Texas-Mexican Railway Co. v. Locke
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Opinion
Stayton, Chief Justice.
This action was brought by appellant to compel the surveyor to survey certain lands located by it by virtue of genuine land certificates of which it was the owner.
Persons claiming the lands covered by the locations were with the surveyor made defendants, and no question is made as to the right of appellant to have the surveys made and field notes returned to the General Land Office if the lands were vacant and unappropriated public domain.
The locations were made on and subsequent to January 27, 1882.
The defendants who claim the lands allege that all the lands located by appellant cover all or parts of four eleven league rants made by the [386]*386State of Coahuila and Texas on April 18, 1834, to Francisco Pereya, Narcisso, Antonio, and Pedro Aguirre.
The land claimed through grant to Francisco Pereya is in part in Zavala County and in part in Dimmit County and on the western margin of the Nueces River, while that claimed under grant to Pedro Aguirre is entirely in Zavala County and on the west margin of the same river.
The two grants claimed to have been made to Narcisso and Antonio Aguirre are on the east side of the Nueces River, the latter in Zavala and the former in that and Dimmit counties.
The defendants are admitted to deraign title to these several grants, but the validity of the grants now or at any former period is denied by appellant.
The controversy in the court below was as to the existence of these grants and their validity, and the questions presented arise upon rulings of the court below on the admission of testimony and upon the findings upon the evidence admitted.
Appellees introduced in evidence a report made by the Secretary of State for the State of Coahuila and Texas to the political chief of Bexar, of date January 2, 1833, giving a statement of a number of colonial contracts made under decrees of March 24, 1825, and April 28, 1832, among which was stated to be a contract Avith Diego Grant and Juan Carlos Beales for the introduction of eight hundred families.
They also offered another report of same date made by the same officer to the same political chief showing a large number of concessions to purchase lands, among which were concessions to the persons before named under which they were each entitled to purchase eleven leagues of land.
The papers offered were thus certified by the Spanish translator and Commissioner of the General Land Office:
“ State or Texas, General Land Orrice,
“Austin, October 20, 1883.
“I certify that the foregoing is a correct translation of two Spanish printed statements existing in the file of annual reports of colonization contracts and land grants by the executives, made by the Secretary of State of Coahuila and Texas to the political chief of Bexar, which file was transferred from the office of said political chief to the office of county clerk of Bexar County and thence to the General Land Office, and is now in existence in file 52 of the Spanish archives of this office.”
This evidence was objected to on the sole ground that it Avas irrelevant. Those papers were not irrelevant, but tended to sIioav that the concessions through Avhich appellees claim were made, and made before the dates these reports bear date, and further that the colonization contract with Grant and Beales was in existence when the reports were made.
Taken in connection with the laws then in force they further tended to show that the colony as well as the lands in controversy were to some [387]*387extent within the territory over which the political chief of the department of Bexar exercised jurisdiction.
Appellees next offered in evidence a copy certified from the General Land Office of what purported to he the application of Grant and Beales for a colonization contract, of date October 5, 1832, and in connection with this a copy of the colonization contract certified in the same manner and bearing date October 9, 1832.
The application was made to the Governor of the State, and so much of it as has bearing on the questions raised in this case is as follows:
“Most Excellant Sir: Diego Grant, a citizen of the State and naturalized in the Republic, and Juan Carlos Beales, a native of England and married to a Mexican woman, with children born in the country, with the greatest respect would represent to your excellency:
“ That whereas the colonization law of April last passed invited all classes of persons, whether national or alien, tu project subject to said law the settlement of the vacant lands of the State, the undersigned have determined to introduce into the department of Bexar eight hundred honest industrious families from Europe, thus contributing to the fulfillment of the object of said law, and to converting into settlements useful to the State and Mexican nation the vacant and desert lands which in their present condition can be of no advantage whatsoever. In these terms and with the object of complying with the federal and particular laws in this enterprise to which we intend to devote ourselves, your excellency is requested to concede to us for the establishment of the families aforesaid the territory comprised within the following boundaries:
“Taking the line reputed as the dividing line of this State and that of Tamaulipas between the Rio Grande and ETueces River, and following the left bank of the Rio Bravo up to the twenty-fourth degree west of Washington, thence up the said meridian to intersect the twenty-ninth of latitude and following the same to the Eiueces River, thence a line shall be run following downward the right bank of said river to intersect the line where the beginning was made. * * *
“And whereas the territory comprised within these lines can suffice only for settling less than three hundred families, it becomes necessary that your excellency be pleased to annex to this concession the lands of Juan Lucio Woodbury’s contract remaining surplus after those to which the two hundred families for whom he did contract are entitled shall have been computed or allotted, and to declare that if the said empresario, or his heirs because he is dead, should fail to introduce the families referred to within the term of two years to which he is still entitled, it is understood in that case that all the territory in said Woodbury’s contract is from this date annexed to the territory which we have demarcated for settling in it the remaining five hundred and odd families.”
The contract for colonization granted to the applicants the right to [388]*388colonize land between the Nueces and Rio Grande, reaching from the northern boundary of the State of Tamaulipas to the twenty-ninth degree of latitude, and it provided, “If within the time lawfully allowed to Woodbury and Vilen for the introduction of families as aforesaid they should fail to effect it, the whole territory which was ascribed to them shall thenceforth remain in favor of the actual empresarios.”
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Stayton, Chief Justice.
This action was brought by appellant to compel the surveyor to survey certain lands located by it by virtue of genuine land certificates of which it was the owner.
