Hancock v. McKinney

’Where a concession in sale, under the 24th article of the colonization law of 1825, conceded to the purchaser the terras designated in the 22d article of the same law: Held, That it was no objection to the title. (Note 60.) 'The contracts which the Executive had ratified, and the concessions stipulated to purchasers or settlers by virtue of decree No. 16 of the 24th of March, 1825, were confirmed by article 10 of the law of the 28tli of April, 1832. (Decree 190, Laws & Dec., C. & T., p. 191.) In disposing of this objection, on which much reliance seems to have been placed, we have not deemed it necessary to enter into a critical examination of the terms and import of the several provisions of the law to which reference has been made, or to institute an in* quiry into the policy of the former Government in the disposition of her public domain in order to ascertain whether a just interpretation of those laws or a proper understanding of that policy would have required a different action from that taken by the Executive in this instance. It would not bo unreasonable to suppose that the highest executive and legislative functionaries of the then Government had as enlightened views in respect to the true policy of their Government and as just an appreciation of their powers and duties as we possess in respect to them. The construction of their powers, and of the laws which conferred them, adopted and acted upon by the authorities under the former Governments of the country, must bo respected until it be shown that they have clearly transcended their powers-or have acted manifestly in contravention of law. (Note 61.) "Where a concession of land, in sale, to a person who was at tlie time Secretary of State was authenticated by the “ first officer,” instead of the Secretary of State: Held, That the objection was not of a character to invalidate the title. 'Where a concession directed the alcalde of “ the respective or nearest municipality,” to put the grantee in possession of the land which ho might select, and to issue to him the title, &o.: Held, That the concession was not directed exclusively to the alcalde of the very municipality, if the land should be within one, the term “nearest” contemplating the event of the land not being within any municipality, but that it was directed to the alcalde of the municipality which might be embraced within either term, and that either one of two might act under the appointment,as might be ionnd most convenient. But the court afterwards say: It is not certainly shown in what municipality this land was situated. (It lies on the right bank of the Colorado, a short distance below the city of Austin.) We have little doubt that it was in that of Bexar. But that is not satisfactorily established by evidence in the case. And if it were, we cannot undertake to say, from the evidence, that, in the then state of the country in respect to the means of intercommunication, the seat of justice of the municipality of Austin, (San Felipe, the alcalde of that municipality put the grantee in possession, «fee.,) was not considered nearer than Bexar; and to sustain [385J the objection, it devolved on the party making it to show that that of Austin was neither the “respectivo” nor “nearest” municipality. (.Note 62.) % The distinction between perfect and imperfect titles under the Government of Ooahuila and Texas has been often discussed in this court, and resulted in the acknowledgment of the distinction, resting on the following basis, that is to say: If the grant were to receive na further act to constitute it an absolute title to the land from the legal authorities, taking effect in presentí, it was a perfect title :\but if something remained to be done by the Government or its officers, such title or right was imperfect; and until it received the sanction of the political authority it could not claim judicial cognizance. Titles issued to colonists and purchasers under the colonization laws of Ooahuila «and Texas were of an entirely different character from those concessions issued by the Spanish authorities in Florida, and afterwards pronounced inchoate by the Supreme Court of the United States. Under these laws the title of possession was a final title. Conditions were annexed, except to those granted to the military and some other favored porsous. But they were conditions subsequent, upon the non-performance of which the land was to bo forfeited. The appellant alleges that the conditions were not performed, and that a forfeiture of the title was the consequence. Ho is here met by the eighth section of the schedule of the Constitution of the State, directing,that “the legislature, shall, by law, provide a method for determining what lands may have been forfeited or escheated.” No method having yet been provided by the Legislature, it presents a case in which all jurists agree that the courts must await the lead of the political authority before they can act. The appellant having located subsequent to the adoption of the State Constitution, whatever rights he can claim under his location must be subject to the Constitution. And it mu^t be distinctly understood, that so far as his right to assert the forfeiture and to take the benefit thereof is concerned, this case is controlled by the State Constitution. No. opinion is expressed as to what would have been the result had the location been made before the adoption "df the State Constitution. (Note 06.) There is no doubt that, in practice, under the Spanish law, where grants.of land were made upon conditions, if the conditions were not performed, any one might denounce the land, prove the forfeiture, and have the land granted to himself. But then it devolved on the denouncer to prove the forfeiture. And if it were conceded that the plaintiff had the right to institute this proceeding, in analogy to the practice under the Spanish law, for the purpose of having the forfeiture adjudged by reason of the non-performance of conditions, nothing can be more perfectly clear than that it devolved on him to prove the facts in which the fvleiture consisted. Quere where it was provided that, upon the failure to perform conditions annexed to a final title, the title should become null, whether the rule is not different from the above, both as to the right of an individual to take, advantage of the forfeiture, and as to the burilen of proof respecting the performance or non-performance of the conditions. Rote 60. — Jenkins v. Chambers, 9 T., 167. Note 61. — Titus v. Kimbro, 8 T., 210; The State ?). Sullivan, 9 T., 166; Jenkins, u. Chambers, 9 T., 167; Jones v. Garza, 11 T., 186; Ruis v. Chambers, 15 T., 586; Cavazos v. Trevino, 35 T., 133. NoTe v. 11 Martin v. 26 T., Barrett v. Kelley, 31 T., 476. Note 63. — Swift v. Herrera, 9 T.,263; Rivers v. Foote, 11 T., 662; Johnston v. Smith, 21 T., 722; Bowner v. Hicks, 22 T., 155; Luter v. Mayfield, 26 T., 325; Howard v. Colquhoun, 28 T., 131.

Appeal from Travis. This suit was instituted by the appellant, on the 20th day of August, 1849, to recover from the appellee a tract of land. The plaintiff claimed title under'a location and survey made by virtue of a bead-right. certificate, on the 17th day of September, 1S4S. He alleged that the defendant, who was in possession, claimed adversely to him, under a grant for eleven leagues of land, made by the Governor of the State of Coahuila and Texas, in 1832, to San Mago Del Valle,, which he averred was void, for that, it was issued to Samuel M. Williams, representing himself as agent for Del Voile, .and who, as such agent, solicited and procured the survey and title of possession -to ten leagues, uniler and by virtue of the concession to Del Valle, when said Williams was not such agent, and had no authority to act in the premises; and for that the alcalde who executed the title had no authority; and also for that the said grant was made upon conditions which liad not been performed, by reason of which the title had become forfeited. The defendant pleaded, “ not guilty.” lie further interposed a pica of title in himself, derived from the grant to Del Valle, mentioned in the petition. The material questions in the case arose upon objections taken to the validity ■of the title under which the defendant claimed,- which was as follows : On the 8th day of March, 1832, upon the petition of Santiago Del Valle, Secretary of State, the Governor of the State of Coahuila and Texas granted to him a concession, in sale, under the twenty-fourth article of the colonization law of the State, of 1825, of eleven leagues of land in the department of Bexar, in the place which he should designate. The concession directed the commissioner for the partition of lands in the enterprise to which those solicited belonged, if within any, and if not, the alcaide of “the respective or nearest municipality,” to put the grantee in possession of the land, and issue to him-the title, first classifying the quality of the land, to ascertain the price which must be paid to the State; for which payment, it conceded to the purchaser the terms designated in the twenty-second article of the law. The concession was signed by the Governor, and by “ Jose Manuel Falcon, first officer.”' The lands selected not being within any colonial enterprise, on the 29th of' May, 1832, Samuel M. Williams, as attorney for Del Valle, presented to the alcalde of the municipality of Austin at San Felipe, his concession, designated the land, and solicited the title. The alcalde having caused the land to be surveyed and classified, issued the final title to Williams, as attorney for Del Valle, on the 12th day of Juno, 1832. A jury was waived, and the case, by-consent, submitted to the court. It was admitted that Williams had authority to act for Del Valle. There was judgment for the defendant, and the plaintiff appealed. The errors assigned, which were deemed by the court to require notice, were' the ruling of the court, admitting in evidence' the title to Del Valle and the-judgment on the merits. I. As far as relates to tile validity of the title for ten leagues of land, made to Santiago Del Valle, the questions involved in this case are very nearly the same as those in the ease of Hancock v. Horton, now depending in this court;, and as these questions are considered at length in the briefs filed in that case, it is not deemed necessary to do more than request that the court will regard the argument in that case as applying alike to the same points involved in this-(Mr. Sayles's argument, post.) II. The first objection taken to the introduction of the title to Del Valle in> evidence is, that (here were was no concession for said grant. The petition presented by Del Valle prays for eleven leagues and one labor of pasture land; and the concession or grant of the Governor, in response to this petition, is,, that “the eleven sitios he solicits,” &c., be granted to the petitioner. This is-the beginning of the purchaser’s right; it is the basis upon which the title is founded. It is a contract between two parties capable of contracting; and the terms used by the contracting parties clearly define the understanding of each. There is a distinct and definite offer of purchase of a specified quantity and quality of land, eleven leagues and a labor of pasture land on the one part", and an equally well-defined acceptance on the other part — the acceptance granting to the purchaser “the eleven leagues solicited by him; ” the labor being left out of the concession. This grant or concession is for eleven leagues of pastui-e lands, the character solicited by the purchaser, a concession which the Governor could not, under the law providing for the disposal \ of the public lands of the State, make to any one individual, it being a greater i quantity of that quality of lands than the law permitted tobe united in the-¡same hands. The 12th article of the nal ional colonization law of the Supreme Government of Mexico provides, that “if shall not be permitted to unite in the •same hands, with the right of properly, more than one league square of lands-suitable for irrigation, four square leagues in superficies of arable land without the facility of irrigation, and six square leagues in superficies of grazing land.”" (1 White's Recop., p. 602.) The history of the foundation of the Federal Government of Mexico, and: file foundation and government of the different State Governments of the-Mexican Republic, as well as the respective powers of each over the public-lands within the territorial limits of the States, are questions which have been frequently and, it is thought, ably discussed before this court in several cases-where they are to some extent involved. After the different mutations of' Government, from the final overthrow of the jurisdiction and authorities of the Spanish monarchy, to the meeting of the General Constituent Congress of the whole Mexican people, 1824, it will hardly be questioned but that that Congress stood invested with all rights and attributes of sovereignty that belonged to the mother country prior to the Revolution. And it matters not in what form or to what extent of authority the orders and decrees of the former Government may have been administered in the different departments and political divisions of the country, this Congress, representing the entire Mexican nation, succeeded to the absolute sovereignty of the whole country, with authority, unquestionable, by any earthly tribunal, to establish such form of Government as they might choose. Exercising this right, they established, in theory at least, “a popular representative and Federal Republic,” comprehending the provinces formerly known as the viceroyalty of New Spain, the captain-generalship of Yucatan, and the internal provinces of the east and west, out of which they carved the different States, prescribing to them the ' character of government to be established and the amount of jurisdiction to be exercised by them. (1 White’s Recop., p. 375 to 380; arts. 1, 3, 5, 7, 8, and General Provisions of the Constitutive Acts, &c.) The State Governments of the Mexican Republic were the creations of the Republic, with only such powers and jurisdiction as were conferred by the General Government. Whatever was not delegated to the State Governments remained, where it was vested by the Revolution, in the Mexican nation. The formation of the Mexican Confederation being just the reverse of the principle acted upon in forming the Government of the United States, where separate and independent States yielded a portion of their powers to a General Government to be managed and controlled independent of the States making the concession, but they retaining all powers not thus surrendered. In like manner did the General Government of Mexico retain all power not ceded to the States of the Mexican Union. That the General Government of Mexico retained the property in the public domain, and exercised the unqualified right of disposing of it up to the passage of the national colonization law of the 18th of August, 1824, is too well established by the previous legislation of the nation and the history of Austin’s first colony to admit of serious question. In transferring this right of property to the State, as was done by the law of 1824, it was clearly within the power of the General Government to make the transfer, with such limitations and restrictions as considerations of policy might have suggested, which -would be of equal power and validity as any other portion of the law. It is conceived that this act of the ISth of August, 1S24, became an organic law' to the State Governments, neither revocable' at the caprice of the General Government nor to be. varied at the pleasure of the States. It was the terms and conditions upon which the transfer of the right of property in the public domain was made, and equally binding upon both Governments. The State of Coahuila and Texas, in the colonization law of the 24th of March, 1825, expressly refers to and recognizes the governing force of the national colonization law; and in the 17th article of said State law particularly directs that the 12th article of the general law should be observed. (1 White, pp. 502, 605.) The 7th article of the State law particularly observes the provisions of the 4th article of the national law, and a disposition is shown throughout the entire provisions of decree No. 16 of the State to conform to the directions of the national colonization law. There is nothing in the 24th article, under which the grant is claimed, that contravenes the national law. The obligatory force of the national colonization law of Mexico and the nullity of any act "of the State Governments in violation of it have been recognized and declared by our own Government. In the 10th section of the general provisions of the Constitution of the Republic of Texas, the laws of Coahuila and Texas, passed in 1834 and 1835, contrary to articles fourth, twelfth, and fifteenth of the general colonization lawr, are declared to have been null and void from the beginning. If an act contrary to some of the articles of this law or to some of the provisions of certain articles be void, it is not thought that any reason can be shown why other acts of the Government, or of the officers of Government, contrary to other provisions in it, are not also null and void. The concession of the Governor, then, being in direct violation of said 12th article, is an act in opposition to the law, and does not amount to any concession. If it be contended that the clause in the concession, directing that the lands shall he classified to show the price to be paid by the purchaser, and the reference to the law under which the concession is made, qualify the other expressions used in the concession so as to allow an interpretation of it conformable to the 12th article of the national law, the effect of the objection taken would not he obviated as to the validity of the title really extended to Del Valle, for it will he seen from the classification set out in the title that of the ten leagues titled, eight are pasture lands and but two arable. The validity and obligatory force of the national colonization law of the 18th of August, 1824, seems to he fully recognized by the decision of this court in the case of Thorn v. The Republic. (3 Tex. R., 499.) And the necessity of the acts of the public officers being in compliance with the laws established for their governance is clearly laid down in the case of Good v. McQueen’s Heirs. (3 Tex. R., 241.) III. The third objection taken to the introduction of Del Valle’s title is, “tiie pretended concession is for a larger amount of lands than that embraced in tho title offered, and no evidence shown that the party had any authority to take a less quantity or divide his concession.” There is no law which authorizes a party receiving a concession for a definite amount of lands to make selections of a part of the amount in one place and of a part in another place. If it is permitted to a party to divide the concession to him into two parcels and receive titles to each selection, I can see no reason why a purchaser claiming eleven leagues could not jnst as well make eleven different selections of a league each and rcce'n c a title for each one, — which it is conceived would be contrary to the in ten tion of the law allowing the party to take so many leagues in superficies. As there is no law allowing the division to be made, the presumption is that it is contrary to law. I. For the following reasons, tho plaintiff says the title to Del Valle is null and void, and presents no obstacle to his recovery of tire lands claimed : 1st. That the grant of the Governor is without authority of law, lie having no power to extend the. benefits of tho 22d article of the colonization law of 1825, to purchasers. 