
    Jenkins v. Chambers.
    "Where an emigrant settled in Milam’.s colony in 1831, and when Talbot Chambers was appointed commissioner to issue titles to tho families within that enterprise, presented his petition, for title to a certain league which lie alleged he had selected with the approbation of the agent of the empresario, and which lie had improved and cultivated, and the agent of the empresario certified to the commissioner that tho petition was true and that the petitioner was one of the colonists introduced by him as agent of the empresario, whereupon (in 188.")) tho corresponding title was extended: Held, That the title so extended was preceded by no inchoate or equitable title on which it could relate hack to any antecedent period, and that it must yield to a prior grant issued subsequent to the settler’s occupation.
    Even a survey without a concession or order of survey would nofc'be a legal appropriation of the land.
    Ifc seems that; however locative and descriptive a concession may have been, yofc it did not separate tho land from the public domain, nor did a subsequent title issued thereon relate hack to the date of tho concession, where the concession was in the alternative, either for the land particularly described or anv other vacant lands which the party interested might select.
    Of the authority of the executive, under the 17th article of the colonization law of 18¿5, to make the grant, of six league?, to a settler, there can he no question. The authority to increase the quantity, that is, to grant a quantity “in proportion to the family, industry, “and activity” of the applicant, presupposed the authority to judge of his qualifications. On this subject he was to receive the reports of the ayuntamientos and commissioners; butthc.se wore simply to enlighten his judgment, not control it; lie was not prohibited from obtaining information from other sources nor from acting on his own personal knowledge of the facts.
    It was no objection to the validity of a concession made by the executive in 1830, under the 17th article of the colonization law of 1825, to an applicant residing in Leona Vicario, for lands in a colonial enterprise in the department of Bexar, that the executive referred the petition for information to the. ayuntamiento of Leona Vicario and not to the. ayunta-miento of the municipality wherein the land was situated.
    The executive having authority, under the 17th article of the. colonization law of 182"), to in-creasothe quantity, that is, to grant a quantity “in proportion to the family,industry,and “activity” of the settler, ho was constituted the judge of the qualifications of the applicant, and his decision was final, unless fraud be shown on the pare of the grantee. (Note 37.)
    
      Quere? Whether a concession in 1830 for six leagues of land particularly described, or elsewhere, as the party interested might elect, gave the right to the grantee to select the land in two places. However that may he, it certainly gave him the right to select the six leagues particularly described, which included a right to select a less quantity at the same place; and it is not perceived that tho having obtained a title to a part elsewhere, even if that wore unauthorized and void, would affect the title of the grantee to the ro.sidue of the land actually embraced in the grant in the place designated by it. (Note 38.)
    ■Where a concession was made in 1330, and the title, which was issued in 1831 recited that the land was surveyed for the grantee on the 3d day of March, 1832. by the scientific and approved surveyor, Thomas IT. Borden.it was hold that the presumption was that it was surveyed by order of the alcalde, who was authorized by the concession to put the grantee in possession and issue to him the title, and in consequence of whose failure to completo the title, a special commissioner was appointed for that purpose.
    The presumption arising from tho language of the title being that the commissioner had evidence before him that there had been a legal survey of tho land by competent authority, it was not; necessary that he should have caused a survey, nor was it necessary that lie should embody in tho title the. authority under which the survey had been made.
    The presumption is that the officer authorized by law to issue the title lias done his duty and acted in all respects in conformity to law, until the contrary appears. And it is incumbent on the party who would controvert a grant executed by competent authority with the forms and solemnities required by law to repel this presumption by proof.
    The colonization laws of 1832 and 1831 did not interfere with concessions previously made to purchasers or settlers, and such concessions were, to ho consummated in perfect titles the samo as if there had been no repeal of the law under which they were made.
    Wo have heretofore decided that the construction of their powers and of the laws which conferred them, adopted and acted upou by the former authorities of the country, must be respected, unless it be clearly shown that they have exceeded their powers or have acted in manifest contravention of law.
    By the 30th article of the law of 1831 settlors, after having received the titles to their lands, were authorized to sell, the purchaser being charged with the performance of the conditions. There is therefore nothing in the objection that the grantee in this case did not perform in person the condition of settlement and cultivation.
    Where a concession was made in l«:ju for six leagues, and the final title in October, 1834, and tho payment of the dues was completed in 1883, and a small portion of the land was occupied and cultivated by means of tenants since the spring of 184.0, ifc was held that the conditions had been performed, and that the instruction to the jury that proof of their performance was unnecessary, whether correct or otherwise, was therefore immaterial.
    
      Error from Bastrop. The plaintiff in error brought suit against one Walker and anoihiT to recover the possession of a tract of laud. The defendant in error, Chambers, intervened, claiming' to be the rightful owner of the land, and was p-cuihied to definid. The facts of the case were as follows :
    The plain! iff offered in evidence the contract entered into by Benjamin it. Milam with the, government of Coahnila and Texas on the T2th day of January, 182(5, to colonize three hundred families above the San Antonio road, on the west side of tin: Colorado river, to the introduction of which (lie inter-vener objected, on the ground that said contract had never been carried out by said Milam, and was revoked and had expired by its own limitation before the execution of the deed to Haggard, under whom the plaintiff claimed, which objections were overruled by the court; said, contract was read to the jury, and the in!ervenor excepted.
    The pl.dntilF (hen offered in evidence, a document, purporting to be a commission given lo Talbot Chambers by the governor of Coahnila and Texas, dated Monclovn. :51st October, 18,‘54, which was granted on the application of Itobert M. IViiliamson, as the agent of Benjamin B. Milam to execute titles, and put the fa luilu s in! reduced by said ‘Milam in possession of tlieir lands; to the intro-duc'd ion of which the intervener objected, on the ground that no such contract existed v. lien said commission was giv-m, and that Elguizabal, who signed the same, «¡n not the governor of said ,State of Coahnila and Texas, but was a usurper, and other objections apparent; which objections being overruled, the conimisM'üi was read to the jury as ovi leuce, to wh'eh the iuterVenor excepted. ^nprcni ■ 'nvernment of the State! !'■> the el' in Talbot Chambers: Don of ■ i.'diuila and Texas. / itobert M. iViiliamson, agent of Don Benjamin lí. Milam, having made representation to his excellency the governor. praying for the appointment, of a commissioner to put the families, which he has cmnicted witli the supreme government of the State to settle in his colour', in possession of tlieir lands, ami to confer upon them titles in property for the same, his excellency has been pleased to make the following decree upon said petition :
    MoNCLOVA, October 31s¿, 1834.
    Attending to the fact that the contract celebrated between the government. oí the State and the empresario Benjamin B. Milam expired by its own limitation on the 25th of January, 1S32, the government cannot consider the families that may exist within the territory of said colony as belonging to it; but attending likewise to the fact that said families ought to bo provided for according to the IGth article of the colonization law of the 24th of March, 1825, now in toree for this case l)y article 29th of the, law of the 2Gth of March of the present, year, this government lias commissioned the citizen, Talbot Chamberí, o£ the vicinity óf San Felcpe de Austin, to put the said families in possession of tlieir lands in conformity with the lGtii article of the said law of the 24th o.1 March, 1825, and to confer upon said families the corresponding title, agreeably to the. instructions of commissioners issued on the 4th of September, 18'j7, reserving to the empresario the right to represent to the honorable Congress as soon as its convenes the interruption to the fnliilhnent of rhis-coidnict produced by the passage of the law of the Gth of April, 1830. The Secretary of Slate will communicate tins to the party interested, to the commissioner appointed, remitting the corresponding instructions, and the political chief of the department of Brazos, for the respective information of each one, and reserve the original record for the purpose of giving' an account of the same to the honorable Congress at its next session.
    Elguizabal.
    JUAN ANTONIO Padilla, Secretary of State.
    
    Which T have the honor to transcribe to you by superior order for your informal ion and the. corresponding effects, to which end I transmit to yon herewith the-following documents:
    No. 1. A copy of the law of colonization of the State of the 24th of March, 1825, under which the contract W'as celebrated and under which it has to be concluded.
    No. 2. A copy of instructions to commissioners of the 4th of September, 1827, according to which the commission of the present commissioner must be governed.
    No. 8. A copy of the law, No. 02, which regulates the fees of commissioners, &e.
    And I communicate this to you by superior order for yonr entire compliance with the same. Accept the assurances of my esteem and consideration. God and Liberty! Monclova, 31st October, 1834.
    Juan Antonio Padilla,
    
      Secretary of State.
    
    The plaintiff then offered in evidence the following title :
    Third Seal. Twobitts. [L. S.] Por the term of 1834 and 1835.
    Mr. Commissioner: James Haggard, a colonist introduced by R. M. AVilTmin-son, agent of the empresario Benjamin R. Milam for the contract which he celebrated with the supreme government of this State, dated 12th of January, 1820, with the greatest respect would represent unto you that my state is that of a married man, and that with my family I have entered the country for the purpose, of settling myself permanently, and that with the approbation of the agent of said empresario I have selected one sitio of land in the colony of the same; for which reason I present myself to you that you (as commissioner authorized for the purpose) may be pleased to admit me and ptit me in possession of said sitio, with the understanding that I offer to settle it and cultivate it according to law.
    Village of Mina, 21st of May, 1835.
    JAMES HAGGARD.
    To Mr. R. M. Williamson, agent of the empresario Benjamin R. Milam : Von will be pleased to examine the foregoing petition, if the land indicated is 'vacant, and if not, the name of the applicant.
    Village of Mina, 21st of May', 1835.
    Talbot Chambers.
    Mr. Commissioner: In attention to your foregoing decree I am bound to say that the representations of the colonist., James Haggard, are true; he is one of the colonists introduced by me, (as the agent of the empresario Benjamin R. Milam,) and that he is a man of family and entitled to the favor lie solicits.
    Village of Mina, 21st of May, 1S35.
    R. M. Williamson, Agent.
    
    In view of the representations of the agent of the empresario Benjamin R. Milam, in the foregoing information, I admit the colonist, Janies Haggard, according to the law, and order that the indicated land be surveyed by the surveyor, Bartlett Sims, to the end that the corresponding title may issue to the party interested.
    Village of Mina, 21st of May, 1835.
    