Persons claiming the lands covered by the locations were with the surveyor made defendants, and no question is made as to the right of appellant to have the surveys made and field notes returned to the General Land Office if the lands were vacant and unappropriated public domain.
The locations were made on and subsequent to January 27, 1882.
The defendants who claim the lands allege that all the lands located by appellant cover all or parts of four eleven league rants made by the [386]*386State of Coahuila and Texas on April 18, 1834, to Francisco Pereya, Narcisso, Antonio, and Pedro Aguirre.
The land claimed through grant to Francisco Pereya is in part in Zavala County and in part in Dimmit County and on the western margin of the Nueces River, while that claimed under grant to Pedro Aguirre is entirely in Zavala County and on the west margin of the same river.
The two grants claimed to have been made to Narcisso and Antonio Aguirre are on the east side of the Nueces River, the latter in Zavala and the former in that and Dimmit counties.
The defendants are admitted to deraign title to these several grants, but the validity of the grants now or at any former period is denied by appellant.
The controversy in the court below was as to the existence of these grants and their validity, and the questions presented arise upon rulings of the court below on the admission of testimony and upon the findings upon the evidence admitted.
Appellees introduced in evidence a report made by the Secretary of State for the State of Coahuila and Texas to the political chief of Bexar, of date January 2, 1833, giving a statement of a number of colonial contracts made under decrees of March 24, 1825, and April 28, 1832, among which was stated to be a contract Avith Diego Grant and Juan Carlos Beales for the introduction of eight hundred families.
They also offered another report of same date made by the same officer to the same political chief showing a large number of concessions to purchase lands, among which were concessions to the persons before named under which they were each entitled to purchase eleven leagues of land.
The papers offered were thus certified by the Spanish translator and Commissioner of the General Land Office:
“ State or Texas, General Land Orrice,
“Austin, October 20, 1883.
“I certify that the foregoing is a correct translation of two Spanish printed statements existing in the file of annual reports of colonization contracts and land grants by the executives, made by the Secretary of State of Coahuila and Texas to the political chief of Bexar, which file was transferred from the office of said political chief to the office of county clerk of Bexar County and thence to the General Land Office, and is now in existence in file 52 of the Spanish archives of this office.”
This evidence was objected to on the sole ground that it Avas irrelevant. Those papers were not irrelevant, but tended to sIioav that the concessions through Avhich appellees claim were made, and made before the dates these reports bear date, and further that the colonization contract with Grant and Beales was in existence when the reports were made.
Taken in connection with the laws then in force they further tended to show that the colony as well as the lands in controversy were to some [387]*387extent within the territory over which the political chief of the department of Bexar exercised jurisdiction.
Appellees next offered in evidence a copy certified from the General Land Office of what purported to he the application of Grant and Beales for a colonization contract, of date October 5, 1832, and in connection with this a copy of the colonization contract certified in the same manner and bearing date October 9, 1832.
The application was made to the Governor of the State, and so much of it as has bearing on the questions raised in this case is as follows:
“Most Excellant Sir: Diego Grant, a citizen of the State and naturalized in the Republic, and Juan Carlos Beales, a native of England and married to a Mexican woman, with children born in the country, with the greatest respect would represent to your excellency:
“ That whereas the colonization law of April last passed invited all classes of persons, whether national or alien, tu project subject to said law the settlement of the vacant lands of the State, the undersigned have determined to introduce into the department of Bexar eight hundred honest industrious families from Europe, thus contributing to the fulfillment of the object of said law, and to converting into settlements useful to the State and Mexican nation the vacant and desert lands which in their present condition can be of no advantage whatsoever. In these terms and with the object of complying with the federal and particular laws in this enterprise to which we intend to devote ourselves, your excellency is requested to concede to us for the establishment of the families aforesaid the territory comprised within the following boundaries:
“Taking the line reputed as the dividing line of this State and that of Tamaulipas between the Rio Grande and ETueces River, and following the left bank of the Rio Bravo up to the twenty-fourth degree west of Washington, thence up the said meridian to intersect the twenty-ninth of latitude and following the same to the Eiueces River, thence a line shall be run following downward the right bank of said river to intersect the line where the beginning was made. * * *
“And whereas the territory comprised within these lines can suffice only for settling less than three hundred families, it becomes necessary that your excellency be pleased to annex to this concession the lands of Juan Lucio Woodbury’s contract remaining surplus after those to which the two hundred families for whom he did contract are entitled shall have been computed or allotted, and to declare that if the said empresario, or his heirs because he is dead, should fail to introduce the families referred to within the term of two years to which he is still entitled, it is understood in that case that all the territory in said Woodbury’s contract is from this date annexed to the territory which we have demarcated for settling in it the remaining five hundred and odd families.”
The contract for colonization granted to the applicants the right to [388]*388colonize land between the Nueces and Rio Grande, reaching from the northern boundary of the State of Tamaulipas to the twenty-ninth degree of latitude, and it provided, “If within the time lawfully allowed to Woodbury and Vilen for the introduction of families as aforesaid they should fail to effect it, the whole territory which was ascribed to them shall thenceforth remain in favor of the actual empresarios.”
The contract also sets out the boundaries of the Woodbury colony, the western line of which from the southern boundary of Cameron’s colony followed the 100 degree of longitude to its intersection with the old road leading from Rio Grande to Bexar, and thence with that road to the Medina River, was a part of the southern boundary of the Woodbury colony.
