legally issued. At the time of the issuance of the patent to Menard the land law of the Republic had not gone into operation. It is true that it had passed the Congress a short time before, but, if in force at that time, was not then generally understood by the people, and but few if any surveyors had been appointed to make surveys or return field notes: it is therefore reasonable to presume that no surveyor had been ap[35]*35pointed under the general law for the island of Galveston, and it would now' appear exceedingly hard at this late day that appellee should lose its title for not complying with a law that could not then have been executed. But this was a special grant made by an act of the Congress definitely pointing out its location, and prescribing no other act for the grantee but the payment of the purchase money, and making it imperative upon the President to execute a title upon the payment of the required sum, and a survey by a private individual, so as to obtain the exact boundaries, would have been all-sufficient for the foundation of a valid patent. But the Congress, by the act of 1837, provided for the survey of the whole island, excepting the Menard grant, into small tracts, and it is difficult to understand how the whole balance of the island could be run off into small tracts without ascertaining the exact boundaries of the tract excepted from the general survey.
We think the laws of the Republic, the repeated decisions of this court, and the general history- of the country relating to that island, which may be judicially known to the courts, together with the admissions in the petition and exhibits in ‘this case, establish beyond controversy the fact that the island of Galveston, including the Menard grant, was surveyed before the issuance of the patent in 1838, and that the boundaries of that grant, at least in part, were those established by that survey.
The patent conveyed no inchoate right liable to be recalled or defeated at the pleasure of the government, but an absolute and indefeasible title, so far as the Republic was concerned, and the State succeeded to no authority or right to disaffirm or annul the solemn deed or grant of its predecessor. The District Court did not err in sustaining the demurrer to the petition, and the judgment is affirmed.
Affirmed.