    Talbot Chambers.
    Second Seal. Twelve bitts.
    Qualified by the State of Coahnila and Texas for the terms 1828 and ’29, ’30 and ’31, ’32, ;33, ’34, and ’35.
    Flores.
    Talbot Chambers, commissioned by the supreme government of the State of Coalmlia and Texas for tlie partition of lauds in the colony of the empresario Benjamin It. Milam.
    Whereas Mr. James Haggard has been received as a colonist in the enterprise of colonization, contracted with the government of this State by said empresa-rio on the 12th of January, 1825, as appears oil folio No. 35 of this manuscript record of titles, and tlie said James ITaggarcl having proved that he is married, and presented the requirements provided by the law of colonization of the State of tlie 2-ltli of March, 1825, in conformity with the said law and the instructions which govern me, dated tlie 4th of September, 1827, in the name of tlie State I concede, confer, and put in possession, real and personal, of one sitio of huid to the said James Haggard, which land has been surveyed by the surveyor. Bartlett Sims, previously appointed for the purpose, under tlie situation and following lines’: Situated upon the western side of tlie Colorado river, .-and commencing at a stake, the northeast corner, and on the bank of said river where there is a liackberry 24 iuclies in diameter, south 76° east, 3 varas distant, and an elm 15 inches in diameter, north 57° east, 24 varas; thence south G0° west, 11,400 varas, I o a stake and southeast corner of sitio No. 3, where (here is a blackjack S inches in diameter, in the direction south 45° west, 7 varas, ami a postoak 12 inches, in the direction south 80° east, 6 varas; thence north 45° west, 1,450 varas, to a stake and southwest corner of sitio No. 3; thence north 42° east, 4,000, to a stake on the margin of said river and northwest corner of sitio No. 3; thence miming down tlie river with tlie meanders of tlie Mime to the place of beginning, five labors of said land pertain to the temporal class; and twenty to tlie pasture class, which serves as a classification for tlie price which lie is bound to pay tlie State for it according to the 22d article of said law and under tlie penalties therein established, remaining notified that within one year he is bound to construct permanent landmarks in each angle of. tlie. laud, and that lie is bound to settle it and cultivate it in conformity with the provisions of tlie law. Therefore, using the powers which have been ceded ,t<¿ me by tlie proper law and consequent instructions, I issue the present instrument, and order that a certified copy bo taken of it and delivered ■to tlie parly interested, that lie may possess and enjoy tlie land, he. Ills children, heirs, and successors, or whosoever of him or them may have a right to the same.
    Givcui in the village of Mina on the 21st of May, 1835, which I sign with assisting witnesses according to law.
    Talbot Chambees.
    Assisting:
    Assisting:
    TVTlliam Oldham.
    Joint G. McGehee.
    The plaintiff then introduced in evidence a chain of title from Haggard to himself, lo nearly all of which the intervenor objected “for reasons apparent “upon and connected therewith.” The deed from Haggard was dated July llih, 3837, and tlie deed to Joukins, tlie plaintiff, May 20th, 1841.
    Tlie plaintiff proved that Haggard had immigrated to the country previous to 1831; Unit in that year ho built a cabiii ami settled upon tlie laud with a ■stock of hogs, and in 1832 cultivated it; that he did not afterwards reside upon the land, hut remained in the neighborhood as near as safety would permit, having no fixed residence anywhere else, continuing to assert his claim toit, a mi that it was known as Haggard’s headlight league. One of the plaintiff’s witness es testified that Haggard came to tlie country “ on his own hook; ” that ■his wife never came; that two of liis sons came in 1833 or ’34 ; that one was killed by tlie Indians; that tlie other returned to the United States in 1835. Haggard remained in the country until liis death. A witness for plaintiff said .that* Bangs’survey was made in 1832 by Pratt Coleman. Hero the plaintiff rested.
    Tlie. intervenor introduced in evidence a deed from Jose Manuel Bangs to liim for three leagues of land, including the land in controversy, dated December Tiltil, 1S34. He tlieu proved tlie payment oE tlie government clues, the last payment being made February HUi, 1830. • Trie intervenor then offered to introduce in evidence a' deed executed to Jose Manuel Bangs on the 24th of -October, 1834, by Ira B. Lewis, special commissioner, for four leagues of land, Being part- of a concession of six leagues made to said Bangs by the governor of Coaliuila.and Texas oil the lltli of Hay, 1830 ; to tlie introduction of which .tlie plaintiff objected, on tlie grounds, 1st. Tliat said concession was made con-traiy to and in violation of law, and that the Governor of the State had no' power to make the same. 2d. That the application of Bangs was not made in accordance with law to entitle him to a concession for six leagues of laud as a settler, and it shows that he was not so entitled. 3d. That if entitled to such concession, the document offered in evidence shows that a portion of it (two leagues) was located and a title extended for it elsewhere, and that the subsequent location on the Colorado was illegal and void. 4th. That there was no legal survey of the land made by an authorized surveyor previous to issuing the title by Commissioner Lewis. 5th. That the law under which the title purports to have been made was not in force at the time of executing the title by the commissioner, and other objections apparent upon the document offered and other matters connected with it; ail of which objections were overruled by the court, and the said grant and deed were permitted to be read to the jury as evidence in the cause, to which the ifiaintiff excepted.
    The grant was as follows:
    Thiril seal. Two bitts. [L. S.] For the terms of 1830 and 1831.
    Most Excellent Sir: Jose Manuel Bangs, a native of the United States of the' north, a citizen of tins State, and an actual resident of this capital, with due submission, would represent to you that, on the 26th of September of the year 1810,1 left Baltimore with the expedition of the man deserving of his country, General Xavier Mina; that I embarked on the ocean in Mayi 1817, employed in tlie service of the printing office ; that I was permanently engaged in my profession all of the above-stated time, and with arms in baud defended the strong seige or blockade of the sea of the Spanish general Aredondo, until the 15th of Jimo of the said year 1817; that I was á prisoner with the garrison which defended the fortiiicatiou; I was conducted to the city of Monterey as a prisoner, and detained to labor in my office without any recompense except the-greatest necessities, and laboring for the long space of time of four years, in which 1 barely maintained a miserable subsistence, it became necessary for me to dedicate myself to other necessary labors foreign to my profession, as the-tyranieal government did not extend'to me the requisite nourishment. In the year 1821, when the independence of the nation ivas proclaimed, I obtained my liberty. In the year 1S23 I returned to my country, from when again I returned in 1827 with my family and a proper printing establishment, which I established in the State of Tamaulipas, to which government I sold it to remove-myself to this capital with another printing press, which I also sold to your government and offered to serve it, and am now, in effect, engaged. But desiring to establish myself permanently in the department of Bexar with my family, and to dedicate myself to agriculture and stock raising, I pray you, most respectfully, to he pleased to grant to me as a settler six sitios of laud of the vacant, lands of the State on the west side of the Colorado river, at the-crossing of the upper Sau Antonio road, in the colony of Colonel Milam, which sitios I offer to settle and cultivate in entire conformity to the law of colonization. This I pray as a consequence for my sufferings and the services that I have performed for the country, and which I have proven by the three certificates which I have duly exhibited, marked with the Nos. 1, 2, and 3, in the-which I shall receive favor and grace.
    Jose Manuel Bangs.
    City of Leona Vicario, 20th of January, 1830.
    Leona Vicabio, 27ft of January,' 1830.
    This petition will pass to the honorable ayuntamiento of this city for them, to inform me whether the petitioner possesses the requisites required by the 17th article of the law of colonization to the State to acquire the amount of laud he solicits.
    SANTIAGO DEL Yalle, Secretary.
    
    Viesca-
    Most Excellent Sir: The ayuntamiento of this city, in compliance with your superior decree of the 27th of January last, to the petition of the citizen Manuel Bangs, whether lands may be ceded to him in the department of Bexar, say that'Bangs is married to a lady of his country, North America; they have two children ; his public conduct and that of his wife, is good and regular, without having given the public any cause of complaint; that his office of printer has relieved him from any occupation, and that under your inspection and by the same of the supreme government of the State demanding his qualification, whether or not he is entitled to that which he solicits.
    Given at the session of the ayuntamiento of Leona "Vicario on the 18th of February, 1850. Aiiispe, Alcoser, Vega.
    Jose Guadalupe Solis, Secretary.
    
    LeoNA Vicario, llfíi of May, 1830.
    In conformity with the 17th article of the law of colonization of the 24th of March, 1825, 1 concede, as a settler, to the petitioner the six sitios of land which he solicits in the vacant lands of the State in the place which he selected or in that where it may best suit him. The alcalde of the municiplity to which the laud pertains that lie solicits will put him in possession of said sitios and expedite the corresponding title, previously qualifying- the class and quality of the said lands to show the price lie must pay the State for them, for which payment I concede to him the terms designated by the 22d article of said law. The secretary will give the party interested a copy of the petition and of this decree that he may present them to the commissioner for the effects which are to follow. Viksoa.
    Santiago delValle, Secretary.
    
    Tliis is a copy of its original which exists in the archives of the secretary’s office under my charge, from which it lias been ordered to be taken for the disposition of the most, excellent governor.
    LEONA VICARIO, 20th of May, 1830.
    Santiago del Valle, Secretary.
    
    Then followed the petition of Bangs to the political chief of the department of Bexar for an amparo for two leagues, which it suited him to select on the Brazos, dated November 3d, 1830. The order of the political chief to that effect, same date. The cousent of Jose II. League, agent for the Nashville association, to the selection of the lands within that colony, dated August 14thr 1S30. The amparo for the two sitios on the Brazos, issued November 17tliT 1830, by the alcalde of the municipality of San Felipe, to whom the order was-directed.
    Then followed a power of attorney from Bangs to Chambers,'(.lie intervenor, dated May 8th, 1831, to select the lands, take possession, receive titles, and to comply generally with the requisites of the laws of colonization that he was required to perform to secure complete and perfect titles. Then followed tlie petition of Chambers, as agent for Bangs, to the governor, praying for the appointment of a special commissioner to put him hi possession of the-lands and issue the corresponding titles. It was dated June 23d, 1834. Then the order:
    MONCLOVA, 28th of July, 1834.
    In conformity with the law of colonization of the. 24th of March, 1825, and! by the 30th article of that of the 2Gtli of March of the cun-cut year, and in exercise of the faculties which by it are conceded tome, I confer a special commission on the citizen Ira It. Lewis, (lint lie may put in possession this party of the land to which he refers in ids petition, and confer on him a title in due form, regulating himself to what is provided by the said law of the 24th of’ March, 1825, and consequent instruction of the 4th of September, 1827. The-seeretary will give to the party interested a copy of this decree and his petition,, that lie may present, them to the. commissioner appointed to carry out the, effects that are to follow, uniting this to the foregoing.
    VlDAUltl..
    Juan Antonio Padilla, Secretary.
    
    Tiffs is a copy, &c. (Usual certificate, signed by the secretary.)
    