The contract with Woodbury was made November 14, 1826, and would have terminated November 14, 1832, but for an extension of two years given by decree of Congress of date February 12, 1829. Decree 78; Laws Coahuila and Texas, 114.
The application of the colonial contract and the contract on file in the General Land Office are one paper, the conclusion and certificate to which is as follows:
“Before me, the secretary of the office of the Supreme Government of the State, and for due authority they did sign hereto, his excellency ordering that a testimonio of the document be delivered to the said Grant and Beales, to serve them as a muniment and title in due form, the original remaining archives in the secretary’s office in my charge for due effects.
“City of Leona Vicario, the 9th of October, 1832.
“ Rafael Eoa y Musquiz,
“Diego Grant,
“Juan Carlos Beales.
“Santiago delValle, Secretary.
“ This is a copy of the original existing in the' archives of the secretary’s office in my charge, from which it was caused to be transcribed by the order of his excellency the Governor.
“ Leona Vicario, on the 18th day of the month of' October, 1832.
“Santiago del Valle, Secretary.”
The instrument was written on paper bearing stamp for the proper year. These papers were filed in the General Land Office on December 30, 1845, and their admission in evidence was objected to on the following grounds:
“1. The same was incompetent as evidence and irrelevant to the issues in the case.
“2. The same purports to be a copy from an unauthorized notarial copy, and as such is incompetent as evidence.
“3. The lands in question in this case are not shown to be within [389]*389the boundaries of the colony for which this document purports to be a contract.
“4. That it purports to be a colonization contract for the introduction of families in the department of Bexar, while it appears from the records in these causes that the defendants claim title under concession in sale authorizing the purchase of lauds in the department of Monclova, and that hence the document offered is irrelevant."
The titles under which appellees claim purport to have been issued by the commission appointed to extend titles in a colony, and if the person who so acted was the commissioner for a colony in which any of the lands were situated then the evidence was not irrelevant, as will be more fully seen when we come to consider the concessions, final titles, and commission of the officer who extended the titles and gave juridical possession.
The second objection is not sustained by 'the record, for the papers offered appear to be the original testimonio of application for and grant of a colonial contract, duly certified by the officer who was the legal custodian of the protocol and delivered to the empresarios as the evidence of their right.
The protocol is now an archive in a foreign government, and such evidence as was offered in this case was the very best evidence of the colonial contract which could be obtained and filed in the General Land Office.
Such papers as were offered have been considered as properly pertaining to the archives of the respective colonies, and so were properly filed in the General Land Office, and no case can be found in which it has been held that a copy certified from that office was not admissible in evidence.
The question arose in Houston v. Perry, 3 Texas, 393, and it was said: -'‘The presumption of law is that the document in the Land Office is not a second or third copy of the protocol remaining in the archives of the government of the State of Coahuila and Texas, but is the original copy or testimonio issued to the empresarios at the time of the execution of the contract. Various provisions of the law requiring empresarios, under severe penalties on refusal, to deliver to the Commissioner of the General Land Office all documents in relation to land titles which had been and were considered archives (Laws of 1837, p. 44), and the contract of the empresarios being an essential constituent of the archives of a colony, it is but a reasonable inference that this paper was deposited in compliance with the requisitions of the law. The commission was under no legal obligation to receive any other document in evidence of the contract between the State and the empresarios than the one forming a portion of the archives of the land titles of the colony, and the translation offered must prima facie be presumed to be a copy of the document thus legally received. The translation is admissible only on the supposition that the original document could be offered in evidence without proof of its execution."
[390]*390In the same case, on a second appeal, a certified copy of a colonial contract, as well as the paper in the General Land Office from which it was taken, were received in evidence, and the ruling was sustained. Houston v. Perry, 5 Texas, 463.
In Hatch v. Dunn, 11 Texas, 713, such evidence of a colonial contract, as was admitted in this case was held to have heen properly received.
The following cases have hearing on the question: Bissell v. Haynes, 9 Texas, 556; Robertson v. Teal, 9 Texas, 344; Paschal v. Perez, 7 Texas, 356, 360; Herndon v. Casiano, 7 Texas, 322.
In some of the cases referred to it is declared that the courts have judicial knowledge of colonial contracts, and in Paschal v. Perez it was held to be unimportant in whose possession a paper properly an archive or record of some former office may have been before it was deposited in the General Land Office.
Some of the lands in controversy were shown to be within the boundary of the Grant and Beales colony, and that all may not have been was-no reason for excluding the evidence, the relevancy of which will be considered in another connection.
The fourth objection is not sustained by the record, for while it applied for permission to purchase each eleven leagues of land in the department of Monclova the concession was for that quantity of land to-each “at the place he may designate.”
The concession was broader than the application, and of the power of the Governor so to make it there can be no question.
The applications to purchase were all made on the same day, and were in the same form, as were the concessions to each.
Those made by and to Earcisso and Antonio Aguirre were as follows:
“Most Excellent Sir:—The citizens Earcisso and Antonio Aguirre, brothers, before your excellency respectfully represent that the colonization law permitting that Mexicans may acqire vacant lands of the State by title of purchase, your petitioners in conformity with that law humbly supplicate your excellency to be pleased to concede to them in sale to each of them eleven leagues of the vacant lands in the department of Monclova, with the right to unite them in one body or separate them in divers fractions, as may seem to them most convenient, obligating themselves as they do to pay at once the fourth part of its value, and to pay the balance in the terms the law prescribes, and complying also by the introduction of the number of sheep and cattle upon said leagues conforming in every particular to what is provided in the said colonization law; wherefore, they supplicate your excellency to be pleased to provide accordingly, whereby we will receive grace and justice.