2d. That the concession of tho Governor is not properly certified so as to require obedience; and that the subsequent acts of the other officers (surveyor and alcalde) were without authority of Jaw. 3d. That the alcalde of the municipality of Austin had no authority to issue the title, the lands being situated within the limits of the municipality of Bexar. 5th. That the concession was made upon conditions which have never been complied with. II. Of the right of the appellant to institute this inquiry, there can now be no question. If conditions precedent are coupled with a grant, no rights vest until the conditions have been performed. (2 Bl. Comm., 154; Co. Lit., 218; Eq. Ah., IOS; Tomlin’s Law Die., title Conditions.) “Ho procoedingin the nature of office found is necessary to resume a grant when the party to whom it was made lias abandoned the country. The fact of abandonment, ipso facto, vacated the. land and restored it to the. mass of public domain.” (Holliman v. Peebles, 2 Tex. R., 073; Horton v. Brown, 2 Tex. B., 78.) If. then, from a non-compliance with the conditions, the land, by the act itself, reverts to the public domain, what shall prevent those having an interest in the public domain from claiming that, as well as any other portion of it? The object of tills and similar siiiis is, to establish by legal evidence the existence of those facts — the forfeiture of the grant and the consequeut'reversion of the land; these being proved, then there exists no obstacle to the regrant of the land. ' Ii the grant were obtained by fraud or in violation of law, the land was never severed from the public domain, and was at all times subject to relocation. “A patent obtained by fraud is absolutely void ; the issuing of a patent isa ministerial act, which must be performed according to law; but if it is issued against law, it- is void.” (2 How. IT. S. B.., 318.) “Those who claim under a Void grant acquire no right.” (7 Pet. B., 222.) “It is a maxim (says Lord Coke) that if the consideration which is for the benefit of the Queen, be it executed or executory, be it on record or not on record, be not true or not duly performed, or if prejudice may accrue to the Queen by the non-performance of it, the letters patent are void.” (3 Co. B., 94.) If a grant obtained by fraud or in violation of law is absolutely void, confers no rights whatever, why should the existence of such a title prevent the holder of a certificate from obtaining a patent? If such a title has any standing in court, if it protects one acting utidbr it from the penalties incurred by a naked trespass, then it is not an absolute nullity, hut it does confer some rights. This suit, under the statute, is as much in the nature of a bill in chancery as of a proceeding at law, and is admirably adapted to protect the public interests as well as the rights of citizens: its object is not only to try the strength of titles and quiet the possession of the land, but also to cancel and annul grants which, obtained in fraud or in violation of law, confer no rights, but may servo to cast a cloud over the title of the real owner of the latid. The law under which this suit is brought seems to authorize and facilitate an inquiry into the validity of grants made by the political authorities. The holder of a certificate, by virtue of his entry, by merely designating what portion of the land lie selects, is authorized to bring an action of ejectment. By virtue of his certificate, he has a vested interest in the entire mass of public lands; and by virtue of his entry, an interest in the particular portion he designates. The right is properly given to him to apply-to the courts to perfect his claim, to remove any impediments that may exist in the way of acquiring an absolute and complete title. If'it were not the object of the law'to enable the holder of a certificate to institute a suit to set aside an outstanding title, why was he authorized to bring an action, upon a similar entry, and the necessity of proving an actual trespass dispensed with? (Hart.. Dig*, art. 3225.) This is the doctrine of the Supreme Court of the United States. In Folk’s Lessee v. Trousdale, (9 Crauch, 87.) Chief Justice Marshall says: “ It would be extremely unreasonable to avoid a graut in any court for irregularities in the conduct of t-liose who are appointed by the Government to supervise the progressive course of a title from its commencement to its consummation in a patent. But there are some things so essential to the validity of the contract, that the great principles of justice and of law would be violated did there not exist some tribunal to which an injured party might appeal, and in which the means by which an elder title was acquired might be examined. In general, a court of equity appears to be a tribunal better adapted to this object than a court of law.” In the case of Jackson v. Lawtou, (10 Johns. B., 23, opinion delivered by Chief Jus|ice Kent.) it is declared, “ that where two patents are granted for the same tiling, the second patent is inoperative until the first is set aside; and the first patent may be avoided by the second patentee by scire facias, or bill of information in the court of chancery, w.hicli is the only mode of vacating letters patent which are matter of record.” Under our statute regulating the action of ejectment, an entry confers as many rights asa patent; or, in other words, a suit may bo brought upon an entry as well as upon a patent. lienee, the distinction attempted to bo drawn between the. adjudicated cases and those, similar to the one at bar; that the claims must be of the same grade ; that the senior patent can be avoided only by a genuine, patent, does not exist. (Hart. Dig., art. 3230.) The existence of an outstanding title or prior grant might prevent his obtaining a patent. A mere naked possession of the land would be no obstacle in the way of issuing a patent; if lie is only authorized to sue an actual trespasser, lie might well be denied bis action uiuil his title was perfected. But if lie was not authorized to commence an action until a patent was issued, the existence of a prior grant, no matter how illegal or fraudulent it may be ipso facio, prevents his obtaining a patent, and consequently debars him of his action of ejectment. Would it not be a contradiction of terms to say that a fraudulent and a forfeited grant confer no rights and are absolute nullities, when the existence of such a grant prevents the holder of a land certificate from obtaining a title to or possession of the land designated by him under the law? IIow can it be said that a grant is an absolute nullity which severs land from the public domain for any purpose? Or how can it be said that lands included in a forfeited grant by tlie forfeiture ipso facto revert to the public domain when those lands cannot be located and patented? “Of avoid act a stranger may take advantage.” (10 Bac. Abr., 337, tit. Void and Voidable.) If a stranger may take advantage of a void act, may not one who lias an interest in the thing? ' But how can he take advantage of it if he be not allowed to show that the act is void? To deny the means is to deny the right. That this is the proper construction of the laws upon the subject-matter is also evidenced by the act of February 3, 1850, prohibiting locations in the colonics of Austin, DeWitt, and De Leon. (Laws 3d Leg., p. 118.) If certificates could not have been located upon titled lands within those colonies, and patented prior to tlie passage of that act, where was the necessity for its enactment? The prohibition of an act implies that it was lawful to be done heretofore, unless, indeed, the act was malum in se. We might dwell upon tlie policy of the legislation upon this subject. It is a matter of history that numerous grants of land were made by the former Government. A large class of these were swept away by the Constitution of the Republic; enough, however, were left to absorb a great portion of our territory. Many of these were virtuous grants — many were made in violation of law. To some of them conditions were attached which, at the date of the Revolution, wore unperformed, while of others the conditions liad been complied with. Hence, any general act, either confirming or annulling these titles, would have operated unjustly towards the State or towards individuals: towards individuals, in destroying vested rights; towards the State, in despoiling' her of territory for which no consideration liad ever been paid or services rendered. These grants, various in character, were left to judicial action, the law as it stood furnishing an ampie protection to the rights of the State and of the citizen. Tlie State lias never instituted proceedings to set aside these grants, many of which._i.tjs notorious, arc-fraudulent; but it lias properly been left Tothoso wTicThold claims for land against tlie State to guard their own interests, (aiul at tlie same time that of tlie State,) in protecting this fund, upon which they have a lien, from misapplication. This inquiry into tlie legality of prior grants is prosecuted at the expense of tlie citizen, and prosecuted vigorously,as tlie suits of the State seldom are. In this investigation she is represented by agents whose interests are identical with her own, who, in providing a fund for the payment of their own just claims, arc also wresting from tlie thief and the robber the public domain, which constitutes the wealth of tiie State. It is said that the public interests require that there should be an end of litigation ; that our land titles should be quieted. To the honest settler who lias acquired lands in good faith, who is justly entitled to it, the law furnishes an ample protection ; lie has no reason to fear an investigation of his title, though there may be informalities in its execution; but it is not tlie policj1' of the law to extend this protection farther; - she lias no sympathy for the speculator who, by a fraudulent title, attempts to monopolize immense tracts of land, to hold in liis own hands large portions of tlie fairest parts of our country to •extort enormous prices from tlie hardy frontierman, who. from the want of means, or want of disposition, is unable to play the part of a public robber. It ~ 'is believed that it never was the intention of the Spauish or Mexican Governments, in granting such large bodies as eleven leagues of land to individuals, to part with the fee; but, on the contrary, this was retained by the Government,., so that she could recall the title of possession whenever public policy required it, “The concession of a great extent of land,” says the attorney general of1 Florida, “for the rearing and pasture of cattle, constitutes no more than the usufruct of it for the time agreed upon; but the grantee has not, nor ever liad, the most remote right to solicit the proprietorship, for there is no law or regulation upon which to found it; and, consequently, the land does not go ■out of the class of public lands, since it is the same as if it was held on rent.” ■{2 White’s Beeop., 287.) It is still farther from the policy of this country to permit such large bodies of laud to remain in the hands of a single individual; it is the province of the court to keep in view the policy that actuated the political authorities in establishing a particular system. From the former decisions of this court we shall have no hesitation iu dismissing the several objections offered to the defendant’s title, although that right was denied ns by the court below. III. The first objection to the title is, that the concession of the Governor, extending to a purchaser the benefits of the 22d article of the colonization law •of 1825, was made without authority of law, and is therefore absolutely void. The concession was under the 24th article of the law of 1825, (Laws of Coa-liuila and Texas, p. 19.) which reads as follows : “Art. 24. The Government shall sell to Mexicans, and to them only, the lands they shall wish to purchase; but shall take care that there shall not be united in the same bands more than eleven leagues, and subject to the condition that the purchaser shall cultivate those he shall acquire by this ititle within six years from the acquisition, under the penalty of forfeiting the •.same. Allowing the aforesaid condition, the price of each sitio.shall be one hundred dollars for grazing land, one hundred and fifty for tillage, not irrigable, and two hundred and fifty for irrigable tillage land.” Article 22, the benefits of which, in this grant, are extended to a purchaser, 'is as follows: “Art. 22. The new settler shall pay to the State, as an acknowledgment for each sitio of grazing land, thirty dollars; for each labor not irrigable, two and a half; and for each that is irrigable, three and a half ; and so on proportion.ally, according to the class and quality of land distributed to them; but the payment thereof need not be completed under six years from settlement, and in three installments : the first in four, the second in five, and the third in six years, under a penalty of forfeiting the land for a failure in any of the said •payments. The contractors and the military mentioned in article 10 shall be exempt from this payment — the former as regards the land granted them as ..a premium, and the latter for that which they obtained agreeably to their patents.” An attempt to coalesce these two articles seems to me to be preposterous. Article 22 is for the benefit of the new settler, one of a favored class, which received their lands by distribution ; to him the lands were offered at the minimum price, for the payment of which long periods of credit, were extended; by other laws, he was, for given periods, exempt from the ordinary taxes. ■ (Laws of Coahuila and Texas, p. 97.) The consideration paid by the “new settler” for his land was its settlement and cultivation. The protection of the frontier against the hostile Indians was the great object had in view by the Government in offering such inducements for the immigration of foreigners; it was not her purpose to raise a revenue from them. But in the sale of lands in such large quantities to Mexicans she had auother object in view, namely, to replenish an exhausted treasury. To the “new settler” a small tract of land was distributed; to the Mexican a large quantity could be sold. Prom the former a small payment, asan acknowledgment, was demanded; from the latter a treble price was exacted. The settler was prohibited from selling his land until he had. completed the cultivation; the purchaser could sell at any time, his successor talcing' upon himself an obligation to complete the cultivation within the required time. (Art. 27.) If a purchaser under the 24th article was entitled to-any of (lie benefits of the 22d article, is he is not equally entitled to all? If he could claim (lie periods of payment, might he not also have claimed his lands-at tin; price fixed by that article? That (lie law of .1S2:> never contemplated a sale on”credit is also shown by the subsequent legislation upon the same subject. By the act of 1832, decree 190, article 13th, the Governor is authorized to sell to Mexicans on time;, and a provision is made for enforcing a prompt payment of the installments as they became due, by requiring one fourth of the price to be paid at the time of the sale, and declaring a forfeiture of that-, if the subsequent payments were not made. Also the same provision is made in the act of 1834, decree 27for the enforcement of the payments when the sale is made on credit, to wit, the payment of a part of the purchase-money in hand-Arts. 4-, 5, 6, E. of O. and T., p. 24S.) If, by the law of 1825, a sale on credit was contemplated, is it not strange that no provision whatever is made-for enforcing the payments as they became due, especially when we find in tlie, laws of 1832 and 1834, in which sales on credit, are for the first time mentioned, stringent provisions for this purpose? Again, by the 27th article of the law of 1S20, the purchaser was authorized to' alienate his land upon his-successor’s entering into an obligation to cultivate the same within the required period; if a sale by the Government on credit was contemplated by the law, why was not the “successor”, also obligated to complete the payments within the required period? By article 1C of decree 190, it is declared, “no change-shall he made with respect to the contracts which the Executive has ratified, or the concessions stipulated to purchasers or settlers by virtue of decree Mo. 1G of the 24th of March, l$2o; but the Executive shall take care that, within eighteen months from the publication of this law, the purchaser* enter into possession of the land which lie lias granted them.” If those lands had not been sold on credit, would not the Executive also have been directed to see that the purchaser made the payments? This grant, then, was made without authority of law. It requires no argument to show that when a written constitution and laws exist they are to-govern; the officers of the Government are the mere administrators thereof, with no power or authority but that with which they are directly invested. “ The issuing of a patent is a ministerial act, which must be performed according to law; but if it is issued against law, it is void.” (2 How. U. S. B.., 318.)-The Executive derived his authority to make the concession from the law; he liad no power to make it except in the terms of the law. He had as much authority to vary or dispense with the conditions in every instance as in this-particular one. If a sale made upon credit is good, then a sale of more than eleven leagues, or at a less price than that fixed in the law, is good. -We can-not. draw a distinction between these qualities of a grant; we cannot admit the power of the Governor to vary the terms of the concession in one particular, and deny his right to do so in all. There is the same distinction to be observed between grants made by the Spanish Government, or rather by the King of Spain, and grants made by the Mexican States, that exists between ail absolute monarchy and a constitutional republic; in the former, the granting power is (he law-making power — the will of the. sovereign, no matter how expressed. by a decree, grant or order, is the law. In the latter, the grant is made, by a ministerial officer, whose powers are defined and authority limited. IV. The. second reason assigned why the title of the defendant is-null and void is. that the concession made by (lie Governor is not properly authenticated. By reference to the title it will be seen that the concession is signed by the Governor and b}' the “ first officer; ” and that the certified copy of tlie. same, delivered to the party interested, is also signed by tile .