      Then followed the petition of Chambers, dated July 29th, 1834, at Monelova, to Ira It. Lewis, commissioner, for the title to the two sitios on the Brazos. Then followed the corresponding- title dated at San Felipe de Austin, September 23d, 1834.
    Then followed:
    Third seal. Two bitts. [L. S.] For the term of 1S34 and 1835.
    Mr. Commissioner Ira R. Lewis — The citizen Tilomas Jefferson Chambers, with the due respect before you, says : That the citizen Jose Manuel Bangs having obtained from the supreme government of the State a concession for six sitios of land in class of settler, dated on the 11th clay of March, 1830, ho appointed me his attorney on the 8th of May, 1S31, to take the possession; and at my petition the most excellent Governor of the State, on the 28th day ■of July current, was pleased to appoint yon as special commissioner to expedite the corresponding- titles; and as I have had four of the six sitios surveyed on the western margin of the Colorado river, near and above the road that goes from Nacogdoches to Bexar, since the 3d day of March, 1832, by the surveyor Thomas II. Borden, I pray that you may be pleased to put me, in the name of mj1- constituent, in formal possession of them, and expedite the title which corresponds ; and in it I shall receive justice and favor.
    Monclova 29th of July, 1834.
    Thomas Jefferson Chambers.
    San Felipe de Austin, Avgust VUh, 1834.
    Being presented with the documents on the matter, I will put the parly in possession of-the four sitios which he has pointed out; and expedite 1 he corresponding title. I, Ira It. Lewis, appointed for the purpose. Thus I dispose and sign with assisting witnesses.
    Tra It. Lewis.
    Assisting-:
    W. IT. Steel.
    Assisting:
    Garrett Low.
    In pursuance of the decree of the supreme government of the 28th of July, 1834, and my foregoing decree, and in conformity with the law of colonization of the 24th of March, 1825, and consequent instructions, I proceed to put the citizen Thomas Jefferson Chambers, attorney of the citizen Jose Manuel Bangs, in possession of the four sitios of laud pointed out in his petition, part of a concession of six sitios which he has from the supreme government of the State as a settler, under the following limits and boundaries: The land is found on the right margin of the Colora,do river, near and above the road leading from Bexar to Nacogdoches, and was surveyed for the said party interested on thejid of March, 1832, by the scientific surveyor and approved ■citizen Thomas II. Borden, in the form that follows : Beginning the survey on .a cottonwood 30 inches in diameter, which is found on the western margin of the Colorado, on the upper edge of the road, from which bears a haekberry 10 inches, 8 varas to the south 40° east, and another haekberry 8 inches in diameter, 3 varas to the north 31° wesl, and taking the bearing to the west, at 14,210 varas made a corner on a stake; thence'’north 45° west and at 4,820 varas made a corner on a stake, and thence returning with the bearing north 45° east, and at 400 varas to the same river, and made the upper corner on a stake fixed on the margin of the river, from which, 20 varas to the south 70° west, bears a postoak, and 23 varas to the north 54° west another oak, and from this. point following the river down to the place of beginning. Williin •these limits and boundaries comprehend four sitios of land in the form designated on the annexed plan, and pertain to (lie temporal class the quantity of one-half sitio and the remainder to (he pasture class, which serves as a elasili-cation. Therefore, using- the faculties conferred on me bjr the said decree of the supreme government, and regulating myself to the laws on the matter, in the name of the free State of Coalmila and Texas I put the said citizen Thomas Jefferson Chambers, attorney of the citizen Jose Manuel Bangs, in the real and true possession of the said four sitios of laud under the limits and boundaries and according to the aforesaid surveys, and I expedite to him the present title in form that the party interested may possess, sell, barter, alienate, use, and dispose', of them at his will forever, his heirs, or successors, or whosoever of him or of them may have cause or right. Given in the village of San Felipe de Austin on the 24th of October, 1834.
    Ira. E. Lewis.
    Assisting:
    TV. II. Steel.
    Assisting:
    Garrett Low.
    'I’be. intervenor then proved'occupation and cultivation of a small portion of (ho land by means of tenants since the spring of 1840.
    The intervenor then introduced in evidence a communication from Governor Latona, doted April 14th, 1834, to the political chief at Bexar, accompanying’ seventeen printed copies-of the notice, declaring what colonics had been forfeited and (lie contracts annulled, including the contract of Col. Milam.
    The intervenor then introduced 1 lie testimony of Mrs. T. TV. Chambers, formerly TT>s. lVilberger, taken by oon.-ient, who slated that Haggard was at the house of her husband, Josiah lVilberger, in 1831, and was speaking of the land on which lie afterwards settled, and' that her husband advised him not to settle upon it as he had understood there, was a Spanish title to it.
    The plaini in then introduced several witnesses who had resided in the vicinity •of the land since 1830 and 1834, who testified that they never knew Bangs to he in this part of the country or hoard of his being here. The plaintiff also proved that parts of the laud were for long periods occupied by men who purchased from Haggard.
    It. wa ~ admit led that the ayuntamiento of Mina was not organized until 1834.
    There was a bill of exceptions as follows :
    Be it remembered that on the trial of this canse the court charged the jury that the, title of Jose Manuel Bangs, which was read in evidence in this cause, was a good and sufficient title to convey the laud embraced within it; the court also charged the jury tiiat the title of James Haggard issued by Talbot Chambers, eoinuiLsiouer, was only good to convey the hi ml embraced within it from its date, and that it had no'relation back to the time of (he settlement of the said Haggard on the land, and that the party having the older title was entitled to recover in this suit. The court also charged that no one but the government had a right to inquire into the non-p-rformauce of conditions attached to a grant h> b- performed subsequent to its issuance, and whether the conditions to Bangs’ grant, had been performed or not was a matter which could not he urged by the plaintiff in this suit against the grant. To all of which «barges the plaintiff excepts, .and prays, &c.
    There was a verdict and judgment for the intervenor. Motion for new trial overruled.
    It was assigned for error :
    1st. That said District Court permitted the document purporting to be a title from 1 lie government of the State of ('oalmila and Texas to Jose Manuel Bangs for the, lands designated therein to be read as evidence to the jury, and overruled the. objections of said appellant lo (.he same.
    2d. That the court erred in charging the jury that the, title to Bangs was a good and valid title to convey the land and was an operative title from its date; ■also in charging the jury that no person but the government could object to said till-' upon the ground that the conditions prescribed by law connected with said title had not been performed by the said Bangs or his assignee; also in charting that the grant to Haggard operated only from its date and could not relate hack to the'time of his 'settlement upon the land; also in charging that if both titles covered the same land the elder was the better title.
    3d. In overruling motion for new trial.
    4th. Judgment should have gone for the plainUffinstead of for the intervenor.
    