“Earcisso Aguirre,
“Antonio Aguirre..
“ Leona Vicario, October 12, 1832.”
[391]*391“Leona Vicaeio,. October 16, 1832.
“ In accordance with article 13 of the new colonization law passed by the honorable Congress of the State on the 28th of April, 1832, I grant. in sale to each of "the petitioners the eleven leagues of land which he solicits at the place he may designate, provided the tract of each shall be united, and that it does not by any title belong to any corporation or person.
“The commissioner for the distribution of lands in the colony to which those which the petitioners shall solicit may correspond, and in defect of such commissioner or the same not being embraced within any colony, the first or only alcalde of the respective or most immediate municipality complying with the provisions made touching the matter, will put them in possession of said leagues, and will issue the corresponding title after classifying the quality of them for the designation of what they ought to pay to the State, which payment must necessarily be made by the interested parties, in the manner and on the terms which the latter part of said article 13 provides, making the cash payment required by this article at once to the treasury of the State, evidence whereof they shall present in order that in view thereof the secretary’s department may proceed to give each one of the interested parties a copy of this decree, so that by his appearing therewith before the commissioner it may produce the corresponding effect.
“BeA y Musquiz,
“Santiago del Valle.
“(‘Satisfa’ underscored is not valid.) It is a copy of its original which exists in the archives of the State Department under my charge, from which it was ordered to be taken by the decree of his excellency the Governor.
“Santiago del Valle, Secretary.
“Leona Vicario, October 17th, 1832.”
The parties made a written agreement in reference to each of the applications and concessions involved in this case for use on the trial, in which it was agreed that each bore the “true and genuine signature, in his official capacity, of Santiago del Valle;” that the seal at the top of each of said instruments (omitted in statement above, as is the stamp, but shown in the record) “is a true and genuine impress of the great seal of the State of Goahuila and Texas which was in use at the time of the purported execution of said instrument; that the" paper stamp also upon the paper upon which said document is written was the legal stamp used by the State of Goahuila and Texas for the purposes for which it was used in this instrument during the years 1832 and 1833.”
It will be observed that these papers appear to be the original testimonios delivered to the parties as evidence of their rights each to purchase [392]*392eleven leagues of land, and they came from the possession of persons claiming through them, and were objected to on the following grounds:
“1. Said documents are irrelevant to the issue in this cause, and do not tend to prove title to any of the lands in controversy herein.
Said documents purport to be testimonios of concessions authorizing the purchase of lands in the department of Monclova, and are not therefore competent as evidence tending to prove titles to lands situated in what was then known as the department of Bexar.
“3. Said documents do not come from the proper custody.
“Í. If said documents ever had validity they were but imperfect and inchoate titles, purporting only to grant the right to select land for purchase, and as such are not competent as evidence tending to prove title to any particular land.
“5. Said documents and all rights and privileges thereunder became and were forfeited by the terms and conditions of the law under which they purport to have been issued before any proprietary rights had been acquired thereunder.”
The first step in the acquisition of lands by purchase was an application to the Governor for a concession, which when granted was the foundation of the right in the particular instance. The concession ordinarily provided by whom the final title should be issued, and in most cases this was directed to be done as-directed in the concessions before us. While the concessions did not give to each of the applicants title to any land, they did give to each the consent of the government that they might buy, and this was essential to the acquisition of such grants by purchase. This was a fact necessary to be shown, and evidence establishing or tending to establish it was not irrelevant. They were further relevant for the purpose of showing what officer or person was thereby given power to extend the final title and do all other acts necessary to that end.
The second objection has been considered in another connection and will be further considered hereafter.
The concessions delivered to the several parties ought perhaps to have been attached to the protocols which remained in the archives of the government then existing, but looking to the papers offered as final titles the inference is that the officer who issued them deemed it unnecessary to do this, and thought it sufficient to recite in the titles themselves his authority for his act. This would seem to be sufficient, for the protocols of the original concessions must be presumed to be in the proper archives.
The genuineness of the concessions being conceded, that they came from the custody of persons claiming through them is no sufficient reason for their exclusion, though the usual practice may have been to attach them to the protocol of final title which remained in the proper archive.
[393]*393The fifth objection to the introduction of these papers will be considered in another connection.
Appellees offered in evidence the following instrument:
“ The alien Don Carlos Beales having on the fifth instant applied to this government for the appointment of a commissioner to give possession of lands in the colony for which he has contracted jointly with Don Diego Grant, I have deemed it proper to commission you for the indicated objects, and in accordance to the instructions issued for this class of commissioners by the honorable Congress on the fourth day of September, 1827, a copy of which I enclose herewith, to proceed to the distribution of the lands to which the families contracted for on the ninth of October, 1832, by said Beales and his partner are entitled, a testimonio of which contract shall be placed in your hands by the empresario; it is understood that you must previously inform of this commission the political chief of the department of this capital, for his ¡knowledge, and in order that he may comply with the provisions of article 7 of Decree ¡No. 128, a copy of which I enclose herewith; also one of Decree ¡No. 62, which are referred to at the close of said instructions.
“ God and Liberty. Monclova, the 13th of March, 1834.
“Francisco Vidaurri y Villarenor.
“ J. Miguel Falcon, Secretary.