“first officer.” The objection consists in the want of the signature of the Secretary of State. Article 141 of the Constitution of Coahuila and Texas reads as follows: “All laws, decrees, orders, regulations, and instructions circulated to the towns or directed to a particular corporation or person, as well as the copies-emanating from the department, shall be authorized by the secretary, and without this requisite they shall not be obeyed or be productive of faith.” Article 49 of the constitutive act, decree No. 19, declares, that “ all orders and decrees, regulations and instructions circulated to the towns or directed to-a particular individual or corporation, shall be previously signed by the secretary ; and without ¿his requisite, they shall not be obeyed.” The Constitution and the law are express and positive in their terms; there can be no doubt as to their meaning. I am aware that strong presumptions are indulged in favor of the legality of the acts of public officers ; but when, in a Government possessing a written constitution and laws, particular duties arc assigned exclusively to a certain officer, it would be too violent a presumption to assume that another could rightfully perform those duties. A public officer is presumed to act within the scope of'his authority; but when power is exclusively vested in one officer to do a certain act, no presumption can exist in favor of the rightful performance of that act by another. By the Constitution of our State, the Governor is required to sign such acts as he shall approve. If, in the Department of State, an act should be found “approved” by the Secretary of State or by the Commissioner General of the Land Office, would it be “presumed”-that those officers acted within the scope of their authority? How, then, in this case, can a presumption arise in favor of the legality of the act of the “first officer,” when the duty he has assumed to perform is given, in express terms, to the Secretary of State? To the testimony of the witness in regard to the existence of a law not contained in the public decrees I attach no importance whatever. He spoke only from a general impression, from an indistinct recollection. Ha¿l his recollection been ever so distinct, this is not competent evidence to prove the contents-of a written law. If, as the witness stated it to be his “ impression,” there was-a law authorizing the first officer to act in “ default ” or absence of the secretary, then the fact authorizing him to act should have been shown to exist. This officer had a limited jurisdiction. The fact which authorizes him to act out of the general scope of his authority should have appeared upon the record. That this was the usage in the Mexican States appears from an instrument found on the 791st page of 1 Texas Deports. In that the facts appear which authorize an officer'” to perform the duties assigned by law to another. Y. The next objection to the title of the defendant is, that the alcalde of the municipality of Austin had no authority to order the survey or issue the title of possession. By reference to the title, it will be seen that Did Yalle solicited the sale of' lands situated within the “department of Bexar.” The Governor in the concession ordered as follows: “ The commissioner for the partition of lands in the enterprise corresponding to the land solicited by the petitioner, in defect of which, or the land not being comprehended in any enterprise, the first or only alcalde of the respective or nearest municipality will comply with the dispositions given on the matter; will put him in possession of the said sitios and expedite the corresponding-title, previously classifying the quality of them to show the price which he must pay to the State.” The land selected was situated on the west bank of the Colorado, north of ■the San Antonio road, and within the limits of the municipality of Bexar. In 1832, the date of the final title, the alcalde of that municipality was exercising the functions of his office. The alcalde derived his authority to issue the title ■of possession, from the order of the Governor; none of the facts authorizing him to act existed. He was not the alcalde of the respective or nearest municipality, was not the officer directed to issue the title. “There are cases in which a grant is absolutely void, as when the State has no right to the thing ¡granted, or when the officer has no authority to issue the grant..” (Polk’s Lessee v. Wendel, 9 Cr. R., S7; Arredondo’s case, 6 Pet. R., 700; 15 Pet. R., 334.) “ Where the commissioner of a colony, under the colonization law of ■Coahuila and Texas, issued a grant to land : Held, That parol evidence might be introduced, to show the nullity of the grant, by proving that the land thus .granted did not lie within the territorial limits of such colony.” (Mason v. Russel, 1 Tex. R., 721, in which the question is fully examined.) “A survey ■made by a surveyor out of his county is a nullity.” (Lynn v. Scott, 3 Tex. R., 78.) For the purpose of showing that the alcalde had, inadvertently on his part, transcended his powers, the plaintiff offered in his petition to show that he, the alcalde, was ignorant of the Spanish language, and that his signature to the title was obtained by misrepresentation of its contents. This part of the petition was stricken out on exception, and the evidence consequently excluded. VI. Should the preceding objections be overruled, we then say, that the •conditions upon which the title of defendant is dependent have not been performed, and that, by reason of their non-performance, the title is void, and the land reverted to the public domain. It has been the settled policy of the Spanish Government, since the discovery .and conquest of the Americas, to plant colonies throughout her extensive domains; and, by the settlement and cultivation of the soil, reclaim it from the hands of the Indians and extend over it her own laws. The same ¡policy has characterized the Mexican Government; and provisions are found In the colonization laws of the Federal Government and of the States similar to those contained in the orders and decrees of the King of Spain, made at various times for the government of his provinces in America. By the 24th article of the colonization law of Coahuila and Texas, decree FTo. 10, the Government is authorized to sell to Mexicans eleven leagues of land, subject, however, to (ho condition “that the purchaser shall cultivate those he shall acquire by his title within six years from the acquisition, under the penalty of forfeiting the same.” If .it is decided by this court that purchasers are entitled to the benefit of the 22d article, the penalty of forfeiture is denounced by that article for a failure in making any of the payments. These •conditions are expressed in the grant under consideration; even if they were not, they are presented by the law, and are equally binding. (14 Ret. R., 334.) Let us see, then, what was the effect of similar conditions attached to grants made by the Spanish Government in Florida and Louisiana. By the laws of the Indies, (2 White Recop., 50,) persons who received grants of land were ■obligated to cultivate them within a certain period, under penalty of forfeiting "the same, unless they were prevented by some fortuitous circumstances, when the Governor might extend the term. (2 White, 48.) Those who had received lands in one settlement could not receive them in another, until they had completed the cultivation of the first, (Id., 49,) and had thus acquired a ■fee-simple title. By a “ royal ordinance ” it is declared that “ when any shall not apply themselves to improve in a proper manner the lands which shall have been allotted to them, the same shall bo taken from them (which I command to be done without mercy) and granted to others, who shall fulfill the ■conditions.” (Id., 71.) In the instructions of Governor Goyaso, for the distribution of lands in Louisiana, it is prescribed that the “ new settler to whom lands have been granted shall lose them without recovery” if he shall not have cultivated them within the required time. (Id., 233.) By the regula--tions of Morales, intendant of the provinces of Louisiana and West Florida, the new settlers were required to cultivate their lands within three years, “on the penalty of having the lands granted to them remitted to the domain, if this condition is not complied with,” (Id., 233;) and were prohibited from selling the same, until they had acquired a perfect title. (Id., 230.) In ISIS the Governor called upon his council for their opinion as to the effect ■of the conditions attached to grants. Saavedra replies that “ those who having •obtained a concession of lands have not cultivated them from the time they were granted, can have no right to them, much less will they have the title of absolute property, which is delivered after ten years’ possession, to establish which must be preceded by formal proof of compliance with conditions.” (2 White, 283.) Individuals who have not complied with the conditions, says another officer, in substance, have no right whatever to the lands, and them is no reason why they should not revert to the class of public lands. (Id.T 280.) By the laws of the Indies, those who had obtained titles of possession to land were required to sue out letters of confirmation, to obtain which they had to prove that they had complied with the conditions attached to the grant. (2 White, 52.) By a royal regulation of October 15, 1754, certain officers were appointed to grant confirmations, in consequence of the expense and inconvenience of applying to the King in person; and all persons in possession were required to apply to these officers for a confirmation of their titles. (Id., 04.) In 1799 Governor Morales declared that, notwithstanding the concession or the first grant, by which the settler obtained possession, he was not to be regarded as the owuer of the land until his royal title was delivered complete. (2 White, 237; 4 How. ü. S. B., 449.) These titles of possession have, then, been regarded by the Spanish .-authorities as imperfect titles, not vesting a fee-simple right in the holder until the conditions were complied with. They were so considered by the Supreme ■Court of the United States. In the case of Kingsly v. The United States, (12 Pet. B., 476,) it is decided ■“ that a Spanish concession, carrying on its face a condition the performance -of which is the consideration for the ultimate perfect title, is void unless the •conditions have been performed in the time prescribed by the ordinances of Spain.” This was reaffirmed in the ease of The United States ». Wiggins. i(14 Pet. Tí., 351.) In the last case the title was not confirmed, because the ap-pellee had failed to prove a performance of the conditions. The title of William Mills’s heirs (12 Pet. B., 215) was declared null and void, because the con•ditions had not been performed, and no excuse offered for non-performance. In the case of Buyck v. The United States, (15 Pet. B., 215,) of Delespine, (id., 319,) and of O’Hara, (Id., 275,) the titles were decided to be null and void, because no improvement or settlement had been made, and nothing done towards a performance of the conditions. In the Arredondo case (6 Peters) the title was confirmed, it being a grant in fee in consideration of past services. In Seton’s case, (10 Pet. B., 311,) and in Sibbild’s case, (Id.. 313,) there had been an equitable compliance with the conditions, and the titles were therefore •confirmed. Thus, the distinction existing between perfect and imperfect titles is recognized by the courts of the United States; the former vest a fee-simple right, the latter are void-by reason of the non-performance of their conditions within ¡the time prescribed by law. This is also the doctrine of the Supreme Court of Louisiana. In the case of ¡the Mayor, &c., of New Orleans v. Bermudez, (1 La. Coud. B., 127,) it is decided that lands granted by the King of Spain revert to the demesne on breach ■of condition, and that the city of New Orleans, having an interest in the land, (it becoming a part of the commons of the city on forfeiture,) was the-proper party to sue for the forfeiture of the grant. In the case of White «- Wells’s Executors, (1 La. Comí. R., 431,) a second grant by the Spanish Government is recognized, the conditions attached to the first having never been performed. "The policy of the Spanish Government,” says that court, "as-ís well known, was to invite immigration and promote the settlement of the. countiy. All the. general regulations in relation to land in the province, and almost every order of survey they issued, proved that the motives just mentioned were the ruling ones. Repeated proclamations of the Governors declared all orders of survey null the laud conceded in which was not settled within a limited time.”' The Government of the United Slates, when they took possession of the country, bjr requiring all those who liad inchoate titles to present them for approval, showed that they considered they required confirmation and a patent to vest the title. (Gonsoulius’s Heirs v. Brnshear, 3 La. CoikL K., 44G.) I By a reference to the laws of the Republic and State of Texas, we find that 7 the .performance of the conditions attached to grants made to colonists have-been j!&®,iisexlMLilh.,Jiuk.,tlmy_ars^ large.r-daitns. By Lswticle ISth of the piau of the provisional government of Texas, all illegal and fraudulent grants and sales of laud were solemnly declared to be null and void* By section Will of the Constitution of the Repimlic of Texas, grants made to ,1 oil it T. Mason and others', amounting to eleven hundred leagues of land, and all eleven leagues located within the border leagues, contrary to law, were declared to be null and void. Thus this immense class of fraudulent claims was swept away; it was not within the power of subsequent-Legislatures to revive them or to give them, vitality. The act of December 22, 1836, establishing a General Laud Office, seel ion 21, provides that conditions attached to-tales issued under the colonization laws to colonists bo, canceled, and “ that all such titles be ratified and expressly providing that the benefits of this act shall not extend to any grantee for a greater amount than one league and labor. In the act of December. 1S37. there is the same provision, with the same limitations. (Hart. Dig-., arts. 1S02, I860.) 7 Is not this a direct recognition by the political authorities that .titles with j .conditions attached arc imperfect titles? If not, why should the Legislature* fhy a solemn act, ratify and confirm such titles? If no importance was"attached to the performance of “ tiie conditions,” or no penalty consequent upon their non-performanec, why were they canceled? Those who claim lands under a grant of larger amount than one league and labor, are excluded from the benefits of this act. Does it not, then,'follow, that conditions attached to larger grants are still in force, that they must be performed, and that the titles are yet unconfirmed? I have endeavored to show in (he former part of this argument that titles issued under the Spanish law willi conditions attached were imperfect and ' inchoate titles, until they had been confirmed by the political authorities, to obtain which, proof of performance of conditions was requisite. In l-lie very-first legislation in this country upon the subject of lands, we find the political authorities confirming a certain class of titles, having first canceled the conditions. Will any one contend that eleven-league grants stand on a better footing than head right claims? Will it be said that the holder of a concession for eleven leagues has an indisputable right to his land, without having paid one cent for it, or without having attempted its settlement., or without ever having been in the country, when the colonist is required to pay the dues for his lands, and to remain within the country to gain the benefits of the act above alluded lo? The headrights of colonists and settlers, and their titles, have always been regarded as among the most favored class of claims and titles. Their conditions have been, to a great extent, dispensed with, while those attached to claims and titles for a larger amount are still impending over these-■titles. (Trimble et al. v. Smithers, 1 Tex. B., 804.) Would it not be a monstrous absurdity to say that a purchaser, under the 24th article of the colonization law, claiming the benefits of the 22d article, as to time of payment, may hold his lauds, not having complied with any of tiie conditions, while the ■“ favored class ” must show a compliance with two of the most important conditions, viz, payment of the dues and remaining in the -country? How can they be said to" be.favored,’when they are required to do so much more than tiie holder of a larger amount of land? It is not so; 'the conditions attached to larger claims are not canceled, but, in the language of our Supreme Court, are “still impending over them.” In the act of 1841, to quiet land titles within the twenty Border leagues, the claimant is required to show a performance of the conditions, as well as the legality of tiie title. (Ilart. Dig., art. 2074.) The act of February, 1850, providing for the. investigation of land titles in certain counties, provides for the confirmation of perfect tilles and of imperfect titles issued by the former Government, which might, have been matured into perfect titles under its laws and usages. (Hart. Dig., p. 623.) Do not these two acts directly recognize the necessity of confirmation of titles? If the conditions are still impending over the title, what is the penalty for non-performance? I answer in the terms of the law, forfeiture of the land. (L. & D., p.19.) What is the consequence of a forfeiture? The laud, ipso facto, returns to the public domain. It cannot be believed for a moment that the Government of Mexico, or any of the States whose colonization laws were modelled after hers, considered it necessary to institute proceedings to annul the titles of possession, where the conditions attached to them had not been performed. We can find nowhere any law authorizing such a proceeding; had it been necessary, there would have been some provision made, as it was well known that many had failed fo ■comply with the conditions. But we find simply the penalty of forfeiture denounced, and the proper authority was. authorized to take back the lands and grant them to others; the former grant was no obstacle to a regrant. Upon tiie fact being made known to the Government, the land was regranted to the informant. Such was the ease of White