      Webb 8/ Oldham, for plaintiff in error.
    The evidence in the record shows that Milam contracted with the government in 1S20 to settle three hundred families within certain assigned limits; that Haggard was in the country in 1830, and was then on liis way to the colony; that iü 18111, after removing' his stock to the colony, he built a house upon the league of land, a part of which is now in controversy, and claimed it as his headlight as a colonist; that he lived in the house thus built for sometime, and until he was forced (as is plainly inferrable from the testimony) to leave it in consequence of its great exposure to Indian depredations; that he never established a permanent domicil elsewhere, but remaiued at the nearest places to the land where protection was-offered him, and was never absent except on occasional excursions in pursuit of the Indians, “who were very troublesome,” and who actually killed oue of' his sons, and that lie continued in the neighborhood uutil his death in 1841 or 1S42; that in 1832 he was residing upon the land and cultivating it, having then seven or eight acres in cultivation, and that from 1831 the league of land was known and recognized by every person in the country as Haggard’s headlight, and was universally called the Haggard league.
    The colonial contract of Milam with the government, under which. Haggard-settled upon tiie land in dispute, was made in 1820, and expired by its own limitation in 1832. There never was a commissioner appointed to execute titles to those who settled in the colony under the contract until its expiration,, and consequently those who settled there remained without their titles, or rather without the proper evidence of their right, until 1S35, a short time previous to which Talbot Chambers was appointed (upon the representation of' Robert M. Williamson, the agent of the empresario Milam) as special commissioner to put in possessiou’nnd execute title's to those who had settled upon the lands as colonists; but in giving this commission to Chambers, although it was evidently intended to protect and cover the rights and claims of those who-had come to tlio country and settled upon the grant within the time prescribed, yet it was so worded as to prevent tlio empresario or contractor from claiming-any benefit under it in the way of premium lands, as it expresses that the contract having expired those persons could not be regarded as his colonists,, hut still ought to be provided for under another article of the colonization law.
    The appointment of this commissioner and the phraseology of the-commission most manifestly show that the rights of the settlers to the lands upon which they had settled were respected by the government, and were-intended to he protected and carried out in good faith, notwithstanding the-penalties which it might, choose to inflict upon the contractor for a non-compliance with all the stipulations of his contract; and nothing less could have been expected from a just government. 'The settlers came to the country under the, assurances of the contract then in force and the promises of the government to secure to them their lands, and reposing upon these assurances ¡indi promises they settled in a wilderness exposed to hardships and Indian outrages,, and by a sacrifice of toil and blood contributed to its amelioration and settlement.
    A prominent question in the case, then, is at what time did the rights of these settlors to the lands upon which they settled commence? For upon tlio solution of this question (lie controversy in this case will rest, provided the views entertained by the, plaintiff, in respect to the. title under which the inter-vener claims for hiuiself and others who hold under him, should not he sustained.
    As this title is set up adversely to the plaintiff’s claim it devolves upon him to dispute its validity, and to show, what he conceives to bo the fact., that it; is utterly void. The first ground he takes to establish this proposition is that the governor of Coalmlia and Texas had no authority under the law to make a concession of six leagues of laud to Bangs for the consideration mentioned in his. petition and upon which the concession was made.. That officer derived liis whole, power and authority from the, written constitution and laws of his State, and his acts in violation of either (whether official or unofficial) are entitled to-no more respect than would he given to those ox the humblest individual in the 'State. The validity of those acts, then, must ho tested by their conformity or non-conformity with (hose laws.
    The. concession to Bangs was made to him as a settler, he petitioned for it as .a settler, and presented no consideration known to or recognized by the law which entitled.him to a-grant at all, except his promise to settle the land and dedicóle himself to agriculture and the raising of stock.
    We. are not disposed to deny that Bangs was entitled lo a grant of one league of land as a sel tier ; but according to i lie fads stated in his petition and the report of the a\ untamiento of Leona Vicario, lie was only entitled to it under the provisions ui the 3d and 4th articles of the colonization law of C. and T. ■of 182.). He did not, however, in his application conform to any one of the rules prescribed by ihose articles, and did not predicate his right to the law upon them, and i£ tin concession had been for only one league it would not have been sustained by them. Indeed, so thorou'lily was th" int.ervenor convinced .that they did n<>; sustain the grant in the court below, he did not attempt to urge them as liis authority for it. lie there planted himself upon the 16th, 17th, and 18th articles of the same law as having conferred the authority upon ■which it was made, and we will now examine them and see whether or not they did confer that authority. (Laws C. <£ T., pp. 10,18.)
    Articles 11 and 13 of the Jaw prescribe the quantity of land which shall bo granted to colonists introduced by empresarios under their colony contracts. Article. 16 (lien provides that “families and .-ingle men who, having emigrated separately and at their own expense, shall wish to annex themselves to any of the. new' settlements can do so at all times, and Uve, same quantity of land ■“shall be respectively assigned them as sped lied in the two foregoing articles.” The quantity specified in those articles is a labor for eae.h family whose occupation is the eullivationof the soil, and a sufficient quantity to complete a sitio shall be. added thereto if the family combine’ i stock raising witli the cultivation •of tile soil; one-fourth of this quantity was'allowed to single men.
    According to I lie terms of this article. Bangs, being a man of family, (having a wife and'two children,) who had emigrated separately and at his own expense, would llave, been entitled to receive one league of land, had he gone, to a colony and applied to the proper authority for it, and had he settled iin the. colony wii Ivin the first six years after its establishment he would have been entitled to one additional labor, but to nothing more, and yet a eonees-■siou was made, to him for six leagues as íi sel tier in the eolouy without his ever ¡having seen it.
    It is said, however, that, by the 17th article of the same lawr, the Governor was authorized to increase that quantity ami that the concession was made in ■conformity with that article. The article, reads thus : “ It shall belong to the ■‘■executive to increase the portions specified in articles 14, 13, and 16, in pro- “ port ion to the. family, industry, and activity of the colonists, according to the “ separate reports upon the subject tlvat shall bo rendered by the ayuntamiento “ and commissioners,” &e.
    The 18Ui arl iele of the same law, and which is also invoked by the intorvenors in support of (ho g-raut, is as follows: “Families that shall arrive conformably “ to the 10th article shall present themselves forthwith to the political authority •“ of the settlement they shall have elected, who, recognizing on their part the “necessary conditions required by this law, shall admit the same, put them in “ possession of the lands to which they are entitled, and give notice ivnmeffi- “ afely to the executive that the same of himself or through persons he shall “commission for that purpose may issue them their titles.” (Laws C. & T., p. 18.)
    Talcing the 17th and 18th articles together, it is manifest that the Governor ■could not issue, or authorize a title to be issued to settlers who came in under tlve 10th article even for one league, except upon the report of the ayunta-mientos, the political authority of the settlement they elected, (Holloman v. Peebles, 1 Tex. K., 097-8,) who, having ascertained that the settlers possessed •¡the necessary conditions ((qualifications) required by the law to entitle them to land, had put them in possession of it and reported the fact; and it is equally manifest that an augmentation of the quantity allowed by the 16th article could not bo granted under the 17th, except upon the report of the same ayuntamiento showing that in consequence of their “family, in- “ dustry, or activity,” it was necessary. The right to judge of and determine this necessity was vested in the commissioner of the colony or the ayuntamiento of tiie municipality in which the, sel tier had established himself, and not in tiie Governor, and until lie received tiie report contemplated by the law from one ortho other of them, showing this necessity and the extent of if, he had no author'll v to act, or, in other words, lie had no jurisdiction over the subject. (1 Tex. ÍÍ., 720; 13 Pet. It., 493; 4 U. S. Cond. It,, 356.)
    But suppose the Governor had the right to make an augmentation of the quantity of the laud allowed to settlers by articles 14,15, and 16 of the colonization iaw of 1825, without receiving the report of the ayuntamiento of the municipality or the commissioner of "the colony showing the necessity of it, by what rule of law was that right to be controlled ? The Í7th article, which gives the only authority to be exorcised, says that he may do it “in proportion (o the. family, industry, and activity of the colonists.” Now what was meant by the terms “the family, industry, and activity of the colonists?” Ordinary minds would come to the conclusion at once that the word “family,” as used in this category, meant tiie extent or number composing- the family. If a family emigrated to the country so numerous in itself that one labor for agriculture and twenty-four labors for stock raising were insufficient for their actual wants, then the quantity might be increased according to their actual necessities. The word “industry ”"is of similar signification. It unquestionably means that if a colonist manifests by his industry that he is capable of cultivating more than one labor, or shows that he has stock which twenty-four labors are insufficient to pasture, the quantity may be increased to the extent necessary for either or both of those purposes. The word “activity,” if intended to apply to a quality different from that of “industry,” was most manifestly intended to mean that superior activity which a colonist might exercise in promoting tiie objects of the colonization law in the settlement of the country, in ameliorating its condition by the erection of mills and other useful establishments, in defending it from tiie savages whicli infested it, and by other means affording additional inducements to others to emigrate to and settle in it. This construction of the word is strengthened by the contemporaneous history of the country in its early settlement. We know it was not unusual for grants of as many as five leagues to be made to individuals for building mills, but we never heard of a grant, except this, where an augmentation was made, and an unusually large augmentation too, upon any consideration not connected with the promotion and advancement of the settlement; and we think the history of the laud titles of the country will not furnish another instance of such an one having been made. That species of “activity ” which would soften the rigors of a wilderness and greatly-exposed region might well entitle those who exerted it to a boon from a government inviting and anxious to obtain settlers upon its vacant territory; and wo have no doubt that a report made to the executive by the proper officers, the political authority of tiie settlement, that snob had been exercised by a colonist, would have authorized him to grant that colonist a tract of laud larger than was allowed by the law to ordinary settlers.
    If we have given a'proper construction to the terms “family, industry and activity of the colonists,” as used in tiie' 17th article in the colonization iaw, (and if language is used to convey definite ideas to the mind and is restricted to that object ‘it would seem' impossible to give it any other that would bo more liberal in respect to tiie rights of the colonists or the power of tiie governor to confer them,) what was there in the case of Mr. Bangs which brought him within the provisions'of that article?
    There was certainly nothing in his petition; for divest it of the extraneous and irrelevant matters which were thrown into it and it presents the simple case of a man with a small family who had emigrated to the State at his own expense, and who desired to relinquish his previous occupation of printing', and dedicate himself to agriculture and stock-raising-, and for that reason asked Hint land might he granted to him for the purpose. He did not even allege that his family was so numerous that the quantity of land which the law directed to he assigned to a sol tier was insufficient to enable him to carry out his object; nor did he intimate that by industry he would he able to cultivate more than, a labor, or that he. had a larger number of stock than twenty-four labors would pasture, or that by his activity in the “new settlement” to which he liad annexed himself (he had annexed himself to none) he had ameliorated its condition, increased its resources, or defended it from its enemies, and had thereby offered inducements to others to settle in it.
    The previous sufferings or services of Alt-. Bangs in the revolution of Mexico had nothing' to do with his right under the law to a graut of laud as a settler in Texas. Had ha applied to tlie congress, a statement of these sufferings and services might have been available in inducing' that body to give him some compensation; or if they were of a character which entitled him to a military graut lie might have obtained such an one ltad he asked for it; and for all this court knows or can know he may have applied for and obtained such a grant; but whether he did or not this is not a grant for military services, and no consideration for a grant of that character can be invoked in aid of it.
    The services of Mr. Bangs as a printer did not entitle him to a grant of land under any law that we have seen; and if the concession was made in consideration of such services it was without the authority of law and void. (Patter-sou v. Winn, (i U. S. Coud. R., 356-7; Polk’s lessee ». Wenda, 3 Id., 286; Wilcox v. M’Ooimell, 13 Pet. R., 498.)
    But if the matters stated in Bangs’ petit,ion were sufficient (if true) to liave entitled him to an increase of the quantity of land allowed to ordinary settlers, still there was no legal evidence that the allegations of the petition were true. The law prescribed the mode by which evidence should be obtained and communicated to the executive; it was “the separate report upon the “subject that shall be rendered by the ayuntamiento and commissioners.” (Laws C. T. x). 18, art. 17.) It is hardly necessary to repeat .that the ayunta-mientos referred to were those of the municipalities in which the lands were situated and the settlements made. (Ilollomau v. Peebles, 1 Tex. R., 697-8.) TJiis petition was referred to the ayuntamiento of Leona Vicario. That body had no jurisdiction to investigate llie matter ; but if it had its report did not contain the evidence necessary to authorize the grant. It sustained the petition in the fact that Bangs was a married man, having a wife and two children, and Hint lie and his wife had so conducted themselves as to bring no discredit to the State. It did not even recommend that the grant should be made; it referred, it is true, to his office of printer, but in a way that afforded no strength, to the claim, because that it showed that in consequence of it he had been relieved from all other public duties.
    In denying- that the Governor of Coalmila and Texas had authority under the circumstances presented in this case to make the grant we are not seeking to controvert what we admit to be a general legal principle, that the acts of Xiublic officers within the scope and limit of their jurisdiction are xiresumed to be in accordance with the law. But the jurisdiction of the officer over the subject matter must first be shown to exist before any snch presumption arises in liis favor. Jurisdiction is never presumed. In this case the record not only does not show that the Governor liad jurisdiction, but it shows affirmatively that the facts necessary to give it did not exist. Had it been entirely silent there might have been some plausibility in urging the presumption that they did; but when the grounds upon which he acted (the petition of Bangs and tlie report of the ayuntamiento of Leona Vicario) aro incorporated in the ■concession as tlie, foundation of it there is nothing left for presumption ; and if these do not warrant it, it would be presuming against the record and against the facts to suppose that there was anything' behind which would sustain it. (1 Pet. It., 810; 2 Pot. Coud. Ii., 100; Cox big., p. 21, sec. GO; Id., 413, sec. 37; 8 Wheat. It., 108.)
    It may he urged hero as it was in the court below that it will be presumed the Governor liad other evidence before him when lie made the concession than what appears in it, because Mr. Bangs in his petition referred to certificates marked 1, 2, and 3, which he said lie'had duly exhibited.
    The jurisdiction of the Governor to augment the quantity of the land allowed to settlers was a limited one, to he. exereise.il only in the precise eases which the law authorized.; and when exercised the facts upon which it was based must be shown. Hence the practice of incorporating those facts in the title, in order that it may be seen that the authority to make it existed. Wo are therefore not at liberty to presume anything wliicli docs not appear in the title. (3 Yerg. It., 3GG, 395'; 5 Pet. It., 072 ; Hard. It., 493; 7 Mou. B., 221.)
    But if presumptions could be entertained in this case, nothing could be presumed in favor' of this title from the reference to certificates 1,2, and 3 in the petition, because it shows they were only offered to prove the previous sufferings and services of the applicant; and as those sufferings and services con-■stitnled no legal ground for the grant, the proof of them would not have conferred jurisdiction on the 'Governor to make it. Tlie only thing which ■could have conferred that ■jurisdiction would have been the report of the ayun-tamiento of the municipality in which Bangs settled that lie had emigrated to tlie country, separately anil at his own expense, and had annexed himself to a ■“new .settlement; ” that he had been put in possession of the land to which he was entitled under the law by the -“political authority” of the settlement, and in consequence of his “family or industry,” the quantity assigned him was insufficient for his actual wants, or that he merited a larger quantity in ■consequence of the benefits lie had conferred upon the settlement by his ■“activity.”
    ■ None of these facts appear, but on the contrary a state of facts is presented which shows absolutely that they did not exist. It is not then a question of the wrongful exercise of .power.after jurisdiction had attached, we urge, but it as one of a usurpation of jurisdiction where none existed. 'If the facts upon which the Governor.acted wore not sue,lias would give him jurisdiction under the law liis. act was a nullity,and could give no right and afford no defense.” ■(Sutherland v. De Leon, 1 Tex. It., 310.)
    But if tlie concession were good, the title issued bjr the commissioner upon it in October, 1834, is hall for a varíe,ty of reasons. 1st. The land was conceded for the sole purpose of being occupied and devoted to agriculture and stock-raising by the person who ¡iske.il for it. The actual settlement and cultivation ■of it was the expressed and only consideration for the grant; and if the evidence shows that Bangs did not give the consideration, and was incapable of giving it at the time the title was issued, it was void for tlie want of consideration ; it was a nudum pactum.
    