“ To Seíior Don Fortunato Soto."
It has the proper certificate of the translator and Commissioner of the General Land Office attached, stating that it is a correct translation of .an official document in the Spanish language, existing in file 43 of Spanish archives of that office; but there is no statement when or by whom it was filed, and the original is represented to have been under the “seal of the Supreme Government of the free State of Coahuila and Texas."
The genuineness of this instrument is not questioned, but its admission in evidence was objected to on the following grounds:
“ 1. The same does not purport to confer upon the commissioner authority to extend titles of the character under which defendants claim.
“ 2. Said commission purports only to confer authority upon the commissioner to distribute the lands to which the families contracted for on the 9th of October, 1832, by Don Carlos Beales and Diego Grant were entitled, which said colony was, according to proof already introduced by defendants, situated in the department of Bexar, while it appears from the record in the cause that defendants claim title under a concession in sale authorizing the purchase of lands in the department of Monclova, •wherefore, the document offered is not competent as evidence tending to prove the authority of the said commissioner in the premises.
“3. Said instrument is not properly an archive of the General Land Office of the State of Texas.
[394]*394“4. If said instrument ever had any validity it was revoked by law .subsequent to its issuance, to-wit, on the 36th of March, 1834.”
It is true that this commission does not in terms empower the commissioner to extend the titles involved in this controversy nor like titles, but the concessions do empower “the commission for the distribution of lands in the colony to which those which the petitions shall solicit may correspond, * * * to put them in possession of said leagues, and will issue the corresponding title,” etc.
If the lands were within the territory allotted to Grant and Beales for colonization, and the commission named was the power appointed to extend titles to settlers thereon, then he had power to issue the titles in. • question unless his power was revoked by the law of March 36, 1834.
The seeming uncertainty raised by the evidence in this case as to whether the lands in controversy were then recognized to be in the department of Texas or the department of Monclova, and its bearing on the rights of the parties to this cause, will be considered elsewhere.
The instrument, the copy of which was offered in evidence, purports to be an original and not a copy delivered to the commissioner as the. evidence of his official character, as was usual in all such matters, the original remaining with the government as an archive, and if a question were made as to its genuineness this fact might call for explanation.
As, however, no such question is raised we are not prepared to hold that a paper which would be a proper archive of a government now foreign, affecting as it does lands in Texas, is not legally archived in the General Land Office.
The fourth objection will be considered in another connection.
Appellees offered in evidence papers purporting to be final titles to the persons through whom they claim, all issued on the same day by-the Commissioner Soto and alike in form, one of which is as follows:
“In the town of Dolores, State of Coahuila and Texas, on the 18th day of April, 1834,1, the citizen Fortunato Soto, as commissioner of the supreme government of the State, in the Rio Grande colony, by virtue of the contract celebrated between the said government and its citizen (Harcisso Aguirre), after compliance with all the other requirements and conditions which the laws provide on the subject, and in accordance with that which the governor ordains in his superior decree of the 16th October, 1833, contained in the contract aforesaid, do in the name of the government extend the present title to the citizen John Charles Beales, attorney in fact for the citizen (Narcisso Aguirre), whose power of attorney he has exhibited to me for the eleven- leagues to which the aforesaid contract refers, which in their present condition I have classified as grazing land, and the limits whereof are as follows. [Here follows description.]
“And that in order that; the property which the aforesaid citizen Harcisso Aguirre has in said eleven leagues of land might in all due form of [395]*395law always be evident and certain, I went with bis attorney, the citizen John Charles Beales, and after the same had been surveyed by the surveyor, the citizen William Eagerton, put him in possession, and taking him by the right hand I perambulated the said eleven leagues of land with him in the name of the said government, and caused him to perform all the other ceremonies which the laws provide for this case of actual possession, omitting the citation of adjoining owners, there being none such.
“The citizens Victor Pepin, Edward Little, and George Colwell, being witnesses, in addition to those of my own assistants, all residents of this, town, who for due formality signed with me and the interested party on the said day, month, and year.
“The party obligating himself to replace the paper of the seal which corresponds, there being none such now in this town nor its contiguities-
“Fortunato Soto.
“Of assistance:
“ Thomas J. Plucknett,
“John Charles Beales,
“George Colwell,
“Thomas H. F. (PS. Addicks,
“Victor Pepin,
“Edward Little.
“I, the citizen Fortunato Soto, commissioner of the supreme government of the State in the Rio Grande colony, do certify that the foregoing testimonio is a literal and true copy of and -was legally taken from its original, to which I remit myself, and which is extant in the respective book of the archives of this colony, and in compliance witn the eighth article of the instructions of the 25th of April, 1830, I give these presents to the interested party to serve him as his title, the same going on common paper, there being none of the corresponding seal in this town nor in its contiguities, and for its due authentication I have signed the-same with assisting witnesses, the said day, month, and year.
“Fortunato Soto.
“Of assistance:
“ Thomas H. F. O’S. Addicks,
“Thos. jAst Plucknett.”
John Charles Beales held a power of attorney made by all the grantees and several others, of date October 18, 1832, which gave to him power to demand and receive the titles and to exercise in regard to them most extensive powers, irrevocable.
There was an agreement that the signatures to these papers “purporting to be testimonios of final title executed by Fortunato Soto, commissioner, on the 18th day of April, 1834, are the true and genuine signatures of the parties who signed the same,” and that when introduced with the agreement “should be full and conclusive proof of all facts above stated,. [396]*396and of no other fact, plaintiff expressly reserving any and all other objections to said instruments.”