v. Wells, (1 La. Cond. B., 430.) “ The father of the plaintiff obtained, on the 20th of April, 1793, an order of survey for the tract of land in contest. The conditions of the grant were as usual, that he should make some improvement and open the road within the first year, and settle the land before the expiration of three j'ears. The grantee, however, suffered the three years to elapse without attempting to do anything on the land, nor even to have it surveyed. A few days before the expiration of three years, the late Levy Wells, the defendant’s testator, applied for the land and obtained an order of survey; and two days after the ■three years had elapsed, to wit, on the 22d of April, 1796, he received from, the Spanish Government a complete and final grant to the same. The title of Wells was sustained by the court.” Wü.,hear._oí no “.proceeding” instituted to annul the former title. We do not find the first grantee cited to appear, but within three days after the expiration of the prescribed time for the performance of the conditions, the land is given to another by a final and complete .grant. In the case at bar, the land was sold on credit; it would have been poor policy on the part of the former Government to sell her land on credit, and then beat the expense, trouble, and delay of instituting a “proceeding” to recall the title, on account of non-payment. Such a policy, persisted in for a few years would have rendered it necessary for her to sell a large portion of her public domain to pay the expenses of giving away the balance. Mexico never adopted so foolish a policy as this. If, then, a concession, the conditions of which were unperformed, was void, ■ (12 Pet. B., 476,) and was no obstacle to a regrant of the same lands by the former Government, shall it prevent a regrant by this Government? The proposition is simply this : the appellant says that the title of the appel-lee is void, because the conditions attached to it have not been performed, that the land is forfeited, and asks that the Government should grant it to him. The appellee, at the trial, made an abortive attempt to show a compliance, with the conditions of his grant. The testimony of the witness, introduced for the purpose of proving' a payment of the Government dues, showed an attempt to practice a glaring fraud upon the officers of the Government. Their failure wa«, however, covered by the charge of the court. I therefore deem, it unnecessary to discuss the effect of a payment of the dues to the present Government, there being no law authorizing such payment. I. We contend that the title issued to Del Yalle conveyed to him the absolute property to the lands specified; that it was a final and complete title, and not a mere permission, concession, or inchoate title. Under the Spanish law, a concession is a decree of the granting power of the Government, conceding to the party soliciting a certain quantity of land to be-located and surveyed, and to which conditions are usually annexed. '£ho-4eer or absolute title, does not pass, by virtue.of the concession, but'remains in the Government. These concessions, decrees, or certificates are of no value and effect, unless the prescribed conditions have been complied with, and without such compliance they deserve no regard; and the grantees, by means of them,, can claim no right to the lands granted, but the same is considered vacant. (2 White Itecop., 2S3; Id., 230, art.. 18.) Upon the performance of the conditions prescribed in the concession, the grantee acquires ail inceptive, inchoate, equitable title to the lauds granted,, but does not acquire the absolute fee until the final title is extended to him by the political authority of the Government. Such were the titles adjudicated by the Supreme Court of the United States-in the following Florida cases: United States v. Kingsly, 12 Pet. R., 476; same v. l&ills’s Heirs, Id., 215; same v. Scton, 10 Id., 311; same v. Sib-bald, Id., 313; sameu. Wiggins, 14Id., 334; same v. Buyck, 15Id., 215; O’Hara v. United States, Id., 275 ; United States v. King e( al., 7 How. R., 833 ; Me-nard's Heirs v. Massey, 8 Id., 293. In all these cases, the titles exhibited by the claimants were concessions, which did not convey the fee to the claimants without further action upon the-part of the political authority. Hence the necessity of the provision in the treaty between Spain and the United States for the cession of Florida, providing for the confirmation of such titles by our Government and the protection of the grantees. In no case did the holder of or claimant under one of these inchoate ot imperfect titles acquire the dominion and full prQperty over the land designated,, until confirmation of Ills title by a judicial decree, under the act of Congress providing for their investigation, or an express confirmatory act of Congress, But for the provision of the treaty, the Government might have confirmed or rejected them, regardless of the equities attending' them. The final and complete or absolute title, or title of proprietorship, vested in the grantee irrevocably the right of property, and conferred on the possessor the power to sell, cede, exchange, trausfer, and alienate at his will, as well by himself as iiis heirs and successors, without a reservation by the crown, of the-direct dominion or anything else whatsoever. (2 White’s Recop., 283.) Such title invested the grantee with the legal seizin and possession of the land “in the right, title, legal possession and estate, property and ownership legally resulting upon a grant of lands to the owner.” (United States v. Arredondo, 6 Ret. R.) Of this class are the titles in the following cases: Arredondo’s ease, supra; Clark’s case, 8 Pot. R., 436; Delespine’s case, 15 Id., 226 ; Perch-man’s case, 7 Id., 51. These titles were held by the Supreme Court of the United States to be final, absolute, and perfect; that they divested the Government of the title to tire soil, and vested the fee in the grantees; stood confirmed by the treaty of cession, and were valid, regardless of the-treaty stipulation providing for a judicial confirmation. In the case of White v. Wells, (5 Mart. R., 652,) the title exhibited by the plaintiff was an order of survey, or concession upon conditions, upon which the final title was never extended, and which, consequently, did not confer the-absolute dominion over the land or the fee upon the grantee; that exhibited by the defendant was a final title subsequent in point of time, but superior in strength to the older inchoate title of the plaintiff. This case fully explains-the difference between an inchoate and final title under the Spanish law. It is respectfully contended that, under the authorities cited above, the grant to Del Valle is a final title, and that it conveyed to him the absolute title to-the lands granted. It contains, first, the concession or order of survey of the Governor, which constituted the inceptive or inchoate title, under the Spanish mode of creating grants of land by the Government; secondly, the survey, J vyithout which the final title could not have been extended; and, tflircíly and-lastly ¡“the grant, which was the full, perfect, final, and complete title executed by the agent designated in the concession and clothed with the power to execute it. It is declared in the title that the same was issued, and “ a testimonio-ordered to be taken and delivered to the party interested, that he might possess, use, and enjoy the lands which had been sold to him, he, his children, heirs, and successors, or who of him or them may have cause or right to represent,” &c. It is wholly dissimilar to those imperfect titles exhibited in the cases above cited, and which were presented to the courts of the United Stales for confirmation, under the act of Congress and Spanish treaty. It is believed to be a stronger instance of an absolute title than that in the case of Arredondo. Like-that, “ the grant is in full property in fee; an interest vested on its execution, which could only be divested by the breach or non-performance of the condition annexed to it.” The concession was made by the Governor of the State, and the absolute title was extended by the commissioner appointed for the purpose, according to the law and the invariable practice of the Government. The grant to Arredondo was made upon the political consideration of settling two hundred families upon the land for the increase of the population of the province. No other service was to be performed, and no moneyed consideration was paid or to be paid. In this case the main consideration and inducement to the grant was the price to be paid for the land, under the 24th article of the colonization law of 1825. The subsequent condition of cultivation within six years was a consideration of but slight and minor importance, for the nonperformance of which it is believed that the title of the grantee would never have been questioned by the grantor had Texas remained a department of Mexico. The language employed in the title to Del Valle is fully as comprehensive as in that of Arredondo, and the title itself is more formal than those in Perch-man’s case (7 Pet. R., 51) and in Delespine’s. (15 Id., 226.) If those were absolute, final, complete, and indefeasible titles, (and so they were held to be by the-Supreme Court of the United States,) then that executed to Del Valle is most certainly so. If it is said there is a condition annexed to the title to Del Valle,, it is answered, so títere was to that of Arredondo, and that, in the latter case,, the performance of tiie condition was the only consideration to the grant;, while in the former, the consideration was the price paid or to be paid to the Government, and the performance of the condition was a matter of but slight importance. It is, therefore, respectfully contended, and, as we think, is fully established by the authorities cited, that the grant to Del Valle “is a complete and perfect title, vesting in him the legal seizin and possession of the land specified; that this seizin and possession are coextensive with his right, and will continue until he is ousted by adverse legal possession; ” that it conveys to him “ the Tight, tille, legal possession, and estate legally resulting upon a grant •of lands to the owner.” It follows as a legal consequence. II. That the condition annexed to the title isa condition subsequent,and not precedent. “ 'When a condition must be performed before ihe estate can commence, it is called a condition precedent. But where the effect of a condition is either to enlarge or defeat an estate already created, it is then called a condition subsequent.” (2 Cruise’s Dig., 3; 4 Kent, 125.) It cannot be contended for a moment that the condition annexed to the title to Del Valle had to be performed before his estate could commence, because we think we have conclusively established by authority that the .estate commenced from the execution of the grant; and if so, the effect of the condition was to defeat the estate already created, and was consequently a condition subsequent, and not precedent. III. It is contended, in the third place, that for the non-performance of a condition subsequent contained in a deed or grant, no person whatever but the . grantor can take advantage; and that the title of the grantee cannot be called i in question for the reason of such non-performance until re-entry by the I grantor, or until he shall have done some act to divest the estate of the grantee. (, “A condition, or the benefit of a condition, can only be reserved to the donor, feoffor, or lessor, and their heirs, and not to a stranger.” (2 Cruise’s Dig., 4.) “Conditions can only be reserved for the benefit of the grantor and bis heirs. .A stranger cannot take advantage of a breach of them.” (4 Kent, 127.) There linnet bo an actual entry for the breach of the conditions, or there must be, in / the case of non-payment of rent, an action of ejectment brought as a substitute / as provided by statute, &c. (Id.) These are the doctrines of the common law, and we apprehend, that, upon a close investigation and careful analysis, not a single adjudication can be found to nullitate against them. And it makes no difference whether the condition is in deed or in law. In the case of King v. Armey, (2 T. It., 515,) Aslmrst, J., in delivering •the opinion of the court upon the question whether a formal judgment was necessary to avoid letters patent granting a franchise, said, “ there is no formal .-adjudication that such judgment is necessary; but. as there had been some contrariety of opinion, it might be done ex abundanii cauiila, or to show the election ■of the ctown to take advantage of the forfeiture. But that does not prove the .absolute necessity of it. * * * * The granting of a new charter, therefore, inconsistent with the former, will amount to a declaration on record that the crown elects to take advantage of the forfeiture.” This case proves that, although a formal judgment may not be necessary to declare a forfeiture of a franchise, yet it is necessary that a declaration on record should be made, that ¡'the grantor elects to take advantage of the forfeiture. " ( In the case of United States v. Grundy et al., (1 Pet. Cond. R., 554,) “ the question made at the bar-was, whether by virtue of the act of Congress the absolute property in the ship or vessel vested in the United States, either in fact or in contemplation of law, on the taking of the false oath, or remains in tfie owners until the United States shall perform some act manifesting their election to take the ship and not the value.” Chief Justice Marshal], in delivering tlie opinion of the court, said : “It has been proved that in ail forfeitures at •common law, nothing vests in the Government until some step shall be taken for the assertion of its legal right,'after which, for many purposes, the doctrine of relation carries back the title to the commission of the offense. Where a forfeiture is given by a statute, the rules of the common law may be dispensed witli; and the tiling forfeited may cither vest immediately or on the perform-.anee of some particular act, as shall he the will of the Legislature. This must •depend upon the construction of the statute.” In the United States v. 1960 Bags of Coffee, (8 Cr. R., 398,) the question before the court was, “whether the divestiture of right took place on the commission of the offense, the seizure of the goods, or'the condemnation;” and it was held in that case that it took place upon the commission of the offense, and overreached a subsequent sale to an innocent purchaser without notice. y Neither of these cases, however, controvert the position that some act is ne-j cessary to be done on the part of the Government to declare the forfeiture by\ judicial sentence or otherwise. These suits were, in fact, instituted for the purpose of declaring the forfeiture. That a judicial condemnation is necessary to declare the forfeiture contemplated in the above cases under tiie act of Congress, is established in Caldwell v. United States. (8 IIow. R., 381.) It is there held “that tiie title o£ tiie United States to the forfeited goods is not consummated until after judicial condemnation; but the right to them relates backwards to the time the offense was committed, so as to avoid all immediate sales between the commisson of the offense and condemnation.” Although the cases cited from the Supreme Court of tiie United States are generally relied upon as being opposed to the posilion we are attempting to establish, yet we conceive that they are wholly inapposite. Were this a proceeding on the part of the State to retake the land by reason of the forfeiture, and tiie appellee set up claim to it- as an innocent purchaser without notice, these authorities might be appropriately cited to prove when the title of the Government to tiie tiling forfeited vests. The first two cases cited are silent as to what shall be done to establish the fact that the.title has vested, and the last declares that a judicial condemnation is necessary to consummate tiie title. But there is nothing contained in either of the above eases which tends in the least to support the position that a third person can take advantage of the forfeiture, in a collateral proceeding in which tiie Government is not a party, before a judicial sentence declaring the forfeiture, or some act done by the Government showing her intention to take advantage of it. The question is respectfully asked, is there not a wide, a palpable and marked distinction between a forfeiture imposed by statute for a criminal violation of a law and one imposed for the non-performance of a condition subsequent upon the grantee of lands? The first, is a penalty imposed for the commission of a1 criminal offense of which any and all pen-sons ought tobe permitted to take advantage; tiie second isa reservation in favor of tiie grantor which is not favored by law, and is strictly construed, and for a broach of which none but he or his heirs can take advantage at common law. Are the analogies existing between the two cases sufficient to justify an enlightened tribunal to make an application of the rules which govern forfeitures'll! the first ease in -determining questions arising in the court? Shall the stringent rules which govern the disposition of forfeitures occasioned by tiie fraudulent and criminal conduct of individuals, in violation of tiie laws of the Government, be applied in strictness to grantees of land for tiie non-performauco of an unimportant subsequent condition ? Hence, we contend that although it should be held that, upon the commission of an act which the law denounces as a crime, and imposes the forfeiture of goods as the penalty, and of which third persons, in a collateral proceeding, may take advantage, still no authority could be derived from such a principle, for want of analogy between the cases, to authorize a similar advantage to be taken of a forfeiture dependent upon tiie non-performance of a condition subsequent annexed to a grant of lauds. The cases of Kennedy & Moreland ®. McCartney’s Heirs, (4 Port. R., 141,) Cromlielm v. Mintcr et al., (0 Ala R., N. S., 594,) decided in Alabama, upon Indian reservations under the treaties with the Creeks and Cherokees, do not at all conflict with or militate against the position we have assumed. In truth, ’ they sustain it. It isa recognized principle of the Government of the United States that the fee-simple to tiie lands occupied bj' the Indians resides in the Government. The title of the Indians is one of occupancy and possession. (Clark et al. v. Smith, 13 Pet. It., 19o; G Or. It., 87; 9 Id., 11.) The treaty, by a reservation of one mile square of land to every friendly chief or warrior, &c., did not confer upon or grant to such chief or warrior the fee-simple estate. That remained in the United States; a mere right of occupancy was granted to the Indian, to he determined, not forfeited, upon his voluntary abandonment. There was no estate granted beyond that of occupancy, no penalty declared, and no forfeiture imposed. Upon the