    It is seen from documents connected with the title that two leagues of land on tlie Brazos river, a part of this concession, were deeded to Bangs by tlie same •commissioner, and that he was.put in possession of them a month before, the execution of the title to him for (he four leagues on the Colorado. Now if he was entitled .to hold those two leagues it was because lie settled upon them with the intention of cultivating them and raising stock in conformity with the terms and conditions of the concession; and if lie carried out or intended to •carry out in good .faith that object, he could not have performed the condi-~tious of his grant in respect to the lands on the Colorado, because lie was incapable of settling-upon and occupying both places at the same time. We <lo not moan'to say that a man-cannot have the constructive possession of two tracts o£ land at the same time, or that in legal parlance he could not occupy them both. We admit that in contemplation of law an occupation by his tenants or servants would bo his own occupation; but the occupation contemplated by this grant and which was the consideration for it mean something different from an occupation by tenants or servant's. The laud was given to him as a gratuity. lie asked for it that he might have a home where he could dedicate himself to agriculture and stock-raising, not to sell, or rent, or speculate upon. Ilis personal occupation of it was the consideration and motive for the grant; and when ho was put in possession of and received a title for llie. lauds on the Brazos its objects and purposes were accomplished. The concession had then performed its office. The grant could not be divided. (10 Pet. It., 300, 311.)
    Tlie title in this case was never perfected. The delivery of the corporeal possession of the laud by the commissioner to the grantee was essential to its perfection; and more especially was this the case in a grant where the actual possession and occupation of the land was the sole consideration for the grant. The record shows that Bangs never was at any time upon the land or with the commissioner to receive either the possession or tiie title. Everything that was done in the matter was done by his attorney;. and if it wore competent for him to receive in the name of his principal the ‘‘formal” possession which the law requires to be. delivered, and the delivery of which was a condition precedent to the final consummation of the title, that possession was never delivered even to him. The deed was executed at San Pelipe, near one hundred miles from the. laud, and it is seen from the language employed that the possession was (lien and there delivered. This of course could only have been a fictitious, nominal possession, certainly not a corporeal one by livery of seizin, such as the law manifestly contemplated. Besides it was a possession given ■without riling the adjoining proprietors, one of whom was Haggard, under whom the plaintiff claims. (Laws C. & T., p. 71, art. 4.)
    The concession was of no value until the precedent condition of settlement was performed and could not he the foundation of a title. Snell was the rule of the, Spanish law, (2 "White Becop., 283,) and such was the rule asserted and reiterated by the Supreme Court of the United States in a class of eases from Florida precisely similar to the present one. (Kingsly’s case, 12 Peters, 47G; Mills’, 12 Peters, 213; Seatons & Sibbald’s, 10 Peters, 311, 313; Wiggins’, 14 Peters, 334; Buyek & O’llana's, 13 Peters, 215 and 275. See also United States v. King, 7 IIow. B., S33; and Menard’s Heirs v. Massey, 8 Id., 293.)
    Another objection, and one which we consider fatal to the deed executed by the commissioner, is the land was not surveyed previous to its execution according to law, or by any officer known to the law. In the application for the deed it is stated that the. attorney of Bangs had caused the land to be surveyed hi March, 1832, by Thomas II. Borden. The testimony says the survey was made by Pratt Coleman, a different person altogether. But whether surveyed by -one or the other of them, neither had any authority to make it. If made it was a private survey which no one was hound to respect, and it conferred no legal rights upon the person for whom it was made. The commissioner; however, adopted the statement made by the attorney in his petition, and assumed that the land was surveyed by Mr. Borden ; but of this ho could have had no official knowledge because his own appointment as commissioner was not made for more than two years "after the time at which it was represented the survey was made. Who was Mr. Borden ? Is there any evidence before this court or was there auy before the commissioner upou which he could act wider the law to show that Borden was authorized to survey the public lands and thereby to sever them from the public domain to the prejudice of the rights of others ? The 7th article of the commissioner’s instructions (p. 71) made it •his duty to appoint the surveyor aud to require him to take an oath faithfully to execute the duties of his office ; and the 24th article of the same instructions made it his duty to “ take special care that the portions of land “granted the colonists by articles 14, 15, and 16 (Col. Law) be measured by “the surveyors with the greatest accuracy without permitting any one to take “ more land than what is pointed out by the law.”
    In this case the commissioner did not appoint the surveyor; lie did not require him to take an oath faithfully to execute the duties of office; and he knew nothing about the measurement of the laud and did not know but a much larger quantity was embraced in the survey than was pointed out by the law or authorized by the concession. He blindly adopted the representation of the attorney and executed the deed upon that representation. It would have been just as well and as-much in conformity with the law had he executed the deed' upon a survey made by Mr. Bangs himself.
    Should it be said that these instructions were directory to the commissioner and that third persons could not be prejudiced by his failing to observe them,' we would reply that this might be true if the violation of the law had not been knowingly committed by the party himself. If, for instance, the surveyor had been previously appointed by the commissioner or had been known as the surveyor of the colony, and his acts as such had been recognized by the commissioner previous to his making this survey, the party calling upon him to perform the work might not have been required first to ascertain whether or not ho had taken an “oath faithfully to discharge the duties of office.” Finding him in office the presumption would have boon that he was legally there and qualified according to law to discharge its duties. But when he (the party) gets his own private surveyor, knowing at the time that he had not been appointed by the commissioner and had not. taken the oath of office which the law prescribed, he can claim no presumptions in his favor, because there is nothing upon which such presumptions could be based. If reason did not sustain us in this position the authorities upon the subject are clear and conclusive.
    A survey made by a deputy surveyor out of his district is void and a patent cannot issue upon it. (Pet. C. C. K., 418; X Wash. C. C. JR., IS, ’27, 26S, 312.) And why? Because for the want of authority to make it. A deputy surveyor is a sworn officer, and being such his official acts, even out of his district, ought to be entitled to as much respect and more credence than the acts of an individual who was not sworn and had no district. Would a survey made by a sworn comity or district surveyor of Harris county in the comity of Travis possess any validity? And upon such a survey would the Commissioner of the General Land Office he authorized to issue a patent? (1 Tex. B., 67, 77.)
    In Barton v. Smith, 1 Bawle B., 403, it is said that a survey made previous to-a warrant is void. Why? Because tlio warrant confers the authority to make the survey and without it the survey lias no authority. “A survey made by “the agent of a deputy is void,” (7 Sergt. & Bawle, 185,) and the reason is that a deputy cannot appoint an agent and confer authority upon him; much more should a survey he regarded as void when made by the agent or employee of the party for whom it was made. In the case of John Smith, T. v. The United States, (10 Peters, 327, 334, 335,) it is emphatically stated that a survey of the public lands by a private surveyor is void. “Ho government gives any “validity to private surveys of its warrants or orders of survey.”
    But if the objections to the surveyor were removed another question would arise — could the commissioner have legally executed a title upon -this survey? Did he know that land surveyed more than two years before he came into office was “measured by the surveyor with the greatest accuracy” and that the party had not been permitted to take more laud than lie was entitled to ? (Laws C. &. T., p. 73, art. 24.)
    The colonization law of March 24th, 1825. under which the concession purports to have been made, was repealed in 1832, by the 38th article of decree 190, (Laws C. T., p. 193,) and when the title, was issued in 183-1, there was no law in existence which authorized it; and this objection, apart from all others, must prove fatal to the title. It is true the liith article of the same decree saved the concession; but it was preserved only as a concession — an inchoate right which could not have been perfected into a title after the repeal without 1 he farther action of the legislature. Tt stood then like an order of survey obi ¡lined “from a legally-authorized eounnis-.iouer ” prior to the act of the consultation closing the land offices. These orders of survey were preserved by the constitution of 1830, but they could not be matured into a title without legislative action, arid hence, the 12th and 20th sections of the general land law of 1837. (Hart. Dig., art. 1848, 1850.) This court has frequently decided that applicants, to obtain titles upon these orders of survey, “ nmst'com-“ply with all the requisitios pointed out by the laud law of 1837.” (3 Tex. B., 239; Dallam, 381.)
    The repeal of a law pending- a proceeding under it stops all further proceedings. Subsequent acts are void. (8 Blackf. B., 513; 5 Id., 195; 1 New Hump. B., (il; 1 Gallison B., 177; 5 Or. K., 28L; 2 TT. S. Cond. B„ 250, 340, 388.) -By the 29th article of decree 272 (p. 251) the decree 190 was repealed; but there is nothing in the repealing aet which revived any portion of the previously repealed law of 1825 except the provision for issuing titles to the inhabitants of the frontier of Nacogdoches and those east of Austin's colonies. The. augmentation spoken of in the 23d article, to families who had emigrated separately and at their own expense, manifestly referred only to the additional labor, which was to he allowed under the 16tii article of the law of 1S25 to those who settled in a colony within (he first six years after its establishment, and a new mode was provided for obtaining titles to those augmentations dille rent from any that is found in the law of 1S25. Such an augmentation or grant as is claimed in tins case was evidently not provided for or intended to he provided for by decree No. 272. And if it had been it would not make the title good, because in executing it not a single provision of the law was complied with. (See articles 32, 33, 34, and 35 of decree 292; also articles 15 and 19 of the same decree, respecting the appointment and qualification of surveyors.)
    That the entire law of March 24th, 1825, was not intended to he revived by decree No. 272 is shown by the fact that as ranch of it as was necessary for issuing- titles to the inhabitants of the Nacogdoches frontier was specially revived, inclasio unius est exclusio altarías, and is farther shown by the new provision made for issuing titles for the augmentations allowed under the 16th article of the old law. If it had been intended to revive the whole of that law this new provision was unnecessary.
    Decree 309 of the 2d of May, 1835, provides that titles shall be issued to all persons who emigrated to the country previous to that time in accordance with tlie law of the 24th of March, 1825, “agreeably to the commissioner’s instructions of the 4th of Sepember, 1827.” (Laws O. & T., p. 297.) Here then is a revival of the law of 1825. Its provisions are again brought into action, and it is the first and only law under tire authority of which a title could have been issued to those who claimed under tire law of 1825, after its repeal in 1832. This revival, however, does not give validity to the title issued ~by the commissioner Lewis to Bangs in 1834; because the title was issued before the reviving decree was passed, and was not in any particular in conformity with the law of 1S25 or the commissioner’s instructions in 1827. But the title to Haggard of May 21st. 1835, comes directly within the spirit, intention, and provisions of the decree No. 309, and is protected by it.
    The 26th article of the colonization law of 1825 (p. 19) prescribed the term of six years as the period within which the “new settlers” shall occupy and cultivate tlieir lands, otherwise they shall be considered as renounced. Now, if the concession of six leagues of land to Bangs had the authority of law to support it' at the time it was made, still being upon the consideration of settlement and cultivation bjr him, that condition must have been performed before a perfect right to the laud was or could be vested in him, and if he failed to perform it within the time limited the law considers that he had renounced all right which lie acquired under tlie concession. (Holloman v. Peebles, 1 Tex. It., 073; XTorton v. Brown, 2 Tex. It., 96.)
    The concession was made in 1830; the land was surveyed, if surveyed at all, in 1832; aud tlie record shows that Bangs never settled upon, occupied, or cultivated it at any time, and that there was no attempt to occupy it by any person claiming' under him nntil 1840, and then only by a widow woman under a lease of a few acres made to her by the .attorney.
    Whether tlie grantee could have taken the possession immediately after receiving the concession or not is a question not now necessary to be discussed. He unquestionably could have done so immediately after the survey, that is, if his survey was a legal one, because a legal survey was the separation of the land from the mass of public domain. A failure to take the possession for more than six years after the right to do so existed was, in the language of the law, a renunciation of the right. (1 Pet. R., 635; 13 Pet. Tí., 498.)
    This is not a grant within the meaning of that clause in the 10th section of the general provisions of tlie Constitution of the Republic wliich exempts citizens from tlie obligation to reside upon their land, because the whole contents of the lirst branch of that section show that the mind of the framer of it was directed to that class of the citizens whose claims for headlights did not exceed one league and labor, aud this is rendered more manifest by the 24th section of the •general land law of 1837, which, after releasing grantees from the performance of the conditions of their grants, provides that this release “shall not “extendió any grantee or individual for a greater amount of land than one “league and one labor.” (Hart. Dig., art. I860.)
    It is not admitted that the possession of Mrs. Burnet in 1840 under a lease from the intervenor was a compliance with the consideration for which the concession was made, viz, that Bangs himself should settle upon it and dedicate himself to agriculture and stock-raising. Besides, Mrs. Burnet’s possession will hardly bo construed to extend beyond the limits -of her lease, and the testimony shows that she only leased a small quantity and agreed to put in cultivation twenty acres. (Acts 4 Congress, p. 91, seo. 21.; 1 Tex. R., 779.)
    We regard this grant as essentially different from one acquired by purchase under tlie 24th article of the colonization law of 1S25. In a grant of that kind the main consideration was the price, and the fee immediately passed from the government to the grantee. The conditions of settlement and cultivation are subsequent and subordinate to the main consideration, and although the grantee might have been divested of the fee for the non-performance of tlie subsequent conditions, yet that was a matter between him and tlie grantor. But in this case the main consideration for the grant was settlement, cultivation, and stock-raising, aud the performance of it was precedent to tlie right to hold the-land.
    But, in fact, there is nothing in the 24th article which requires settlement and cultivation to perfect the title; they are not conditions prescribed by law to the grant; and the 27th article shows that the absolute foe passed to the grantee by the grant became the right of alienation ; one of tlie strongest evidences of' dominion is shown to exist in him even though lie had not settled and cultivated.
    The term “new settler” in the 26th article was manifestly not intended to apply to purchasers under the 241 h article.
    But if the court decide, in view of all the circumstances, that the grant to Bangs, under which the intervenor claims, is a good one, then the question arises, Which is tlie better title, Haggard’s or Bangs’? And this brings us to tlie inquiry presented in the early part of the argument, At what time did Haggard’s right commence ? Tlie evidence shows that he was in the country in 1830; that he settled the land claimed by him and improved it in 1831; cultivated it in 1832 and continued to reside upon it until he was probably driven off by the Indians; that he stated and it was understood by all that he settled, it as one of Milam's colonists, whose contract was then in force; and that it was universally recognized aud considered from that time as his headlight as one of the colonists'; and that he never abandoned the country or the settle- _ nient, but remained as near the land as his personal safety would allow, and’ and that he performed that essential and meritorious part of the duty of a colonist, the protection of the settlement from Indian depredations, as far as his ability permitted; that there never was a commissioner appointed by the government to execute titles to the colonists of Milam until 1834, and then not to them as his colonists, hut as settlers under the 16th article of the colonization law of 1825, and that he-received a title from the commissioner thus appointed in May, 1S35.
    Upon this state of facts we insist that the right of Haggard to this particular tract of land commenced in 1831 at the time of his settlement upon it, and that his title when issued in 1S35 related hack to the time when the right accrued. Article Otli of the colonization law of 1825 (p. 17) declares that “contracts “made by the contractors or empresarios with the families emigrating at their “own expense shall be guaranteed by this law so far as they are in conformity “with its provisions.” The report of Mr. Williamson, agent of the empresario Milam, shows that Haggard settled ou the land under a contract with him. What was that contract? Most manifestly that Haggard should receive a title to the laud upon which he thus settled as a colonist.
    It is a principle in equity that the patent which is the consummation of the title relates hack to the inception of the title; and therefore in a court of equity the. person who lias first appropriated the land in contest has the best title. (Taylor & Quarles v. Brown, 2 U. S. Cond. It., 243 ; 9 Or. R., 19.)
    A deed executed in pursuance of a previous contract relates hack to the time of the contract and covers all intermediate acts. (1 Johns. Cas., 81, 85 ; Yin. Abr., Tit. RELATION, 28S, 9 ; 3 Penn. R., 428.)
    A subsequent grant upon an cider entry will vest a good title against an elder grant. (Anderson v. Cannon, Cooke R., 27; Polk’s Lessee v. Wendall, 9 Cr. R., 87; G-arrelson v. Cole, 2 II. & Mcl-I. It., 459; AYest v. Hughes, liar. & Johns. R., 0-299; Ross v. Roed, 1 AVheat. R., 482 ; Bodley v. Taylor, 2 U. S. Cond. R., 228; 5 U. S. Cond. R., 271; 1 Pet. R., 664, 667.)
    AVhicli of these parties in point of fact lias the oldest entry? Haggard actually settled in 1831 as a colonist.
    This was notorious and direct notice to all who desired to locate. Bangs, without giving notice to him (though living upon the land) orto any other person, had 'it privately surveyed in 1§32 by an unauthorized surveyor; made no record of his entry or survey in the public office or with any known officer of the country; and in 1834 procured a tille to be executed at a remote and distant place, (sr-ill without notice to Haggard,) which title he did not place upon the records of the municipality or country until 183S.
    According to the doctrine of relation we insist that Haggard’s.deed, though not executed until 1S35, related back to his inceptive right in 1831, and that, therefore, lie had the elder light.
    Objections were made at the trial below tothe introduction of some, of the intermediate conveyances from Haggard to Jenkins the plaintiff. We shall not notice them here, 1st, because being general without any specification of the grounds upon which the objections were made, the court very properly overruled them ; and, 2d, because upon examining the documents we can perceive no valid objection to them. (Wallis v. Rliea & Ross, 10 ÍT. S. Ala. R., 453.)
    It, was also urged below as an objection to the commission and authority of Talbot Chambers, who executed the title to Haggard, that Elgnizahal, who gave the commission as Governor of the State of Coalmila, was not the legitimate Governor bat a usurper. The commission was issued on the 21st of of October, 1S34. (Reo., p. !i), 22.) Whether Eiguizebai was in fact tiie Governor or not at that time, or whether lie attained to tlie office by force or by law tlie decrees do not show, and we have no means of ascertaining; but we find by decree 202 of the 12th of March, 1S35, that he was the Governor previous to that time and recognized as such bj' tlie congress; and his resignation of that office was on that day accepted by the congress, and tlie executive power of the State was then vested in Jose ÍL Cantu. (Laws C. & T.; p. 281.)
    If we have succeeded in showing that cither the concession or title to Bangs was not good in law, or that the title to Haggard was elder and superior, then tlie charge of the court to the jury was erroneous, and the judgment must be reversed. We think that the title, of Bangs is clearly and incoutroverlibly void; and if so, the intervenor having relied upon no other, this court (tlie evidence being all in the record) will give such a judgment as the court below should have given, a judgment for the plaintiff'for tlie laud in controversy.
    