The instruments in Spanish, after having been proved for registration in a manner as to which no question is raised; were filed for record in the •counties in which the lands are situated on June 22, 1878, and were recorded on June 24.
It was shown by the Commissioner of the General Land Office that the originals of the testimonios offered in evidence were not in that office, but it was made to appear that the testimonios were filed in that office in the year 1845 or 1846, and there remained until April 16, 1875, when they were withdrawn by 0. R. Johns & Co., acting under power of attorney from John Charles Beales and the surviving children of his deceased wife. This power of attorney related to nine separate eleven league grants, including these in controversy, which the parties claimed, and from the power it seems had placed in the hands of Johns & Co. as early as 1867 for the purpose of having the title perfected or cleared. The lands were placed on the maps in the General Land Office as early as 1846, and on the maps in Bexar land district about the same time, and so remained until appellant made its locations.
It was shown from the records of the Comptroller’s office that there was no evidence there that the lands had been assessed for taxes prior to the year 1871, since which time taxes were paid by 0. R. Johns & Co., “trustees,” or the defendants until 1882.
The grants were placed on the abstracts of titled lands printed in 1852 .and 1878, but were not placed on abstracts published between those dates.
There were sixteen objections made to the admission of the papers purporting to be testimonios of title in the Spanish language, translations thereof being offered at the same time. Many of these objections have been considered in disposing of other questions raised, and others go to the forms and manner in which the titles are made up.
The form of the several testimonios is unusual in that they do not contain petitions to the commissioner for extension of final title with general designations of land desired, accompanied with the concessions, a reference to the empresarios, their consent, order for survey, report of survey, and other like things which are usual in such titles, but it can not be held for the want of such things that testimonios containing the essentials of final title ought to have been excluded.
The absence of those things might excite inquiry bearing on the genuineness of the papers and the time and circumstance of their execution, but the genuineness of the signatures to them is admitted, and such other inquiries as might thus be raised do not go to their admissibility in evidence.
They are shown to have been in existence more than forty years, and coming from the custody in which they are shown to have been ought to [397]*397be received in evidence as ancient instruments unless suspicion other than such as may arise from their form be cast upon them if there be no other-reason requiring their rejection.
It was urged, as the originals were never filed in the General Land Office, nor the testimonios proved for record and registered in the county in which the lands were situated prior to the adoption of the present. Constitution, that the Constitution forbids their use in evidence, and that if ever valid they were stale and forfeited, “ and the land to which they relate was remitted to the public domain by legislation equivalent for reversion by office found/-’
The present Constitution of this State became operative on the third Tuesday in April, 1876, and article 13, section 4, of that instrument provides that “ no claim of title or right to land which issued prior to the 13th day of ¡¡November, 1835, which has not been duly recorded in the county where the land was situated at the time of such record, or which has not been duly archived in the General Land Office, shall ever hereafter be deposited in the General Land Office, or recorded in this State, or delineated on the maps, or used as evidence in any of the courts of this State, and the same are stale claims, but this shall not affect such rights or-presumptions as arise from actual possession.”
The record forbids the holding that the claims of title or right to land now asserted by appellees had been duly archived in the General Land Office prior to the time the Constitution took effect, as does it forbid the holding that their evidences of right had been recorded in any manner in any county in the State prior to that time, and the question arises whether effect can be given to this section of the Constitution in its entirety without violating the supreme law of the land.
It is doubtless within the power of the people of a State, through a constitutional provision or legislative act, to declare what evidences of right may or may not be archived in the General Land Office or recorded in the several counties, or to declare what notice of ownership of land may not be evidenced by delineations on public maps; for while such prohibitions may make it more difficult for persons owning lands, against, which such provisions operate, to preserve and manifest their rights, they do not prevent such persons establishing their ownership in a court of justice under the ordinary rules of evidence applicable to the admission of that which originally conferred title and was given for the purpose of evidencing the right.
The declaration that “no claim of title or right to land which issued prior to the 13th day of November, 1835, * * * shall ever hereafter * * * be used as evidence in any of the courts of this State,” unless it had been archived in the General Land Office or recorded in the county in which the land is situated at the time of record, could have applica[398]*398tion only to such evidences oí right as before that time could have heen archived or recorded—to writings evidencing titles.
Its effect is to declare that unless the protocol—the only evidence of title to the land which under the laws in force at the time the Constitution became operative could be archived, unless it were an archive in some department of the former government—was then on file in the General Land Office, a testimonio, the instrument given to be used as evidence of individual right, however well proved up, could not be admitted in evidence unless it or a copy of the protocol certified from the General Land Office had been recorded.
The originals or protocols of the papers offered in evidence, if they ever existed, ought to be archives of a now foreign government, and from the evidence offered presumably are so; and appellees and those through whom they claim have had no means through which these could be removed and filed in the General Land Office, nor has this government at any time made any provision whereby copies of them, however authenticated, could be here duly archieved.
That the testimonio of a grant to. an individual could not be legally archieved is well settled, and in consequence of this many persons anxious to preserve and notify all persons of their rights having filed such papers in the General Land Office, as did those through whom appellees claim, the Legislature authorized their withdrawal. Pasch. Dig., arts. 76, 77.
Prior to the adoption of the present Constitution failure to register evidence of titles to land did not render them inadmissible in evidence on proper proof of their execution, and the only effect.of failure to register was to render them inoperative as to creditors and subsequent purchasers for valuable consideration without notice.