abandonment by tiie Indian, the right of possession, of necessity, and not by way of penalty or forfeiture in consequence of the act of abandonment, reverted to the United States, the owner of the fee. The Indian, by his own act, abandoned the possession and renounced the right reserved to him. Tiie right of possession returned to the United States in the same manner as that of a reversion, (which it was,) upon tiie determination of tiie particular estate. The right granted had expired by the act of the party. (4 Kent, 12G, 127.) Upon the abandonment by the Indian, the authorities of the United States resumed the possession of tiie land and caused it to be sold as other public lands. Although these cases are wholly wanting in analogy to that before ! lie court, they nevertheless prove the election of the United States to take advantage of tiie abandonment, (or forfeiture, if it may be so called,) by resuming the possession of the lands through her Constituted authorities and causing the same to be sold. This amounted to a declaration on record that the Government elected to take advantage of tiie forfeiture. In the case of University, &c., v. Winston, (5 Stew. & Port. II., 17,) there was a contract of purchase and saje. The fee did not pass, but ivas made to depend upon the performance of a precedent condition. The title of tiie purchaser ivas equitable only, and lie had no right to demand the legal title until payment of the purchase-money. And so in Gill v. Taylor (3 Port. R., 182) and Rogers v. Rawlins el al. (S, Port. R., 325.) In these cases the purchasers acquired no title to the lands. By failing to comply with the conditions and provisions, of the law, they forfeited the rights acquired by the contract, but did not forfeit tiie laud. There was no necessity for any act to be clone on the part of the Government, to reclaim the legal seizin and possession of the land, which she had not partee! with. But she did elect to take advantage of the forfeiture by regrauting or selling the lands to another. Nor is it apprehended that there is anything in the laws of Spain or Mexico, or in tiie usages of those Governments or those of tiie State qf Coahnila and Texas, at all inconsistent with tiie proposition which we are attempting to establish. In Florida the evidence of forfeiture ivas the regrauting of the lands to another. (Heirs of Holliman v. Peebles, 1 Tex. R., 701; 2 White’s Recop., 283, 289.) Was not that fact a declaration of record that the Crown elected to take advantage of the forfeiture? (The King v. Armey, supra.) Under the colonization law of Coahnila and Texas, in case of the non-performance of conditions, it was the duly oE tiie political authority to take back the lands and titles. (Col. Law, Co. and T. Decree, No. 1G, art. 26.) By the “ Recopilación of the Laws of the Indies ” the penalty was the forfeiture of the land; “that the same may be vacated and granted to some other settler.” (2 White’s Recop., 51, art. 81; see also Id., 52, arts. 84, 87, 90; Id., p. G2; Preamble, 5, 3, 4, Id., 81.) Such -was the case in White v. Wells, (5 Mart,. R., 052,) Boissier v. Metayer, (5 Mart. R., 078,) Fleitas et al. ». Mayor, &c., (1 Mart., N. S., 430.) But, it is asked, did those Governments ever regrant lauds after the final title had issued? Can an authority he shown or a case found to warrant such a conclusion ? The authority in White’s Recopilación refers to incipient claims. In White v. Wells (5 Mart. R„ 052) an order of survey was granted to White, who failing; to perform the conditions, a Anal and complete «'rant was issued to Wells. In Boissier et al. v. Metayer (5 Mart. R., G78) the title set up by Boissier was an order of survey, granted in 1789 by tlie Governor of Louisiana. It contained the usual conditions of settlement, &e. Without performing the conditions, the grantee surrendered the title into the hands of the commandant at Natchitoches, after which the land was regranted by a similar title to Metayer. And so in Fieitas et al. v. Mayor & Aldermen of New Orleans, (1 Mart. R., N. S.. 430.) the title set up by Macarty, who was cited by the city to defend the suit, was a concession, and not a complete grant, after which the land was «’granted to the petitioner. These cases only prove that when a concession or order of survey liad been granted, and tlie conditions not complied with, that the evidence of snob non-co’mpliance was tlie regrant of the land to another. They are only eases establishing tlie doctrine, that whatever equities ¡nay exist in favor of private individuals, as long as tlie legal title remains in the sovereign, he may grant it to whomsoever he will. (Corp. Victoria v. Kemper, 3 Tex. R., 135.) They do not prove the practice of the Government in a case of a non-performance of the subsequent condition attached to tlie title of proprietorship. After the title of proprietorship issues, the grantee is exempt from conditions. (2 White’s Recop., 283.) It was only incipient and inchoate titles, such as have no standing in a court of justice, (Trimble v. Smithers, 1 Tex. R., 807,) and which did not divest the Government of the legal title, that were overreached by a subsequent regrant of tiie lands, according to the practice under the Governments of Spain, Mexico, and the dependent State of Coahuila and Texas. In no case, as we apprehend, can it be shown that the Government ever regranted lands after parting with tlie title of proprietorship ; for the Government is not presumed to grant the same laud twice. (Dinted States v. Arredondo, G Pet. R., 737; 7 Johns. R., 8.) And were it to appear that two complete titles existed for the same land, the legal presumption would be that tlie junior title issued through mistake rather than that the elder had been forfeited. (8 Co., 274, b; 1 Vent., 176; 2 Johns. R.. 2G3; Fletcher v. Peck, G Cranch, 87; United States v. Arredondo, supra.) By the lavrs of Spain those things which the King gives to any one cannot he taken from him, cither by the King or any one else, without some fault of his. (White’s Recop., 99.) Under the'general colonization law of Mexico, (art. 22,) “ the date of t lie concession of lands constitutes tlie inviolable law for the right of property; ” and one occupying land, through error or by subsequent concession belonging to another, acquired no right farther than a preference in case of sale. (Laws Co. & Tex., Dec. No. 1G, art. 21.) We conceive that tlie rule laid down by Ashurst, J., in the King v. Armey, supra, that a judgment declaring, or a declaration or record, that the Crown elects to take advantage of the forfeiture is necessary, not only at common law, but under the law of Spain, Mexico, and the colonization laws of Coahuila and Texas. We also conceive that wo have shown that a regrant of lands, under the laws of Spain, was only evidence of tlie forfeiture of ímperfaat,tiÜ£s, and under the colonization laws of Mexico and Coahuila and Texas, it was no evidence of the forfeiture of those titles. As lias already been shown, a regrant of lands under the colonization laws of Mexico and of Coahuila and Texas, without the land and titles having first been taken hack by the political authority, was no evidence of forfeiture by the original grantee; nor did such subsequent grant at ail impair bis title. But, in all such cases, the question of right was determined by the date of tlie concession. IV. Did the Declaration of Independence and the establishment of the new Republic change the right of parties to their lands, or the rules of evidence establishing them ? Is there anything in the laws of the Republic of Texas giving more potency and energy to a location and survey, made at the instance of a private indi vid nal, tiran attached to the deliberate and solemn acts of the former Government, made through her agents — empresario, surveyor, and commissioner? If the date of the’concesssion under the former Government constituted an inviolable rule of right, (Gen. Col. L. Mex., art. 22,) by what law of tire new Government is that rule changed? If, under tire laws of Coahuila and Texas, lauds once granted could not be regranted until taken back by the political authority, by what law of the Republic of Texas is that rule changed? If, under the laws of Coalmila and Texas, the lands and titles should be taken back by tire political authority before the lauds could be regranted, was it not equally necessary that they should have been taken back before a valid grant could be made under the laws of the Republic, and equally so under the laws of the State? If it was necessary in the first case, it was undoubtedly so in the last. Tills view of the question is fully confirmed by the action of the, convention which framed the State Constitution. Article 13, section 4, of the Constitution provides that “the Legislature shall by law provide a method of determining what lands may have been forfeited or escheated.” It is not intended by the ,- provision of the Constitution that the Legislature shall provide a substitute for that contained in the colonization laws, that the lands and titles shall be taken back by the political authority. If, under the former Government, lands could not be regranled until declared forfeited by the political authority, how is it possible that a regrant of such lands can be obtained under onr present laws until the Legislature shall have carried out this provision of the Constitution, and a forfeiture ascertained under it? Is this provision of the Constitution nonsensical, nugatory, and useless? Or rather is it not a declaration that no mode then existed; and that the State alone, and in the mode to ho provided by the Legislature, shall investigate and determine what lands may have been forfeited ? Until the Legislature shall make such provision, we contend that it is not competent for a private individual, by some plan or mode which ho may devise and provide, to arraign the proprietors of lands before a court of justice, requiring them to show that they have not forfeited the lands which they may have purchased of the former Government of Coahuila and Texas, by reason of the non-performance of a subsequent condition, of minor importance to the Government, at the time it was provided for in the grant, and become wholly unimportant to the Government of the new Republic and to the State of Texas. I cannot see upon what legal authority, rule of right, or reason of propriety, lie should be permitted to do so. jIhe__cqnditioo was imposed for the advantage of the grantor; and the general rule is, none but the grantor or his heirs can, take advantage of the jiqn-performance. The plaintiff in this case had no part or iuffefesiin ""the"execution of the grant, and consequently has no right to complain for the non-performance of the condition or to take advantage of the breach. The appellee lias acquired title to the lands by and through various mesne conveyances from Del Valle down to himself, and under circumstances that might well lead him to suppose that lie was acquiring a just, valid, and indefeasible title. Should he now be put to proof at the instance of a private person and in a collateral procedure, which the Government had never re'quired of the original grantee? If it can be required of him in this suit, it may also be done at any subsequent time, however remote, and of any purchaser of the title, however’innocent. A proceeding at the instance of tiie Government upon the question of forfeiture for the non-performance of the condition would finally settle the question, and preclude all persons, in every case and at all times, from again raising it. In a proceeding like this, nothing is settled, and no pei-son is bound by the judgment. A judgment against the plaintiff will not preclude him from again locating upon the land, instituting suit, and traveling ,over the same grounds as those’ in the present case. The policy of this Gov- * * eminent is the repose of titles and the suppression of vexatious litigation, that lands may be settled and the wealth and resources of the country be developed. Nothing could throw a darker cloud over all the land titles of the State than the judicial sanction of the right and principle which the, plaintiff claims in this suit. Y. But, even admitting that tlie applicant may call upon the court to declare the lands forfeited which were granted to Del Yalle, for tlie non-perfonnanco of the condition, it is insisted that, in such case, it is incumbent on the party seeking to establish the forfeiture to prove the facts upon which tlie forfeiture depends. (United States v. Arredondo, 6 Pet. R.) It would be preposterous to put the holder of lands, under a title containing á condition subsequent, upon the proof of performance at the instance, of every person who might suggest that such condition had not been performed. Under such a rule the validity of all such titles would depend, not upon the documentary evidence, but upon the parol testimony of witnesses. There is no proof in reference to the performance of the condition, and we therefore conceive that tlie legal presumption is that the condition was performed. YI. It is an universal principle that where a jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his discretion, the acts so done are binding and valid as to tbe subject-matter; and individual rights will not be disturbed collaterally for anything clone in tlie exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public, or any person denying its validity, are powei in the officer and fraud in the party. (United States v. Arredondo, 6 Pet. R., 729.) And so we conceive that the only questions that can legitimately arise in this case, are, 1st, power in tlie Governor of Coalmila and Texas to make the sale upon the terms and manner in which it was made; 2d, power in the commissioner to extend the title; and, 3d, fraud in Del Valle, in obtaining it. The Governor of Coahnila and Texas had full power and authority to grant in sale to Del Yalle the eleven leagues of land conceded to him. By decree No. 1G, article 24, it is provided that “the Government shall sell to Mexicans, and to them only, tlie lands they shall wish to purchase, but shall take care that there shall not be united in the same hands more than eleven leagues, and subject to tbe condition that the purchaser shall cultivate those he shall acquire by this title within six years from the acquisition, under the penalty of forfeiting tlie same. Allowing tlie aforesaid condition, tbe price of each sitio shall bo one hundred dollars for grazing land, and one hundred and fifty for tillage laud, not irrigable, and two hundred and fifty for irrigable tillage land.” Under tliis article of the colonization law, Del Yalle petitioned for the purchase of eleven leagues and one labor of land. The Governor concededlo him the eleven leagues, appointed a commissioner to issue the correspondent title, previously classifying tlie quality of the land, to show what must be paid to tlie State, and, for the payment, conceded to the petitioner the terms designated in the 22d article of the law. The price to be paid for the land was fixed by the article of the law under which it was sold; the Governor had no authority to sell it for a less price, nor did lie do so. Tlie language employed in the concession, “for which payment I concede to the petitioner the terms designated in tlie 22d article of the said law,” refers not to the price, but to tbe time of payment. It was so understood by tlie commissioner, who was directed to classify tbe quality of the land, to show what must be paid to tlie State. In making the classification, the commissioner declared that two sitios belonged to tlie temporal or tillage land, and eight sitios lo the pastoral class or grazing land; for which the title then declares that “ the amount to be paid is one thousand one hundred dollars, as provided in the 24th article of the law of colonization, on the terms designated in (he 22d article of the same.” The price put upon the land by the commissioner was that designated by the 24tli article, — one hundred dollars each for the eight sitios of grazing laud, and one hundred and fifty each for the two sitios of temporal, or Ullage.' The facts meet and answer the objection that the price designated in the 22d article was conceded to the petitioner. The terms and time of payment are not fixed by law. TVlierher it shall be sold for casli or on credit, the law is silent. Did not, then, the Executive possess a discretionary power upon the subject? Such was the construction which the Governor himself put upon the law delegating to him his power to sell the lauds. Such were the terms upon which lie sold the public lands; and the legality of the sale, or want of power to sell on credit-, it is presumed, was never questioned by the Congress of Coalmila and Texas or any other department of the Government. By decree No. 190, article 1G, passed after the concession was made in this case and before the title was executed to the purchaser, it was provided that “no change shall be made with the respect to the contracts which the Executive lias ratified, or the concessions stipulated to purchasers or settlers by virtue of decree No. 16, of the 24th March, 1826; but the Executive shall take care that within eighteen months from the publication of this law, the purchasers enter into possession of the land which he lias granted to them.” This, it is conceived, is a complete ratification of all sales previously made by the Executive, and settles, by the sanction of Congress, his right to sell the land on credit. His power thus sanctioned and his acts thus ratified by the Congress of Coalmila and Texas, have never been questioned by the late Republic or present State of Texas. By what authority can the appellant question them? VH. It is contended that the commissioner had full power to extend the title. The first objection urged against the authority of the commissioner is, that the concession under which he derived his authority is not signed by the Secretary of State but by the “1st officer.” To this we answer, that the concession was made to the individual then holding the office of Secretary of State. It was contrary to the practice of the Government or of the State Department for him to affix his own signature to his own concession. He was legally absent. The “1st officer” was the chief clerk in the State Department ; and in the absence of bis chief, was de facto Secretary of State. His acting in that capacity is presumptive evidence of his authority; and, as we contend, this presumption will remain until repelled by positive proof. The authority contained in the concession to extend the title is to “the commissioner for the.partition of lands to which correspond those selected b3r the petitioner; or, in his default, or not being comprehended in any enterprise whatever, the first or only alcalde of the nearest municipality.” The evidence'is silent as to whether the laud solicited was comprehended in any enterprise and the commissioner was in default, or whether it was not so comprehended; it does not establish the municipality