      T. J. Chambers, for defendants in error.
    Those are kindred suits, (Blakey and others v. Chambers, and Jenkins v. Chambers and others,) involving facts and principles almost identical. Eacli is for land covered by two conflicting Mexican titles, and the same title is relied upon by tlie same party in both tlie cases on one side, and on the. other two oilier titles are set up, one in eacli case, issued by the same authority. It is therefore proposed to discuss both cases in the samé argument, and to submit Ihe.m to Ibis court oil the same brief. The records will be referred to by their respective numbers “58” and “54.” Tlie clearest copies of the documents used in the trials below are contained in '“Record 23,” and the court is requested to refer to the original Spanish documents, as the translations are very defective. Tlie facts and documents in both cases are, by agreement, to be used in either or bol.li indifferently. with such exceptions as will he presented in tlie argument. Tlie records are imperfect, and each will he used in either case to supply any deficiency in tlie other, the great object before this court being to try the relative strength of the tilles upon all tlieir merits, with a view to an end of litigation between the parties.
    In “Record 54,” T. J. Chambers was the plaintiff below and is the appellee in this court, and lie claims under a grant and title, of possession made to Jose Manuel Bangs, the grantee, by tlie Governor of the. State of Coalmila and Texas on tiie 21st day of May, Í830, and the. title, of possession by Trail. Lewis, as special commissioner for that Slate, on Hie 24lh day of October, 1834.
    II. E. Hill and M. S. Patton wore interveuors below and are tlie only parties prosecuting tlie appeal here, the oilier parties defendant having acquiesced in tlie judgment below. Tlie interveuors IIU.1 and Patton claim‘under a title, issued in‘favor of Benjamin Tenniil on tlie 1st day of June, 1S35, by Talbot Chambers as commissioner for the State, of Coalmila and Texas. Tiie land was never settled or occupied by Tenniil or any claimant under him.
    In “Record 53 ” James it. Jenkins was the plaintiff below and is the appellant here; lie claims under a title made in favor of James Haggard on tlie 21st day of May, 1835, by Talbot Chambers as commissioner for tiie State of Coa-huila and Texas.
    T. J. Chambers was an intervenor below and was really tlie only party having any interest in tlie defense. He is the appellee here, and lie claims, as in the other case, under a grant and title of possession made to Jose Manuel Bangs, the grain; by the Governor of (he State of Coalmila and Texas on tlie 21st of May, 1S30, and the title of possession by Ira R. Lewis as special commissioner for that State on tile 2-ÍXh day of October, 1834. Tlie eoudi-tions of payment of the government (lues and occupation aud cultivation of the land being the only ones appertaining- to the Bangs grant, were all duly performed within the time prescribed by the law. These facts were not contested in either suit. The benefit of ‘'settlement” is claimed for Haggard as early as 1831 or 1832, but on the other side it is charged and shown that the settlement was illegal and without authority; that lie was a settler in bad faith, knowing the existence of the other claim, and that he abandoned the land in 1832 ¡ind never returned to it, and that he never brought his family to the country. These are the only circumstances that distinguish the ease from the other.
    In the progress of the argument, for convenience, one side of the case will he frequently referred to as the ‘"Bangs claiiiiant ” and the other as tlic “Talbot “Chamber; claimants.” Tims it will appear tbal in “Becord 54” tlic Bangs claimant was the plaintiff and tlic Talbol Chambers claimants were hitervenors, and flint in “Becord 53 ” the Talbot, Chambers claimant was the plaintiff and the Bangs claimant ivas intervenor, and that in both the trials below there was a verdict and judgment in favor of the Bangs claimant.
    Some, exceptions were taken below to the mesne conveyances of the Talbot Chambers claimants; but although it is believed that those exceptions might be sustained, they are waived now in order that the battle may be fought here exclusively and fairly between the titles emanating from tlic sovereignty, the Bangs tille on one side and the Talbot Chambers titles, or titles issued by Talbot. Chambers as commissioner, on the other. In each ease it behooves each party to demolish the title of Ills adversary; but although cither should achieve this," still lie must sustain his own title or fall with it.
    In this contest, may it please the court, I shall endeavor to have fair play for the Bangs title ; aud although I expect aud hope to see a somewhat summary •death inilicled upon the Talbot Chambers titles, I always feel a deep sympathy for (lie old titles of the, country even in the hands of my adversaries, and therefore endeavor to take care that the moral blows are given in a spirit ■of chivalry and fairness.
    A grant made in contravention of law or without authority of law is void. (3 U.‘S. Cond. B., 356; 13 Pet. B., 498 ; G U. S. Coucl. B., 356.)
    The Talbot Chambers titles were issued not only without authority of law but in direct violation of the law and in defiance of several orders of the highest granting power. Elguizabal, who appointed file eommmissioner Talbot Chambers, had no authority under the. constitution and laws of the State of Coalmila and Texas to make the appoint ment. He was a colonel of the regular army of 'Mexico, who had deposed the constitutional Governor of the State arid usurped by force the authority of Governor for a few weeks, and during that time made* the appointment. It will avail nothing to say that lie was Governor de facto. There was at the. same time another Governor de facto and Secretary of State. The licentiate, Jose Maria Goribar was then acting aud claiming to be Governor of the State of Coalmila and Texas, and Jose Maria de Aquirre was his Secretary of State. Both Governors defacto with their respective Secretaries of State were usurpers and had no authority tinder the constitution and the laws of the State. The highest judicial authority of Texas declared them to bo usurpers and refused to recognize either of them as Governor. The const it tit ional Governor, Francisco Vidaurr iy Villasenor, was deposed by force on the 30th day of August, 1834, and from that clay the executive power of tlic State of Coalmila and Texas was no more forever. From that day until the flnal separation of Texas all was anarchy; usurpation, disorder, aud confusion. The constitution of the State was trodden down by usurpation and never again revived.
    These historical and legislative facts will be sufficiently established for present purposes by a critical examination of the book falsely palmed upon the people of Texas as the “ laws of Coahuila and Texas,” from page 277 to the end of the book, in conjunction with the collection of original authentic documents now presented to this court. (See collection.) At present this subject will be discussed no further. The case before the court does not require it. On some more appropriate occasion, when tiro decision of this court must depend upon the political changes of those memorable and interesting- limes, they will be investigated and discussed more thoroughly and elaborately before this court, and many more interesting documents shall bo produced for their elucidation. Sufficient has been said to place this honorable court upon its guard. To recognize the acts of either of llie usurpers, G-oribar or Elguizabal, would be attended with dangerous consequences to the State of Texas.
    Supposing Elguizabal’s authority as Governor to have been valid, still he had no power under the laws of the State to make such an appointment as that under which the Talbot Chambers' titles were issued. The commission of Talbot Chambers (if the simple order under which he acted can be considered a commission) expressly prohibited him from regarding the colonists to whom he was to issue titles as belonging to Milam’s contract of colonization. That contract, having been entered into on the 12th of January, 182G, expired by limitation of time and was forfeited by Milam on the 12th of January, 1832, six years after its date. Milam never introduced a single colonist into the country within the term limited by law, and at the expiration of that term the Governor of the State, Letona, in obedience to articles 10 and 11 of decree 128 “Laws Coahuila and Texas, p. 14G,” published to the world that the contract was forfeited by a non-performance on the part of the empresario, and (hat the land had again become a part of the vacant domain of the State. Elgnizabal then very properly prohibited the commissioner Talbot Chambers from issuing titles to any persons as colonists of Milam’s colony. The proof is clear and explicit that neither Haggard nor Tennill came to the country as Milam’s colonists; “they came on their own lioolc.” It follows incontestibly, then, that the titles issued to these parties by Talbot Chambers in 1835 as colonists of Milam’s colony were not only without authority of law but in direct violation of the law and in disobedience of the declarations and orders of two Governors, the highest granting power, and of the express terms of the commission itself under which he acted. But if such a construction can be given to the Talbot Chambers titles as to enable them to serve as titles to the parties under the lGtli article of the law of colonization of 1825 as independent colonists, then it is insisted that the Governor of the State had no authority on the 31st of October, 1834, linden- the laws of the State to confer such a commission as that made in favor of Talbot Chambers, at least to put any colouist in possession of land and issue titles to them except such as had secured to themselves the benefits of the law of colonization of 1825 prior to its repeal by a compliance with its preliminary requirements. Not having come to the country under any empresario contract, Haggard and Tennill could only have entitled themselves to the benefits of that law in the manner pointed out in articles 1, 2, 3, 4, 16, and 18. The simple act of coming to the country and being in it entitled them to nothing. Many persons thus came in the pursuit of various objects, without the slightest intention of becoming colonists or of identifying themselves with the country, and the government considered them as visitors and transient persons until they manifested their intention to take the benefit of the law of colonization in the maimer prescribed by that law. No person was permitted to appropriate land by his own act without applying to some lawful authority. (Decree No. 13 ; art. 9, Laws Coahuila and Texas, p. 12.) 1-Iis compliance with the provisions of the law already referred to would have operated as a contract with the State. The State had given its consent in the law and by the law, and a compliance on the part of an immigrant with the provisions referred to would have been consent given on liis part and would have consummated a contract of colonization with the State, which might have survived a repeal of the law under which it was made, and come under the provisions of the 10th article of (.lie law of colonization of 1832, (Laws Ooa-huila and Texas, p. 191.) and of the 30th article of the land law of 1834. (Laws C. & T., p. 231.) But Haggard'and Tennill never presented themselves to any legal authority to claim land in the country until 1833, when they ipeeived-titles from Talbot Chambers. In the meantime the law of 1S23 was repealed by that of 1832, and that of 1832 by that of 1834, so that they had lost the benefits of botli by declining or failing to comply with their preliminary requirements. Tims they had no contracts pending in the State in 1833, when they got their tilles; the laws had been repealed long' before they sought the, benefits of them, and their titles were without the authority of law. The Governor himself could not have granted them lands, much less could he give power to another to issue such grants in their favor.
    But if it had not been too late in 1835 for Haggard and Tennill to come under the contract of the empresario Milam, still IVilliamson could not have acted as the agent of the empresario for the purpose of receiving and admitting colonists ; this was a high personal trust, involving a delicate responsibility, and could not be delegated to another without the consent and previous approbation of the government. (Art. 1 and 2, Instructions Com. Laws C. & T\, p. 70.)
    But Haggard never could have obtained a league of land under the law of colonization of 1825, whatever might have been ins diligence, without bringing’ his family to the country, and the proof shows that he never brought it and that he never intended to bring it. He therefore obtained his tille in fraud of the law. (Holliman v. Peebles, 1 Tex. It., 073; Horton v. Brown, 2 Tex. It.r 780.)
    Haggard was a squatter in bad faith, with notice of the-existence of the adverse' title for tlie land. He evidently never expected to hold the land; he abandoned it soon after its settlement and never returned to it. In 1835, seeing an opportunity to make a speculation, he surreptitiously obtained a title and immediately sold it.