There is no question of notice in this case, for appellees were in actual possession at the time appellant made its locations.
The provision of the Constitution gave no time after its adoption within which parties might record their titles, but declares that such as were not recorded at that time should never be received in evidence unless the titles were then archived in the General Land Office.
The effect of this was to deny to the holders of such claims the right or power to exhibit their rights in due course of law. A right existing to-day and susceptible of proof under well established rules of evidence applicable to all persons—by the writing creating and by law required to he given as the evidence of the particular right—which in consequence of arbitrary legislation of to-morrow may not thus nor in any other manner be established in a court of justice, is practically a right destroyed.
The only means given by the section of the Constitution referred to to establish titles issued prior to November 13, 1835, not archived or recorded is through such presumptions as arise from actual possession, [399]*399and by that we understand that the title is not to be recognized unless the possession has been such and so long continued that a grant therefrom may be presumed under the rules applicable to that subject.
Prior to the adoption of the Constitution persons owning such grants had not been required to remain in possession of them as a condition on which the continuance of the right depended, and a law which makes some prior act of the party not necessary before its enactment the only evidence which can be admitted to prove a title valid at the time of its enactment would seem to be subject to all the objections that may be urged against retroactive legislation.
There being no law in force prior to the adoption of the present Constitution which enabled appellees or those through whom they claim to archive their titles, record them in the county in which the lands were situate, or to remain in actual possession, no right accrued to the State on account of their failure to do any of these things, and the declaration that for failure in any of these respects their claims became stale is but an arbitrary declaration of a result not following from a former law applied to facts existing at the time the Constitution became operative.
Notwithstanding all we have said is true, the declaration found in the Constitution that such titles shall not be “ used as evidence in any of the courts of this State ” must be given effect unless it contravenes some provision of the Constitution of the United States or other supreme law of the land.
The fourteenth amendment to the Constitution of the United States, among other things, provides: “Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Article 1, section 10, of the same instrument, provides, among other things, that “no State shall * * * pass any * * * law impairing the obligation of contracts.”
If appellees have rights they arise on contracts made between the State of Coahuila and Texas and the several grantees through whom they claim, and their rights were never abrogated before Texas became a State of the Union.
If ever valid claims they were valid when the Constitution became operative, and to determine whether or not they were valid claims proof that the final titles were extended was necessary, and this could be established only by the written evidence of that fact or proof of the execution and contents of them,"both of which methods are prohibited by the section of the Constitution referred to.
Legislation in whatever instrument found which forbids the introduction of evidence of a prior contract, admissible and made necessary to the validity and existence of the contract by the law in force at the time it [400]*400was made, unless it provides some other method of making sufficient proof of the necessary facts accessible to the person called upon to make-the proof, it seems to us impairs the obligation of a contract as fully as. though such subsequent law in terms declared that the contract should, no longer be operative or be enforced through the courts, for it destroys the only means through which the contract may be established and enforced if effect be given to the enactment—in effect renders the contract-inoperative; for without proof of its existence and terms a contract however valid can have no standing in a court of justice, the only tribunal through which contracts can be enforced in the absence of voluntary compliance by the parties thereto or by those claiming through them.
We are of opinion that the provision of the Constitution of this State-under which it is claimed the evidence under consideration should have-been excluded is in conflict with both of the provisions of the Constitution of the United States to which we have referred.
It is not shown that the lands in controversy, originally titled to Mexicans, did not belong to them on July 4, 1848, when the treaty of Guadaloupe-Hidalgo was proclaimed. If they did, then they are protected in so far as valid titles against the State of Coahuila and Texas on March 2, 1836.
The last paragraph of article 8 of that treaty provided that “in said territories (ceded territories) property of every kind now belonging to* Mexicans not established there shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.”
The first paragraph of the same article secured to Mexicans established within the ceded territory the same rights.
The last paragraph of the second article, explanatory of the treaty signed on February 2,1848, declared that “those which were legitimate titles under the Mexican law in California and ISTew Mexico up to the 13th day of May, 1846, and in Texas up to the 2d day of March, 1836, were within the protection of the treaty.”
Article 6, section 2, of the Constitution of the United States declares-that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be-made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
If the court below, on inspection of the documents offered, could have-held that they did' not confer such title under the Mexican law against the State of Coahuila and Texas as was entitled to protection under the treaty, or that they conferred no title whatever, then they might properly [401]*401have been excluded; but if they showed title, even though subject to forfeiture for breach of condition, they were properly in so far admitted.
It is urged that the papers purporting to be final titles, in connection with the other evidence offered, did not show title to any of the land in controversy, and some of the grounds on which this assertion is based will be considered.
The concessions were made under Decree 190, of date April 28, 1832 (Laws Coahuila and Texas, p. 189), and it is claimed that the commission of Soto was annulled by Decree 272, of date March 26, 1834.
This proposition is based on articles 29 and 30 of the decree last named, which in terms repealed so much of all former instructions as were inconsistent with its provisions, and it declared that no further colonization contracts should be made, but that those theretofore made should be strictly fulfilled in accordance with the law of March 24, 1825.
Decree 272 contemplated a new system for the disposition of the public domain, but it never was inaugurated in Texas nor any commissioners appointed under it, except the commissioners Srnythe and Taylor, who were appointed under the express provisions of article 32 of that decree, and might have been appointed without it.
The entire legislation of the period manifests no intention to divest rights acquired under Decrees 16 and 190.