in whicli the lands were situated, or whether that of Austin was the respective or nearest municipality. Under the circumstances, the action of the alcalde of that municipality, in executing the title, is satisfactory evidence that he was the officer indicated. This is a question of fact and not of law; and the court below, sitting as a jury, found the fact in favor of the defendant. (Edwards v. Davis, 3 Tex. R., 321.) Can this question be raised by an exception to the title as an instrument of evidence? I. It is insisted by the appellee that his right is perfect and complete, as evidenced by the title of possession issued to Santiago Del Valle, and is not inchoate and incomplete. To make out this proposition, the attention of the court is called to the instructions to commissioners in the hook of laws and decrees of Coahuila and Texas. These instructions provide that tlie commissioner shall appoint a surveyor, who shall run off the land scientifically, &e. Then, that lie shall form a book in calf, hearing the impression of tlie third seal, wherein he shall write, tlie titles of tlie lands which lie distributes to tlie colonists, specifying their names, the boundaries, and other requisites and legal circumstances, and lie shall take from said book attested copies of each possession, upon paper of tlie second seal, which lie shall deliver to the person to serve him for a title, and lie is (o issue said titles in the name of the State, in conformity to law, giving the. new settlers possession in legal form. (L. & D„ 71, art. 4, 7, 8.) Tlie title was issued in conformity to these instructions, which will be seen by its examination. What is its effect? It is insisted t-hat it vests the absolute dominion, which is said to be “ a power that arises from tlie right every one lias in the thing, by reason of which he may dispose of and derive'from it every possible advanl age, may exclude others from its use aud claim it from a possessor,” which is of two kinds — absolute and qualified. Absolute consists in tlie power of disposing of .and taking (lie profits, and qualified is where the right of disposition and that of taking tlie profits are in different hands. (1 White’s Becop., 85.) Now,'is the power of disposition given by this title of possession, when taken in connection with the laws under which it was made? The title is the foundation of the party’s claim, and the extent of that claim depends upon tlie laws under which it is made. Article 24of decree No. 10, of 24th March, 1825, provides that the Government shall sell to Mexicans the lands tliey shall wish to purchase, &c. Sell and purchase, are words well understood in the Spanish law, and have reference to a contract by which one, for a price paid or agreed to be paid, gives to another some kind of property. (1 White’s Becop., 185, 190.) And this contract is completed in one sense by the agreement of the parties, (lb.) As soon as tlie contract is completed the property belongs to the purchaser aud the money to the seller. Tlie concession shows that a sale was made; but it only vested a right to undefined and unascertained laud, which by location and survey was applied to particular land, aud then, by delivery of the possession, the right to tlie particular laud selected and surveyed vested in the purchaser; for it is tlie delivery which executes tlie contract. (Siguerza de Clausulas Instrumentáis, pp. 86, 87 ; 1 White’s Becop., 190-193.) By the articles before referred to of the instructions, besides delivery of possession, title is to be issued, which is evidence of that possession and of tlie contract upon which it is founded. Tlie possession was given, and tlie evidence of it and of the contract on which it is founded is presented by tlie title under consideration; and it contains in it also that which shows that the absolute dominion passed from tlie State to tlie grantee, for it concludes with, to possess, use, and enjoy,-to him, his children, heirs, aud successors, which embrace a right to hold in fee, as it is termed in common-law language, to enjoy tlie same aud tlie fruits, with power of sale. Tlie grant to him, his children and heirs, vests the fee as well as tlie present use and enjoyment. And tlie term successors embraces tlie right to sell; for it will bo seen by reference to an article of tlie colonization law under which the sale was made that, in reference to a sale, tlie same term is used to denote him who purchases from tlie grantee. (L. & D., 20, Dec. No. 16, art. 27.) And tliis is ail sustained by tlie law; for tlie article just referred to, in express terms, gives to the purchaser tlie power of disposition, for it says : The contractors and military, already mentioned in their turn, and those'who have acquired lands by purchase, can alienate tlie same at any time, provided,” &e. Nothing can lie found in any law, decree, regulation, or instruction in tlie legal history of Spain, Mexico, or Coahuila and Texas, which authorizes tlie vesting a divided dominion in such cases. The title is couched in the terms sanctioned by usage, and must be presumed to be in conformity to law. Titles of tlie like kind bavo always been regarded as the final and complete and perfect grant, which per sc give the entire estate to the grantee. In tlie case of Jones v. Menard (1 Tex. R., 771) a title, of the like kind was offered in evidence, but was determined to bo of no validity, because, though in proper form, it wanted tlie signature of the officer who extended it; and but for this it would iiavc been regarded as a perfect title. Tlie action of this court, in reference to imperfect titles emanating from the State of Coalmila and Texas, is another evidence of tlie received opinion as to what constituted a perfected title. Tlie permission universally accorded to persons holding Sncli titles to sell and dispose of them, tlie descent and distribution of tlie property embraced in Iliom, tlie enforcing contracts in reference to them, the recognition of them as community property by the courts, and everything else which has been done by the Legislature, the Executive, the Judiciary, the courts, and the people, furnish the strongest evidence that by such titles the absolute dominion was, and was intended to be given. II. But it is said that the sale was made and completed upon condition, 1st, of tlie payment of tlie price fixed by the 24th article within tlie time prescribed by the 22d article of the colonization law of 1825: and, 2d, of cultivation within six years, as required in the same 24th and in 2Gth article of the same law; and that there was a forfeiture by reason of the non-performance of the conditions, and the estate by such forfeiture divested and thereby became subject to location. As to the first, we insist that the condition has been performed. Competent evidence was offered in tlie court belo'w of the payment of the purchase-money, but was excluded by tlie court below. That evidence should have been admitted. Now, suppose for a moment, for the sake of the argument, it be admitted that the condition of cultivation lias not been performed. Then we ask, 1st, did the non-performance, ipso facto, divest tlie estate vested by tlie title of possession? and, 2d, if it did not, is it competent for tlie plaintiff in this action to inquire as to tlie forfeiture? We reply, that tlie estate was not, ipso facto, divested by reason of tlie nonperformance of tlie condition. It is true that tlie 24th article of the colonization law of 1825, under which the sale was made, denounces the penalty of forfeiture upon the failure to cultivate; but (lie mode of ascertaining (hat for feiturc is fixed by the 2Gtli article of lite same law, in these terms: ‘‘It shall bo understood that (he new settlers who shall not, within six years from the date of their possession, have cultivated or occupied, agreeably to their class, (he lands that shall be granted them, have renounced'tlie same; and the respective political authority shall presently proceed to retake to itself the lands and take from them, the titles.” This extract is given as an original translation from the Spanish part of tlie article reEerred to, and is somewhat variant from the translation found in the books of law and decrees. The difference is in this: in the commonly-received translation, that found in the book referred to, tlie last clause is in these words : u shall proceed to take back from them the land and titles;” giving by no means lo the reflective verb used, '■'•recogerse,'1'1 its true translation; tlie true, translation being, as I have given it, “‘to retake to itself;” and this correction will be found to be, material. Tlie provision applies, by its terms, as well to settlers as to purchasers, because it speaks of settlers and of occupation and cultivation agreeably to class, and purchasers were required to cultivate; colonists only were required to be settlers. It is true that the provision is, that “ they have renounced the land granted;” but it is, at the same time, evident that what is considered a renunciation does not, of itself, work a forfeiture of the title, because the land is, by the political authority, to be retaken to itself as well as the title. Now, from this is it not evident that before the right produced by (he forfeiture shall he or can be complete in the grantor, and thereby divest, the right of the grantee, that some act has to be done by the political authority? And until that act is done, can there be any right? In other words, can there be any forfeiture operating to divest the right of the grantee? The law, in substance, says, I have granted you land in fee, which you shall cultivate within six years, and if you fail to do so, by way of punishment., or as a penalty for that failure, yon shall be subject to a forfeiture of the land, and the respective political authority shall presently proceed to enforce that forfeiture by re-entry on the land and by taking from you the title, by virtue of which you shall lose the right, which thereby shall be reinvested in the State, which', coupled with the possession regained, shall invest the dominion as it was before the issuance to you of the title of possession. An act is to be done to produce the forfeiture; and until such act is done, there is no forfeiture, and the possession and title remain in the grantee. The rule contained in the article referred to provided for the enforcement oi a penalty, by reason of the non-performance of an act required. It is, then, one of that class of laws which, in the Spanish authors, are called odioso, or odious laws, which are defined to be those which impose some penalty, charge, or contribution, which, in case of doubt, are to be interpreted strictly. (1 Eebr., p. 17, No. 10.) Now, if a doubt can be raised as to the true interpretation of what, to our mind, is most manifest, then, in making an interpretation which may remove the doubt, the penal law is to be construed strictly. In reference to this, what may be said to be a strict interpretation? Evidently that which will confine the forfeiture provided by the article to an enforcement in the mode and manner pointed out by it. If such be the strictness spoken of, it must result that there is no forfeiture ipso facto, but only upon the doing tile act or acts required by the law, by the political authority. But suppose the 26th article has no application to the case of purchasers, then we will be thrown upon the penalty provided by the 24th, being that under which the purchase was made, which is in these words: “The purchaser shall cultivate those he shall acquire by this title within six years from the acquisition, under the penalty of forfeiting the same,” (pena da perder los.) Now, is this a forfeiture ipso facto ? If words are to be understood in their usual acceptation, there can be no such forfeiture. That so the words used are to be understood is manifest, for the rule of interpretation found in the Spanish law is, “the words of the law ought to be taken in their proper signification, unless it appear that another was in the mind of the legislator.” (1 Eebr., 16, No. 21, p. 2.) Now, the penalty denounced is not that, if the condition is not performed by such non-performance the land shall be forfeited, or shall remain forfeited, but, he shall be subject to a punishment of iorfeitnre. The penalty is not executed, but is to be exhibited at a future period by reason of the neglect of the grantee. But on this subject we are not without rules found in the Spanish law. The effect of the law is to impose a penalty by way of punishment for the failure to do the act required; and the effect of that penalty, when enforced, is to produce a forfeiture of the right the party in the land in question; in other words, to deprive him of his possession and Ihe title to the possession, and thereby annulling that by virtue of which he acquired his right. The law, by virtue of which the forfeiture is to take place, is then an annulling, penal law, and, according to the rule before stated, is to be construed strictly. If by the words a forfeiture is produced, then there is an end of the question; but if not, the penally and the mode of enforcement are to be confined within the words. And, it not being intimated that any particular mode is to be resorted to, it follows that'the same is to be enforced in the manner pointed out by the general law, which is by a proceeding before a proper tribunal; and until that proceeding is had, though tile party'is liable to the penalty, it is not incurred until the declaration'of the judge, and until such declaration is made, the title is subsisting. (1 Febr., 14 and 15, ISTos. 15, 16.) But, again: the colonization law of 1825. under which the sale in question was made, furnished, in another article, conclusive evidence that the forfeiture in. question was not ipso facto. Laws like the one in question, as will he seen by reference to the last above citation, are annulling ipso jam, or by the sentence of the judge. Where ipso jure the thing annulled hail no subsistence from the beginning, while those by the sentence of the judge are subsisting until the declaration of the judge. These distinctions arc carried out bj' the law of 1825. The 24th article affixes a penalty to he enforced, and so of the 26th article, with the addition of a provision as to the mode of enforcement.; and this is a penalty within the rule as to penalties not ipso jure, hut by the sentence of the judge. Then comes the 80th article, which provides that “new settlers who shall resolve to leave the State to establish themselves in H foreign country, shall be permitted to do so with all their property; but after thus leaving, they shall no longer hold tlicir land; and should they not have previously disposed of tire same, or should not the alienation be in conformity to article 27, it shall remain (or become) entirely vacant.” And this, as shown in the case of Holliman v. Peebles, is (he enforcement ipso jure upon the words found in that article — quedara valdio enteramente. This would hardly have been produced had the case been under the 24th or 26th article. For no such words are found in those articles. The difference in the language makes the distinction. In one, the forfeiture is enforced ipso jure; and' in the other, by the judge. Again : what is referred to in the case of Holliman v. Peebles, as to the action of the ayuntamiento against Holliman and the regraut made in consequence thereof of the land to another, is very persuasive evidence of the existence in the Spanish-Mexican law of a rule by which no one can be deprived of his property, without some previous inquiry as to the existence of a fact which may, wlien properly ascertained, deprive him of his right. And so is t.he provision contained in the 26fch article of the colonization law of 1S25, before referred to. By that, the respective political authority is to proceed to take back tiie lands, or to retake it to itself, as well as the titles. Under what circumstances? upon ascertaining the failure to cultivate. But so will be found to be the rule in the Spanish books. For instance, it is said by Asso & Manual, that no one can be deprived of his property without a hearing. (1 White’s Keeop., 94; 2 Id., 85.) How, that the laud in question was the properly of .Santiago Del Talle, as soon as the possession ivas given and the title extended, cannot he questioned; for the authorities to which wo have called the attention of the court show that by virtue of such possession and title lie acquired the absolute dominion. And this lie could not be deprived of without a hearing; and we have shown that the hearing was to be before some tribunal authorized to declare the forfeiture. It follows, that if such hearing was not had for such purpose, there is no forfeiture declared; he has not been deprived of his property, and the property yet belongs to him or those claiming under him. 2. If the estate granted to Del Valle is yet subject in the hands of the defendants to a forfeiture by reason of non-cultivation, that forfeiture cannot be. enforced by the plaintiff in this suit, 1st. Because the plaintiff lias no interest in the question, it having been shown that the title is yet in Del Valle or those claiming under him ; the land never became a part of the. vacant public domain of Texas, and did not and could not become subject, legally, to location or survey ; and the plaintiff's survey as well as location arc void. The location or survey under tlie statute may give a right to the possession where the land was a part of the vacant domain when located and surveyed; but where at the time of such location and survey the possession and right of possession is in another, the statute can have no effect, its only object being- to give or vest a right to the possession, if before the location or survey the State had any. The plaintiff, then, has no interest upon which he can claim a right to enforce the forfeiture against the defendant. 