    The title of Jose Manuel Bangs, under which the defendant claims the land, is perfect in form, completely in accordance with the law, and highly meritorious in its inducements. It stands firmly and impreguably on the articles 10, 36, 17, and 18 of the law of colonization of the 24th March, 1825; it was confirmed by the article 16 of the law of colonization of the 28th of April, 1S32; and it was again confirmed by the land law of the 26th of March, 1834, articles 23, 24, and 30. (Laws C. &. T., p. 15, 189, and 247.)
    Bangs was not regarded or treated as a foreign immigrant colonist. He was a Mexican citizen by virtue of important patriotic services rendered in the first establishment of the'liberties and independence of the country. He had illuminated their path onward to success by the light of the press, and aided in openiugit, sword in hand, suffering more than death in the cause he liad espoused. And he was present in the country at the adoption of the Constitution of the United Mexican States and that of the State of Coalmila and Texas, and by both ho was recognized as a Mexican citizen, entitled to all the rights and privileges of' a native save those specially excepted. He was also a citizen by an honorary act of the Congress of Coalmila and Texas. (Const. U. M. S., art. —; Const* C. & T., art. 17, IS; Laws C. & T., p. 139, decree Ho. 112 ; 1 Mexican Sala, p. — ; 5 Mexican Pobrero, p. — .)
    Services rendered to the country were always wisely and firstly held, throughout the whole Spanish and Mexican legislation, as the highest consideration and inducement for grants of laud, and they entitled the meritorious parties to a preference over all others. (Colonization Law of 1823, art. 18; Col. Law of the State of C. & T. of 1825, art. 10; Col. Law of C. & T. of 1832, art. 26; Col. Law of the State of Tamaulipas of 1836, art. 13 and 25.)
    The jurisdiction and authority of the Governor to make the augmentation grant in favor of Bangs is clear and explicit in the law; and the ayunta-miento of Leona Vicario and the Governor of the State gave this indisputable •construction to it and acted upon it. (Col. Law. C. &. T., art. 17.) This action was in strict conformity with the law; it needs no legal presumption to prop it. Although Bangs established his claims oii the ground of patriotic services by three distinct documents, as the grant itself shows, taken in connection with his petition, the. Governor, in order to comply fully with the forms of the law, referred the application to the ayuntamiento of .Leona Vicario, (he applicant’s place of residence, and took its report on the subject;. The ayuntamiento in its report very properly coniines itself to the subjects committed to it by the 17th article of the laws referred to by the Governor’s order of reference : the family, industry and- activity of ilie applicant; and as the industry and activity of the applicant were exercised under the direction and inspection of the Governor himself, the ayuntamiento very properly and with delicate respect, well understood and almost always practiced by Mexican authorities towards one another, refers him to the evidence of his personal knowledge upon these particulars, and declares that it appertains to him to determine upon them. The attention of the court is called particularly to the original Spanish language of the report, as the translation in the records is wholly'wrong. A true translation is here given:
    “ Most Excellent Sir : The, ayuntamiento of this city, in compl lance with “the superior decree of your Excellency of the 27th of January last to the “ representation of the citizen Jose Manned Bangs, upon the subject of lands “being given (o him in the department of Bexar, says that Bangs is num-ied “ to a lady of his country, North America; it is known that he lias'two children “and that his public conduct and that of liis wife is good and orderly, without “ever having given room for anything to be said' to injure them in public “opinion; aiul that as lie discharges liis office of printer under the. direction “and inspection of your Excellency, it appertains to the supreme “government of the State to determine whether lie is entitled to what he “solicits.”
    It was as much the policy of the law to promote and foster the establishment of the arts and mechanical industry in the new settlements as agriculture and stock-raising; and no mechanical art could have been more important Ilian that of printing; and surely no artizan could have been more worthy of being preferred and favored over other persons in the distribution of the public lands of the State than one who was exercising liis art under the personal direction and inspection of the government itselfj and who had contributed with many sufferings, and the implements of liis art in one hand and the sword in the other, to (lie establishment of the liberties and independence of the country. (Law of Col. of 1825, preamablc and art. 33, 3G, 10; Instruc. to Com. of 1827, art. 15.)
    To report information to the Governor with regard to the familjn industry, and activity of applicants for augmentation grants of laud belonged to the respective ayuntamientos and commissioners; to determine the amount and make the grant appertained to the. Governor, and this was the uniform pract ice. The information with regard (o the family, industry, and activity of applicants was properly derived from the ayuntamientos and commissioners; and that with regard to their patriotic services and claims of this nature from any source satisfactory to the Governor, who was the granting power. The jurisdiction, tlie power to grant and to augment, was committed by the law and the practice under it to the discretion of the Governor; and this discretion was exercised upon all the information before him, derived from whatever source, and having ■exercised that discretionary power, his judgment and decision could not, certainly cannot now, be questioned. That the granting and augmenting power was committed to liis jurisdiction by the law is quite too clear to be disputed; and the information and reasons which determined his discretion cannot now he fully known or inquired into. “ It is a universal principle that where power “ or jurisdict ion is delegated to any public officer or tribunal over a snb- “ ject-matter. and its exercise' is confided" to his or their discretion, the acts so “ done, are binding as to the subject-matter, and individual rights will not be “ disturbed collaterally for anything done by the exercise of that discretion ‘'•within tile authority and power conferred. The only question which can “ arise, between an individual claiming a right under the acts done and the pub- “ lie or any person denying their validity are power in the officer and fraud in “ the party. All other questions are settled by the decision made or the act “ done by the. tribunal or officer, whether executive, legislative, judicial, or “ special,’ unless an appeal is provided for or other revision by some appellant “ or supervisionary power is prescribed by law.” (United States v. Arredondo et ah, (> Peters, 091; Strother v. Lucas, 12 Peters, 410; De Lassus v. The United States, 9 Peters, 117.)
    Leona Vicario was the place of residence of the applicant Bangs; his petition was therefore properly referred to the. ayuntamiento of that city'. To have referred it to a remote ayuntamiento possessing no information upon the subject would have been an absurdity. And it could not have been referred to the .ayuntamiento where the land was which Bangs had selected, for the record shows that none was established until 18114; and it could not have been referred to the. commissioner of the colony, for the record also shows that none was appointed until 1834. But the Governor himself decided upon the proper ayun-tamiento in making the reference, and settled the question. The law did not require, that, the report-or proof should ho given with the grant. The report of the ayuntamiento was indorsed upon the petition, and was copied with it by the Secret ary of State under the order to give Bangs a copy of his petition with the grant,; the petition contained the designation of the land. The other evidence referred to by Bangs in his petition with regard to his claims for services, consist ing of three separate documents, and being voluminous, was not ■copied with the grant. It was not necessary. (l’Tex. B., 309, Sutherland d at. v. De. Leon; 10 Peters, 474, in Vorliies v. The Bank of the U. S.; 2 Howard, 3-13. in Grignou et al. v. Astor et at.; 2 Peters, 1G6; 1 Peters, 340; 11 Peters, 473 ; 10 Peters, 19G ; 14 Peters, 334; 1G Peters, 22S.)
    The record shows that the land was surveyed for Bangs as early as 1832 by Thomas 11. Corden, and the special commissioner, Lewis, after authorizing and approving the same surveyor, upon a re-examination had upon the land of the survey already made, finding it perfectly accurate, approved it. put the party in possession of the land, and, in obedience to (lie superior order of the cxec-utive, issued the. title of possession. The commissioner declares in the title that the. citizen Thos. II. Borden was a “scientific and approved or authorized surveyor.” (Tlio translation of this part of the title, is wrong; see original, Bcoord ¡71, p. 78.) One of the witnesses stated that the Bangs survey was run oil by Coleman at an early day, at whose instance it does not appear; and it was also run for Bangs by "Robert Lockhart soon after the grant was made by the. Governor, but no proof was deemed to be necessary upon this subject. It does not appear clearly from the title by what aulhorif y (ho first- survey by Borden in 1832 was made, but the presumption arises that it was made by order of the respective alcalde, as authority was given to that officer in the grant to put Bangs in possession of the land; and the special commissioner, Lewis, who was afterwards appointed, declares in the tille that Borden was a “scientific and “ approved surveyor.” Nor does it appear certainly from the title whether the special commissioner, Lewis, caused the survey (o he made at the time lie issued the title of possession, or simply adopted tlie one made in 1832 after satisfying himself that it was correct, but the presumption of law arises that the special ■commissioner had satisfactory evidence that the first, survey was made by proper authority, or that he caused it to be re-examined, and finding it to be correct, approved and adopted it. It matters not which presumption we rely upon -r either is sufficient to sustain the survey, and both would be in accordance with the facts of the case. But it was not considered necessary to produce any proof except the title itself upon these preliminary proceedings, except that the survey was correctly and faithfully made. These preliminary proceedings of the survey having' been merged and consummated into a title or patent, cannot now be inquired into in this'"collateral way, at least it cannot be done without the production of positive proof of fraud and illegality in the survey, and none such was or could have been produced on the trial; on the contrary, the proof on the trial sustained the survey, showing it io have been made with perfect accuracy and well-defined limits properly marked.
    If the principle should now be established by this court that under the colonization laws of Coalmila and Texas it was necessary that the surveys should have been made under the personal inspection of the commissioners at the lime the titles were issued, or even expressly for the parties who received the laud, nearly all of the old titles of the country would fall beneath its decision. It would be easy to prove that very few of the surveys of Austin’s colonies were made under either the orders or inspection of the commissioners or for the parties who received the titles for the lands. They were made by surveyors approved or favored by the empresarios or chosen by the colonists, were returned into the office of some empresario or commissioner, and were afterwards adopted by the commissioners according to the selections made by the parties interested, and titles were issued upon them: But no apprehension is felt that this court will make a decision so destructive to the best rights of the pioneers of Texas, so variant from the equitable and conservative spirit of the laws at that time and the practice of the public authorities under those laws, and so little in accordance with the intimations already made by this court', and with the wise and just decisions of the courts of the United States on analogous subjects. This court has already said upon the subject of such surveys of land, “This is believed to have been a very general practice by the survey- “ ors under the empresarios. If it had been surveyed before the order of “ survey the surveyor could certainly with propriety swear to the correctness “ of his field notes as well and with as much truth as if he had waited to receive “the order before he made the survey.” (.Tones v. Menard, 1 Tex. 11., 789y Polk’s Lessee v. Wendal, 3 Cr. 11. S. O. U. S., 323, 324.) “The laws for the “ disposal of public lands provide many guards to secure the regularity of ‘.‘grants, to protect the incipient rights of individuals, and also to protect the “ Slate from imposition. Officers are appointed to superintend the business, “and rules are framed prescribing their duties. These rules are in general “ directory, and when all the proceedings are completed by a patent issued by “ the authority of the State a compliance with these rules is presupposed. That “ every prerequisite has been performed is an inference properly deducible and “ which every man has a rigid; to draw from the existence of the grant itself. “It would therefore be extremely unreasonable to avoid a grant in any court “ for irregularities in the conduct of those who are appointed by the govern- “ ment to supervise the progressive course of a title from its commencement to “its completion in a patent.” The original grant to Bangs is itself locative and descriptive when taken in connection with his petition, which forms part of it. Three distinct, notorious objects are called for : first, “ the old San Au- “ tonio road above itsecond, “ tiro western margin of - the Colorado river and, third, “in Milam’s colony;” and if the title of possession had been made on these calls with terms snfllr.ic.ntly descriptive to be run out by a surveyor and rendered certain, it would have been a good grant to hold the land. “ The “want of a survey does not affect the right of the parly to the land granted.” (13 Peters, 134; 15 Peters, 22-1; 3 Coucb.R. S. C. U. S., 363.)