The effect of Decree 272 upon rights acquired under Decree 16 was considered in Jenkins v. Chambers, 9 Texas, 234, in which the same propositions were asserted in reference to rights acquired under Decree 16 as are asserted in this case against rights claimed to have been acquired under Decree 190.
In that case it was said that “ the instructions to commissioners were repealed only in so far as they were opposed to the provisions of the law of 1834. Decree 272, art. 29. Those of the 4th of September, 1827 (Laws and Decrees, p. 70), were doubtless mainly intended for the government of commissioners for the distribution of lands to colonists proper. But their terms are sufficiently comprehensive to embrace, and they were made to embrace, other cases of concessions made under the law of 1825. The reason of the law which required that colonization contracts should be carried out in accordance with the law of 1825 undoubtedly applied Avith equal force to the concessions in this case. The law did not in terms provide for extending titles to colonists introduced under these contracts, but it could never have been doubted that it was intended to include them; and there can be as little doubt that it was then the received construction of the law that the repeal did not divest the Governor of the authority to complete the titles when there had been concessions made to purchasers and settlers under the laAV of 1825. That construction seems more natural and rational than the opposite one, Avhich would require us to suppose that the Legislature intended, indirectly and by implication, [402]*402to annul pre-existing rights and contracts guaranteed and confirmed by previous laws. We can not suppose that such consequences were intended, and the history of the times, it is believed, as connected with this subject, will afford abundant evidence that such was not understood' to be the effect of the repealing law.”
Manjr titles in this State would be uprooted if the law upon this subject was as contended for by appellant; and in view of the course pursued by the Governor of the State and other officials, who must be presumed to have understood their powers and in good faith acted upon them, nothing short of a law clearly showing a usnpation of power would justify our holding that their acts were invalid. We therefore hold that the court did not err, in view of the other evidence in this‘case, in refusing to exclude the documents offered on the ground that the commission to Soto had been annulled before he issued the titles.
It is further urged that the documents should have been excluded because no proof was made that the conditions on which these grants were made were ever complied with; and further that the grants were extended to an attorney in fact, which it is claimed was forbidden by article 12, Decree 272. As to the last of these objections we are of opinion that the law referred to has no application to this case. • .
As to the first and to .the further objection that the real intention of the parties was to procure for John Charles Beales, a large number of eleven league grants in contravention of article 12, National Colonization Law, article 24, Decree 16, and article 13 of Decree 190, the inquiry arises whether appellant is in position to raise these questions or to question whether any of the lands were outside of the boundaries of Grant and Beales colony or within the department of Coahuila or Bexar.
Counsel for appellant proceed upon the theory that it is the holder of “junior title” or “color of title,” which under article 13, sections 1 and 2 of the Constitution would make grounds for forfeiture enure to its benefit, and cast the burden of proving full compliance with all the conditions on which the grants were made on appellees.
Grounds for forfeiture for non-compliance with conditions may exist; it may have been the intent of the grantees and Beales to acquire for him more land than the law permitted to be held by one person, and that on this ground forfeiture might be claimed by the State or the holder of junior title or color of title; and it may be and doubtless is true that the commissioner issued title to lands not within the limits of the colony for which he was commissioner, and the grants in so far may be void; and it may be that the grants are situated within limits then recognized by the authorities to be in the department of Bexar, but it does not follow if all these things be true that any of them can enure to the benefit of appellant.
The concessions which conferred the right to purchase, if this record speaks the truth, were valid, and Soto had power to issue titles if the in[403]*403strument evidencing his authority he not false; and however much he may have exceeded his authority, the lands are nevertheless, within the meaning of article 14, section 2 of the Constitution, “ titled lands.” Truehart v. Babcock, 51 Texas, 177; Northrope v. Chambers, 51 Texas, 187, Summers v. Davis, 49 Texas, 541; Winsor v. O’Connor, 69 Texas, 571, and cases therein cited.
The section of the Constitution referred to provides “that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the •sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office, or when the appropriation is evidenced by the occupation of the owner or some person holding for him.”
This provision of the Constitution was construed in Winsor v. O’Con-nor and in other cases, and it can not be claimed that by the locations made by appellant in violation of law it acquired such rights as under article 13, sections 1 and 2 of the Constitution can be held to constitute “junior title” or “color of title.”
A grant made by the State of Coahuila and Texas subsequently to the issuance of the titles under which appellees claim, or a patent from this State issued prior to the adoption of the present Constitution or subsequently under a location made before, would constitute “junior title,” as would a location on valid land certificate made before the adoption of "the Constitution constitute “color of title,” which would entitle their holders to the benefit of the provisions of article 13, sections 1 and 2 of Constitution.
It is evident that it was not the purpose of that article of the Constitution to validate invalid Spanish or Mexican titles, but on the contrary to reserve every right the State had to annul them for failure to comply with conditions precedent or subsequent or for any other legal cause; and it is not believed that it was the purpose of Decree 314 to give validity to any grants wanting in the essential elements of valid title; but while this is so it does not better the condition of appellant, who shows neither “ junior title” nor “color of title.”
However defective the titles through which appellees claim may be, they show such facts as deprive appellant of the right to the writ of mandamus which it seeks.
There are many other incidental questions presented in the carefully prepared briefs of counsel, which in this opinion, already too much extended, we can not present; but those considered are decisive of the case before us, and the judgment of the court below will be affirmed.
Affirmed.
Delivered June 18, 1889.
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