2d. Though, for the sake of the argument, it lias been admitted that there was not a "performance, of the condition of cultivation, and that the defendants were subject to the effects of that forfeiture when enforced, yet that forfeiture cannot be enforced by the plaintiff in this a'ction, because the people in convention, when they formed the Slate Constitution, solemnly determined that there was no remedy by which that forfeiture could be enforced. III. But an objection has been taken to the validity of the title of possession, founded upon the prohibition contained in the 12th article of the general colonization law. (1 White’s Recop., C02.) The objection is, that the grant is void, being for two leagues of temporal and eight leagues of grazing land, when the article prohibited the uniting in the same hands, with right of property, more than one league of irrigable, four leagues of temporal, and six leagues of grazing lauds. This objection is founded upon what we suppose to be a misconstruction of the article under consideration. In order that we may arrive at a true construction of this article, let us, if we can, ascertain from the law the intention of the law maker. Is it not manifest that in contemplation it was thought important that all the most valuable, lands in the country should not be united in the same hands? A prohibition is made, by which no one person can become the owner of more than eleven leagues; but this is not all. That class of lands which are called irrigable was considered the most valuable; that called temporal, the second in value; and that called grazing, of least value; for in distribution not more than one league of the first, four of the second, and six of the last were to be united. How, if we have ascertained the intention, such a construction is to be placed upon the law, as will carry out the intention by enforcing the prohibition, and thereby avoid the evil which was to be apprehended, and at the same time obtain the colonization provided for by the same law. How, the prohibition is, in terms, to the uniting in the same hands more than the quantity specified of each class, where the grant embraces every class. But does it, in terms or by implication, prohibit the grant where it can embrace but two of the classes, to wit, temporal and grazing- lands? If it did, then, as to a greater portion of the country, no grant could be made at all; for a greater portion of what is now the State of Texas is grazing, and but a small portion only irrigable and arable land. It could not have been the intention to carry the prohibition to this extent; but we would rather presume that, where all the classes were not united in the same grant, but only one or more of them, then if of irrigable and grazing, no moré than one of the former and ten of the latter might be included; if of temporal and grazing, not more than four of the one and seven of the other; and if all of grazing-, then all of that class. And this we suppose to be the spirit of the law, and as such should prevail. WheelbR, J. The questions to be determined relate to the character and validity of the title to Del Valle, and the right of the plaintiff in tiffs action to impeach it for the non-performance of the conditions. The objections to the title mainly relied on, and which are deemed to require notice, are— 1st. That the Governor had no authority to extend to the grantee the benefit of the 22d article of the colonization law of 1825, in respect to the time of payment. 2d. That the concession is not properly authenticated. 3(1. That it did not confer on tlie alcalde of the municipality of Austin authority to act in the premises. 4th. That Williams had no authority to act as attorney for Del Yalle in procuring the title. 5th. That conditions being annexed to the grant, the title is imperfect; and that by reason of the non-performance of the'conditions, it is forfeited. These several objections to the title may be considered in the order in which they are presented. The 24th article of the State colonization law of 1825, under which this grant was made, is as follows : “ The Government shall sell to Mexicans, and to them only, the lands they shall wish to purchase; but shall take care that there shall not be united in the same hands more than eleven leagues, and subject to the condition that the purchaser shall cultivate those lie shall acquire hy this title, within six years from tlie acquisition, under the penalty of forfeiting the same. Allowing the aforesaid condition, the price of each sitio slial 1 be one hundred dollars for grazing land, one hundred and fifty for tillage land not irrigable, and two hundred and fifty for irrigable tillage land.” (Decree 16, Laws and Dec. C. & T., p. 10.) Article 22 of the law, the benefit of which, as to the time of payment, was extended to tlie purchaser in this case, is as follows : “ The new settlers shall pay to the State, as an acknowledgment for each sitio of grazing laud, thirty dollars; for each labor not irrigable, two and a half; and for each that is irrigable, three and a half; and so on, proportionally, according to the class and quality of laud distributed to them; but the payment thereof need not be completed under six years from the settlement, and in three installments: the first in four, the second' in five, and the third in six years, under a penalty of forfeiting the lands for a failure in any of the said payments. The contractors and the military, mentioned in article 10, shall be exempt from this payment; the former, as regards the. lands granted them as a premium; and the latter, for that which they obtained agreeably to their patents.” (Ib.) The power to sell .to the persons and on the terms specified in the 24th article of the law is ample; but the law contains no express direction as to the time of payment by purchasers under tlie 24th article. The price to he paid was fixed by tlie law; but whether tlie sale should he for cash or on time was left either at the discretion of the Executive, or to be deduced by him from a construction of the various provisions of the law. The law did not forbid a sale oil time. It authorized the sale at a fixed price; but being silent as to whether it should be for casii or on time, this was á question necessarily submitted to tiie decision of tlie officer. This decision, of necessity, depended on iiis judgment and discretion ; and “it is ” (said the Supreme Court of tlie United States, in the United States v. Arredondo et al., 6 Pet. R., 729) “an universal principle, that where power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided tio his or their discretion, (lie acts so done are binding and valid as to the subject-matter; and individual rights will not be disturbed, collaterally, for anything done in tlie exercise of that discretion within tlie authority and power conferred.” Had tlie sale been made bjr the officer without tlie authorily of law, or had tlie law by express provision or by necessary intendment forbidden the sale as made, its effect would have been different. “STo tille can be held valid which has been acquired against law.” (2 IIow. R., 318.) A patent “which lias been fraudulantly obtained, or issued against law, is void.” (ib.) “ There are cases ” (said Chief Justice Marshall, in tlie ease of Polk’s Lessee v. Wendell et al., 3 U. S. Cond. R., 324) “in which a grant is absolutely void; as where tlie State had no title to tlie thing granted, or the officer liad no authority to issue the grant.” These principles have been fully recognized by the decisions of this court, and are not to be questioned. (Mason v. Russell’s Heirs, 1 Tex. R., 721; Goode v. McQueen’s Heirs, 3 Id., 241; Edwards et al. v. Davis et al., Id., 321; The Republic v. Thorn, Id., 499.) But. the present is a very different case. Here there is no question as to the authority of the officer to make the grant. The question is whether lie erred in the manner of exercising his authority. We are not prepared to say that he did. But if lie did; if it was a mere error in judgment, and the act done was not against law, being within tlie authority and'power conferred, — it would, on general principles, be valid and binding until reversed by some competent revising tribunal. But it is not necessary to rest the validity of the sale made by the Executive in this ease on these general principles alone, or on what may seem to ns the just construction of the Jaw under which lie acted. His action appears to have been recognized and ratified by a subsequent enactment. Article 1G of the law of the 28th of April, 1832, (Decree 190, Laws and Deo. O. and T., p. 191,) declares, that “ no change shall he made with respect to the contracts which the Executive has ratified or the concessions stipulated to purchasers or settlors by virtue of decree Ho. 10 of the 24th of March, 1825; but the Executive shall take care that, within eighteen months from the publication of this law, purchasers enter into possession of the land which lie lias granted them,” &e. Article 13 of the same decree prescribes the time within which the purchaser shall pay the price stipulated for the land. This decree bears date within less than two months after the concession in this case. It is but reasonable to suppose that the Legislature were aware of the terms on which this and other similar concessions had been made by the Governor, and that by declaring that “ no change shall be made with respect to the contracts which the Executive has ratified or the concessions stipulated to purchasers,” they meant to ratify and confirm those concessions in respect to the time of payment stipulated. If, therefore, it be conceded that the Executive erred in the exercise of the power conferred on him by the law, it cannot be denied that it was competent for the Legislature to recognize and affirm his acts. There can he no doubt that this enactment is a legislative recognition of the authority of the Executive to make concessions; aiid in so far as lie may have been invested with a discretion in respect to the terms, it is to be regarded as a confirmation of his acts. This objection to the title therefore cannot he maintained. In disposing of this objection, on which much reliance seems to have been placed, we have not deemed it necessary to enter into a critical examination of the terms and import of the several provisions of the law to which reference lias been made, or to institute an inquiry into the policy of the former Government in the disposition of her public lands, in order to ascertain whether a just interpretation of those laws or a proper understanding of that policy would have required a different action from that taken by the Executive in this instance. It would not be reasonable to suppose that the highest executive and legislative functionaries of the then Government had as enlightened, views in respect to the true policy of that Government and as just an appreciation of their powers and duties as we possess in respect to them. The construction of their powers and of the laws which conferred them, adopted and acted upon by the authorities under the former Governments of the country, must be respected until it be shown that they have clearly transcended their powers or have acted manifestly in contravention of law. The presumption must be, that they rightly possessed and exercised those powers which they were accustomed to exercise, until the contrary be shown. This doctrine is fully recognized by the opinion of this court in the case of The Heirs of Holliman v. Peebles. It is there said: “The presumption of law, that the public act of the public officer, purporting to be exercised in an official capacity and by public authority, shall he presumed to be the exercise oí a legitimate ancl not an usurped authority, is recognized in its full force.” (1 Tex. R.. 699.) And again, treating- of the acts done by the ayunta-miento, it is said: “AH the transactions, the grant, the revocal ion. and tiie regrant occurred under former Governments of the country; and while usurpation of power would be disregarded, and flagrant violations of law redressed, yet we will not, with a hypercritical spirit, revise matters determined by former authorities, or disturb rights founded upon their action or adjudications.” (Id., 709.) This doctrine is so manifestly correct and just as to commend itself to our unqualified assent. A different doctrine would unsettle every right which we esteem secured to us by the sure guaranties of the Constitution and law*. It would overturn the whole doctrine of res adjudicóla, and destroy every thing like certainty* stability, and permanency, as well in respect to acts done and rights adjudicated by ourselves as by those who have preceded us. The princi-pié which will require our successors to respect our official acts is tiie same which requires us to respect those of our predecessors, done, or until the contrary appear, presumed to have been- done, within the scope o°f their legitimate authority. It is further objected to the title in this case that tiie concession is not properly authenticated, because signed by the “first officer” instead of the Secretary of State. In support of this' objection, we are referred to article 141 of the Constitution of tiie State and article 49 of Decree 19. What were the precise powers and duties of all the officers of State, what the regulations prescribed for their government in discharging the duties of their several departments, it would be difficult, if not impossible, for us now to ascertain. But it is scarcely to be supposed that there was not some provision of law, compatible with the then received construction of the Constitution, by which tiie decrees and orders of the Executive could be authenticated in case of tiie absence of the Secretary of State, or of his inability to act. By a reference to the laws and decrees contained in the published volume, wre find many of them of a later date signed by the same officer and in tiie same manner as the concession in this case. (B. & D. C. & T., pp. 3S3, 284, 2S5, 28G, et seq.) He seems, at least, to have been accustomed to perform acts of the character of that which is now drawn in question, and those acts must have been esteemed entitled to faith and credit at the time. Extensive powers were conferred on the Governor by the Constitution and laws. (Const, of C. & T., tit. “ATTRIBUTES op the Governor,” decree 19, same tit.) And it may have been within the legitimate exercise of those powers to cause liis acts to receive authentication, in certain cases, without the signature of (he Secretary of State. But without attempting to ascertain the source from which the officer derived his authority, it may suffice to say that, with the dim lights furnished us, it would be going quite too far to assume that the concession was not authenticated in a manner which, by the laws in force at the time, entitled it to respect, when it was respected and obeyed by the officer to whom it was directed, who must be supposed to have possessed very superior means of information on the subject to that which we possess. It is, moreover, to he observed that the concession in this case appears to have been made to the persou who rvas at the time Secretary of State. It must, therefore, it would seem, have been certified by some other officer, if at all. The objection is regarded as merely technical, and is not of a character to invalidate the title. Another objection is, that tiie concession did not confer on the alcalde of the municipality of Austin authority to act in the premises. The direction is, first, to the commissioner, if the lands be within any colonial enterprise; if not, then to the alcalde of the “respective or nearest municipality.” The lands were tobe selected in the department of Bexar, and the objection appears to be predicated, in some degree, on the supposition that the department of Bexar meant the municipality of Bexar. This, if it be intended, is, it is conceived, a misapprehension of the fact. The terms “ municipality ” and “ department ” were not convertible terms. There might be and there were more municipalities than one in the same department. At the date of the grant it was not perhaps known in what municipality the lands would be selected. The object of the direction, doubtless, was to promote the convenience of the grantee. Hence, it was made in the alternative. And we think, with the learned judge who presided at the trial, that the terms “respective or nearest,” were intended to confer the power on the alcalde of the municipality which might be embraced within either term, and that either one of two might act under the appointment, as might be found most convenient. But, if the words of the grant be doubtful, we must have recourse to the settled rule of construction applicable to such cases, which is thus stated by Sir. Justice Story, in the case of the Charles River Bridge v. Warren Bridge et al., (11 Pet. R., 589 :) “If the King’s grant admit of two interpretations, one of which will make it. utterly void and worthless, and the other will give it a reasonable effect, then the latter is to prevail; for the reason (says the common law) that it will be more for the benefit of the subject and the honor of the King, which is to be more regarded than his profit.” “The King's patents, not only of his liberties, bat of his lauds, tenements, and other things, should have no strict or narrow interpretation for the overthrowing of them, but a liberal and favorable construction for the making of them available in law.” (1 Kent’s Comm., 460, n. b.) We have been referred to no law which defines the limits of the several municipalities established in Texas at the date of this grant. It would, perhaps, be impossible at this day to ascertain, with anything like accuracy, what were the precise limits of such municipalities; and it is probable, if not certain, that some of them, as for instance Bexar and Nacogdoches, had no well-defined limits. But it is sufficient for the present inquiry that it is not shown that the alcalde who executed the title in this case did not come within the reasonable intendment of the power contained in the grant. It devolved on the party impeaching the title to make out his objection clearly and conclusively. It is not certainly shown in what municipality this land was situated. We have little doubt that it was in that of Bexar. But this is not satisfactorily established by the evidence in the case. And if .it were, we cannot undertake to say from the evidence that, in the then state of the couutry in respect to the means of intercommunication, the seat of justice of the municipality of Austin was not considered nearer than Bexar; and to sustain the objection, it devolved on tlie party making it to show that that of Austin was neither the “respective” nor “nearest” municipality. The fourth objection to the title is answered by an express admission contained in the statement of facts. The remaining objection is, that the title is imperfect, in consequence of the conditions annexed to it; and that, by reason of their non-perfonnance, it is forfeited. In support of the position that the title is imperfect, counsel for the appellant have relied mainly on decisions of the Supreme Court of the United States upon concessions made by the Spanish authorities in Florida and Louisiana when the territory belonged to the crown of Spain. A brief reference will suffice to show how far they support the doctrine contended for in its application to the present case. The grant in the case of the United States v. Kingsly, (12 Pet. R., 476,) which case was subsequently referred to by the court as “ the leading decision upon the imperfect titles known as Mill Grants,” (14 Pet. R., 350,) was as follows: “Considering the. advantage and utility which is to accrue to the province if that is effected which Don Zepheniah Kingsly proposes to do, it is hereby granted to him, that without prejudice to a third party, ho may build a watei saw-mill in that creek of the river St. John called McGirts, under the precise condition, however, that until he builds said mill, this grant, will be considered null and void; and when the event takes place, then, in order that he may not sutler by the expensive preparations he is making, he will have the faculty of using the pines comprehended within the square of five miles, which ho solicits for the supply of said saw-mill, and no other person will have a right to take anything from it. Let the corresponding certificate bo issued to him from the secretary’s office. (Signed) . “ Coppingíer.” In pronouncing upon the character of this grant, the court ^aid : “ We view this claim under the decree of Governor Coppinger as a permission to enter upon the land designated in the petition and decree, in which land the appel-lee did not and could not acquire property, or even inchoate title, such as embraced in tlie Stli article of the treaty, or by this court’s construction of it, until ho had, in good faith, prepared to execute the condition which the ap-pellee held out as the inducement to obtain the grant; or, in other words, we think the decree of the Governor contains a condition preceden1!, to be performed by the appellee before the grant could take effect.” (12 Ret. R., 433.) And the court held, that because the grantee had not performed tlie condition, nor shown any sufficient cause for its non-performance, the gran# was void. In tlie ease of the United States v. Wiggins, (14 Pet. R., 33-1,) tile grant was made on the application of Mrs. Wiggiiis, representing tlie number of her children and slaves, and that “owing to the diminution of trade, she will have to devote herself to the pursuits of the country; ” and asking a grant of laud in proportion to the number of her family. The grant is as follows: “The tract which the interested party solicits is granted to [414®] her without prejudice to a third party; and for'lho security thereof, let a copy of this instance and decree be issued to her from the secretary’s office. , (Signed) “Eslrada.” This concession was made upon conditions in law prescribed in an ordinance of Governor White, which declared, “that to those employed in the town, of whatever class they may be, if lands be granted to them or to their slaves, it shall be with the express condition of their cultivating- the same within one month of the concession; being understood that if they fail in so doing, it shall be granted to whomsoever shall denounce and lawfully prove tlie same.” And “ that all concessions in which no time is specified, shall become extinct, and shall he considered null, if the persons to whom they are made do not take possession and cultivate the same within the space of six nionLhs.” (2 White, 277-8, secs. 3, 4.) Ten years’ occupation and cultivation were required before the party who had received tlie concession could have delivered to him. the title. (Id., 2S3.) The concession to Mrs. Wiggins, the court held, carried with it tiiose conditions incident to settlement rights by tlie ordinances and usages of Spain. (14 Pet. R., 331.) In the conclusion of their opinion, after noticing- certain exceptions which had been allowed to tlie general rule requiring tea years’ occupation and cultivation before the delivery of the title of proprietorship, the court say: “As Mrs. Wiggins, however, never cultivated or occupied the land claimed, she took no interest under the rule or any exception made to it, and it is free from doubt had Spain continued to govern the country, no title could have been made to her; nor can any be claimed from tlie United States, as successors to the rights and obligations of Spain.” Here, as in the case of the United States v. King-sly, it is clear that the conditions in law which attached to the concession were conditions precedent, which must have been performed before, by the ordinances and usages of Spain, the title of proprietorship could bo delivered; and not having been pel-.'formed, the concession, as in the former case, was declared void. The court refused to confirm the grant, which was the same thing, in effect, as to refuse >to deliver the title of proprietorship. And the distinguishing feature of these and all other claims of a similar character passed upon by the Supreme Court of the United States is, that the ultimate final title to the land liad not been •and could not be delivered until the conditions were performed. The mere ■concession in these cases did not confer on the grantee any right of property, hut simply a permission to occupy, and a claim upon the Government for a ditle, to be delivered after the performance of the conditions. The fee remained in the grantor. The conditions were conditions precedent, and until performed, there was no obligation resting upon the Government to deliver the final title or confirm the grant. This, all the cases show; and this distinguishes those cases from the one under consideration. The distinction between an imperfect and a perfect title, by the laws of Spain, has been repeatedly recognized by this court; and what constituted a perfect title under those laws was fully considered and determined in the case recently decided, of Paschal v. Perez. The fact that a final title had conditions annexed to it did not by the laws of Spain, render it an imperfect title. Where the conditions were not precedent but subsequent, and the final title had issued, or the final act of confirmation had been performed by the proper .authority, the title was perfect. . This may be seen by reference to the case of Menard’s Heirs v. Massey, (8 How. R., 293.) where there is given, by Mr. Justice Catron, the form of a perfect title, executed under the Spanisli Government. (Id., 314, 315.) The form there transcribed by the learned judge is given as an example of a perfect title under the laws of Spain, and yet there .are annexed to it conditions to be performed by the grantee, upon the nonperformance of which the right would be subject to forfeiture. And it is worthy of remark that the form there given is, in every substantial requisite and in effect, the same as the one now before the court. The cases relied on by counsel for the appellant are cases in which there was .a mere concession or permission to occupy and acquire an equitable claim upon •the Government for a title, by a compliance with the terms and conditions prescribed. But until the terms and conditions were complied with, the Government of Spain was under no obligation to complete the title; and the United States being substituted, by the treaty of cession, to all the rights and ■obligations of the former sovereignty, was under no obligation to confirm the grant. Perfect titles, the Supreme Court held to be intrinsically valid, needing no confirmation. f These principles are explicitly stated in the case of The United States v. Wiggins. Tlie court there say: “ That the perfect titles, made by Spain before the 24th of January, 1818, within the ceded territory, are intrinsically valid, •and exempt from the provisions of the 8th article, is the established doctrine of this court, and that they need no sanction from the Legislature or judicial departments of this country. But that there were, at the date of the treaty, very many claims whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles, is a fact rendered prominently notorious by the legislation of Congress and the litigation in the courts of this country for now nearly twenty years. To this class •of eases the 8th article was intended to apply; and the United States wrere bound, after the cession of the country, to the same extent that Spain had been bound, before the ratification of the treaty, to perfect them by legislation and adjudication.” (14 Pet. R., 350.) It is thus seen that those constitutional concessions, passed upon by the Supreme Court of the United States, were not, under the laws of Spain, titles in the sense in which we employ that term, as denoting an estate in fee, but mere ■claims upon the Government, depending for their obligation upon the performance of their conditions, not even constituting an equits" in the claimant until the conditions were performed; and when performed, remaining inchoate and incomplete, having no standing in a court of justice until the final title issued or they were confirmed by the Government. The authorities cited by counsel for the appellant abundantly show this to-have been the character of those concessions. Thus, in the opinion of Saave-dra, given at the instance of Governor Coppinger, in 1818, it is said : “Those who, having obtained concessions of lands, have not cultivated them from the time they were granted, can have no right to them; much less will they have the title of absolute property, which is delivered after ten years’ possession, to-establish which must be preceded by formal proof of compliance with the conditions; for this reason there is so marked a difference between the titles of proprietorship and simple certificates issued by the Secretary of Government when the concession of lands is made, that the former enjoy an irrevocable right, and the certificates are of no value or effect unless the prescribed conditions have been complied with.” (2 White, 283.) The conditions in the cases cited by counsel were conditions precedent, and not until after their performance, as we have seen, was the title to be1 delivered. Titles issued to colouists and purchasers under the colonization laws of the State of Goahuila and Texas were of an entirely different character. Under those laws the title of possession was the final title, vesting the fee absolutely in tlie grantee. Conditions were annexed, except to 'those granted to the military and some other favored persons. (Decree 10, arts.'lO, 22.) But they were conditions subsequent, upon the non-performance of which the titles-were subject "to forfeiture,1 but until which the fee, or proprietorship, was in the grantee. They conveyed all the estate and interest which the Government had to convey as absolutely, and to the same extent, as did the delivery of the final title, or the final act of confirmation by the Spanish Government after the performance of the conditions. Ho act of confirmation by the Government was required or was contemplated by the colonization laws; but when the title of possession issued, the Government liad done the final act on her part. Nothing remained to be done to consummate the title of the grantee, who was thereby invested with the legal seizin of the land in fee. Of this character of title that issued to Del Valle, and now before the court,, is an example. The officer sets forth that, “ In exercise of the authority conferred on me by the Supreme Government of the State, by decree dated in Leona Vicario, on the 8th of March of the present year; and in attention to-the sale granted b3r the Supreme Government in favor of the citizen Santiago Del Valle, a citizen, of the village of San' Buena Ventura, and an actual resident of the capital of the State, the city of Leona Vicario, on the 8th of the last past month of March, presented by his attorney, Samuel M. Williams, contained ou the 3d and 4th pages of this document,” &c. “I confer and put in possession, real, actual, corporeal, and virtual, the said attorney of the citizen Santiago Del Valle, of ten sitios of land, the same he petitioned for, and of the eleven sitios sold to him by the Government upon the right margin of the Colorado river above the Bexar road, whose particular situation, boundaries, limits, and landmarks are remarked on the notes of survey made by the scientific surveyor, Thomas H. Borden, ou the 2d and 3d pages of tiiis document, with the configuration given on the attested map.” (Then follow the conditions, after which the document proceeds:) “Therefore, using of the powers which have been conceded to me by the said decree of the Supreme Government of the State, and other provisions of the same Government ou the matter by the law and consequent instructions which govern me, I issue the patent title, and order that a testimonio be taken of it and delivered to the party interested, that he may possess, use, and enjoy the lands which have been sold to him, he, his children, heirs, and successors, or whom of him or of them may have cause or right to represent;. for this is the will of the State.” Attested and signed by Horatio Chrisman, the alcalde, with assisting witnesses. It is thus seen that there is not the least analogy or resemblance, in favor or ( substance, between the title in this ease and the concessions which wore passed ''■-'upon b3r tlie Supreme Court of the United States in the cases cited. The case of the United States v. Arredondo et al. (6 Pet. R., C91) cannot be invoked as an authority in support of the doctrine contended for on behalf of the appellant. The doctrines asserted in that case would go far to deny his right to be heard to question the title of the defendant in this action. (Id., 727, 72S, 729, 730, et seq.) The cases of Buyclc v. The United States, (15 Pet. It., 215,) of O’Hara v. The United States, (Id., 275,) and of The United States v. Delespine, (Id., 319,) were mere concessions of the class of those to which we have before referred. The Supreme Court of the United States have uniformly held that perfect titles under the Spanish law needed no confirmation. This is expressly declared in the ease of The United States v. Wiggins. The court there said: “ It was adjudged by this court in the cases of Arredondo and Perehman, (6 and 7 Pet. R.,) that the words ‘ shall be ratified and confirmed,’ in reference to perfect, titles, should be construed to mean * are ’ ratified and confirmed, in the present tense. The object of the court in these cases was to exempt them from the operation of the eighth article, for the reason that they were perfect titles by the laws of Spain when the treaty was made, and that when the soil and sovereignty of Florida were ceded by the second article, private rights of property were, by implication, protected. The court, in its reasoning,'most justly hold that such was the rule by the laws of nations, even in cases of conquest, and undoubtedly so in a case of concession. Therefore it would be an unnatural construction of the-8th article to hold that perfect and complete titles at the date of the treaty should be subject to investigation aud confirmation by this Government.” (Id.. 349.) Shell was the character of the title in the present case. It was a perfect title, and needed no confirmation, either by the laws of the Government under which it was issued, or by the laws of nations since the change of Government. (McMullen v. Hodge, 5 Tex. R.; Hardy et al. v. DeLeon, Id.) We are referred to the act dispensing with the conditions attached to colonist grants; and it is asked if the larger grants are more favored than these ? Certainly not. Under the Government of Coahuila and Texas, grants to Mexicans were favored; under the Government of the Republic, grants to colonists have been t.he highly favored class. This, and nothing more, will be seen by the references and bjr consulting the legislation on that subject. In pursuance of the policy of favoring colonist grants, the Congress dispensed with certain conditions annexed to them, while they left those annexed to the less favored class still impending over them. We deem it unnecessary to extend further the examination of this subject. We think it free from doubt that the present is a perfect title. The conditions annexed to it are conditions subsequent; aud it is an elementary principle that where the condition is “subsequent, that is, to be performed after the estate is vested, the estate shall become absolute in the tenant.” (2 Bl. Comm., 150,157.) “ Subsequent conditions are those which operate upon estates already created and vested and render them liable to be defeated.” (4 Kent’s Comm., 125.) Such, unquestionably, are the conditions annexed to the title in this case; Finally, it is insisted that the grantee has incurred the forfeiture denounced by the law, and that the plaintiff can take advantage of it in this action. There is no doubt that, in practice under the Spanish law, where grants of land were made upon conditions if the conditions were not performed any one might denounce them, prove the forfeiture, and apply and have the land granted to himself. But then it devolved on the party denounc-ingvto prove the forfeiture. (2 White, p. 278, sec. 9.) And, if it be conceded that the plaintiff had the right to institute this proceeding, in analogy to the practice under the Spanish law, for the purpose of having the forfeiture adjudged by reason of the non-performance of conditions, nothing can be more perfectly clear than that it devolved on him to prove the facts in which tlie forfeiture consisted. A contrary doctrine would be repugnant to the plainest principles of justice and common right. We cannot assent to the idea that any man who may have an unlocated land certificate may, by locating it upon land to which the title is in another, and alleging that that other has forfeited his right by non-performance of conditions subsequent, or in any other manner, compel the owner to come forward and prove the negative — that he has not so forfeited his right. The Government may enact laws requiring parties who hold conditional grants to come forward at such time and in such manner as she may deem proper, and prove that they have performed the conditions of their grants. Bnt we cannot admit that every individual who is the holder of a land certificate is thereby invested with this high attribute of political power, which will enable him to throw upon every other man who has a perfect title, which was legal and valid when made, the burden of proving that he has not forfeited his estate. Whatever may be thought as to the right of a party to institute a proceeding of tlie character and with the object of the present under the former law, it is clear that since the adoption of the Constitution of the State such right does not exist. Section 4 of article 13 of the Constitution declares that “ all fines, penalties, forfeitures, and escheats which have accrued to the Republic of Texas under the Constitution and laws, shall accrue to the State of Texas; and the Legislature shall by law provide a method for determining what lands may have been forfeited or escheated.” (Hart. Dig., p. 80.) The Legislature has, as yet, made no provision on this subject; and until some provision shall be made it is evident that, under the Constitution, no such proceeding can be instituted. The plaintiff’s location was made in 1S48. At that time there was, and there still is, no law by which this proceeding can be maintained as a proceeding instituted to ascertain whether the lands in question have been forfeited. There were other questions of minor importance raised in the progress of the trial, but which are not regarded as presenting any question of sufficient difficulty or importance to require a particular consideration at this time. The same questions are presented in the case of Hancock v. Horton, upon the same title now before us, and they may be noticed when we come to dispose of that case. We are. of opinion that there is no error in the judgment, and that it be affirmed.