    But it is unnecessary to discuss this doctrine here. The Bangs survey was perfect, and the locative and descriptive calls in the grant are sufficiently clear to gire the title oí possession issued in 1834 by tlie special commissioner,, Lewis, ¡i relation back not only to the dale oí the survey made in 1S32, but to the date o£ the original grant on the 21sfc o£ Slay, 1830. Great stress lias been laid by opposing counsel upon tlie division of the grant and its location in two distinct places, and several cases were ciled to sustain his position, but hone of them were applicable to the case now under discussion before this court. Iu those cases (he grants wore confined to specific locations. But Bangs, although his grant was for a designated place, was expressly permitted to make selections anywhere, wilhin the vacant limits oí the Slate .if he could find lands which suited him better than the place lie designated in his petition. The law nowhere prohibited the division of a grant, and sound policy aud the custom of the, country warranted such division’. This was also the custom in Louisiana, Florida, and Missouri when the grant was not confined to any designated locality, and a settlement upon any one of tlie divisions was considered a settlement; of the whole, grant. (United States v. Sibbald, 10 l’eters, 321; United States v. Clark's Heirs, 10 Peters, 228 ; Digest S. C. W. S., 302.)
    Great stress has also been laid upon the repeal of the law under which the Bangs grant was made prior to its completion by tlie title of possession. But this, if fatal to the Bangs title. I have already shown would be still more so .to tlie Talbot Chambers claims. Bangs claims under the law of colonization of 1825, and so do tlie Talbot Chambers claimants. But Bangs claims the land on tlie 20th January, 1830, and received his original grant on the 21st; of May, 1S30. Haggard made an unauthorized and temporary settlement in 1831 and 1832, bnt never identified himself with (lie country by presenting himself before, any lawful authority aud claiming tlie land until the, 21st of May, 1835. The proof is positive that Haggard did not come, as one of Milam’s col-isls, bnt ‘‘on his own book;” if, therefore, he was entitled to anything under the. law of 1S25 it was by virtue of articles 1, 2, 3, 4,16, aud 18. But he never complied with any of the requirements of these provisions. Tlie law of 1825 was repealed by that of the 28th of April, 1832, which provided iu its 16th article that such grants as that of Bangs should bo carried out according to the laws under which they were made, but it contained no provisions for such persons as Haggard and Tennill, unless it may be found in articles IS and 24, and they never complied with tlie requirements contained in them. In 1833 the 'Governor consulted the council of State upon the subject of grants made under tlie law of 1825, aud its decision was that they should be carried out according to t.lie provisions of the laws under which they wore made. (Collection old Doc., j). —.) And the public records of tlie country show that the uniform ■action of all the functionaries of tlie State of Coaliuila and Texas lias been in strict accordance with this decision. Tlie law of 1832 was repealed by that of the 26th of March, 1834, which also contains a provision iu article 30 that the grants, or, wliat is the same thing, tlie contracts then pending, should be carried out according to the law of 1825. All contracts, grants, and concessions made under the law of colonization of 1825 were contracts of colonization.
    Those made with empresarios contemplated a number of persons to be introduced into tlie country at tlie expense of the empresario; those made with individuals under articles 1,2, 3,4,16,17, IS, and 24 of that law looked to the individual alone with whom tlie contract of tlie grant or concession was made. These classes of colonists were regarded with favor by the law. Tlie hardy and hide-' pendent immigrant who introduced himself and family into the country at Ills •own expense was rewarded according- to tlie 16th article of the law by an additional labor, and by tlie 10th article Mexican citizens were preferred over all others, and by art. 10 and 17 the amounts granted to tlie claimants indicated might be augmented by the Governor as high as eleven leagues, according to the family,'industry, activity, and patriotic services.of tlie party. It catmol, thou, be rationally supposed that the Congress of Coaliuila and Texas intended to neglect and abandon these favored classes of colonists in the 30th article of the law of the 20th of March, 1834, where it is provided that (he contracts of colonization already made shall be carried out in accordance with (he colonization law of 1S25. it cannot be supposed that its only object, was to protect the speculating empresarios and the helpless and worthless immigrants who had neither the means nor the energy necessary to bring them lo the country without having their expenses paid'by the empresario, leaving wholly unprovided for a majority of the, new colonists of Texas and the very classes that had been previously regarded by the law with favor, for it is a fact that a large majority of the coionists then in Texas belonged to those favored classes, being enterprising, independent immigrants, who had borne their own expenses to the country. Even those established in Austin’s colonies belonged chiefly to those classes. (Houston v. Perry, 2 Tex. R., 40, Williams’ testimony.)
    It is therefore a fair construction of the law that it was iutended to cover and provide for all contracts made and pending under the law of colonization of 1825, whether with empresarios regarding families introduced and to be inlro-duced by them or with individual'independent colonists, regarding only themselves and their own families. This was, in fact, the only rational and just construction which it would bear, and accordingly this wiis the construction given to it by all the public authorities of the Slate of Coahuila and Texas, from the lowest to the highest. The Governor Vidaurri gave the construction ro it expressly in conferring the appointment of special commissioner on Lewis to issue the title of possession to Bangs. The Governor Elguizabel (the Talbot Chambers Governor) gave this construction to it expressly in conferring the appointment of commissioner on Talbot Chambers, declaring explicitly at the same time that it was not for the purpose of granting tilles to empresario colonists but to independent colonists under the 1st article of the colonization law of 1825. And the records of the. country show that this was the uniform construction given to the law in all analogous eases by the highest functionaries of the State of Coahuila and Texas. And this construction was in perfect accordance with a general principle, of the Spanish law then in force. If the repealing law had contained no provision for carrying out the grants, concessions, or contracts made under the, law repealed, according to iis provisions, still this just construction would have hocn given to it under that principle. “La ley no dispone sino pava lo futuro, y no tiene, efecto relvoae.livo, “ pues de otro modo no habría libertad, ni seguridad, ni propriedad, respecto “de que una ley nueva podría venir a quitar a los ciudadanos tan sagrados “ dircchos : ‘Leges et constituciones futnris ce.rtum est dare, formam nogotiis; “ non ad facía pretérita revocare.’ Asi es que si muere un proprietarib bajo “ el imperio de una ley que llamaba, a tal pariente para sucederle, este pariente “ recogerá la herencia, aunque una ley nueva promulgada p>oco tiempo después, “ del fallecimiento llame a otro pariente distinto. "Asi es también que si se “ cstablesce tina ley erigiendo en delito una acción que antes no lo era. no debe “ ser castigado el que la cometió antes de publicarse la nueva ley. A.-imismo “ debe decidirse por la antigua ley, y no por la nueva, el contrato qu se, celebro “ cuando aquella regia aunque, se, ponga la demanda en tiempo de la segunda.” (Escriche Diccionario de Legis. Palabra, Ley, p. 373.)
    All grants and concessions made under the law of colonization of 1825 were con-tractsbf compraventa. The contract of compra venta was perfected by the simple consent of the parties. If the case was one in which the law required that the consent should he given in writing either party could repent until this was done, but after the consent was given in writing neither party could repent or revoke the contract.. (1 Sala Lib., 11, Tit. X, 1, 2, 3, 4, and 5.) In the, grant to Bangs his consent to the contract of compra venta or pnrclia.se of the land was given in his petition, and that of the government in the concession. The consent of each party having been given in writing the contract of colonization for the land designated was perfect, involving mutual obligations, and neither con'd repent or revoke it. The obligations of the government were precedent, and thoseof Bangs were subsequent; those of the government were to cause the land to tie surveyed, to put Bangs in the possession of it, to have the title of possession issued to him by its proper officer, and to give to him all that protection due from a government to its citizens, and those of Bangs were to cause tiie land to lie occupied and cultivated amt the stipulated price to be paid to the State within the time prescribed by law. The issuing of the grant or concession by the government on the 21st of May, 1830, completed a perfect contract of colonization for the land between the parties. The consent of each liad been given in writing, and the issuing of the title of possession on the 24th clay of October. 183!, made a perfect title in the property; the fee, el dominio, had passed to Bangs. Bnt if Baugs had failed to perform the obligations devolving upon him from the original contract consummated oil the 21st of May, 1830, after the government liad discharged its obligation in 1834 of issuing the title of possession, the government might, provided it still had continued to give to him the promised protection, have proceeded against him judicially, (not otherwise,) either to compel him to perform the obligations he had taken upon him in tiie original contract, or to compel him to surrender hack tiie fee, el do-minio. in the land, as the government might elect. But it could not elect to do both.
    Having', (hen, shown the nature of the contract entered into between the parties, let. us return to the question upon the repeal of the law under which it was made. It lias been shown that the contract of colonization for the laud was perf"et'‘d on tiie 21st day of May, 1830; the consent of each of the parties, of Bangs and of tiie government, luid been given in writing, and that neither party could afterwards repent or revoke the contract; but the law of colonization of 1825 entered into and formed a part of the contract, and so far as it regarded that contract it could not he revoked or repealed. The repeal looked to the future, not to the past; no further contracts were to be made under it, but those already made were to be determined and carried out according' to its,provisions. To this extent the. Congress of Coahuila and Texas, by article 10 of tiie law of colonization of 1832. and articles 23, 24, and 30 of the'land law of 1834, showed conclusively that it did not intend to repeal it ; and, in the place of the contracts being revoked by a repeal of the law under which it was made, the grant lias received a direct legislative confirmation by tiie. provisions above referred to of the repealing laws. And this construction of those provisions of the laws is also in strict accordance with another general principle of both Spanish and American law. I give the Spanish authorities ; the American are already familiar to the court:
    “ Kn las cosas dudosas se dehe atender a lo mas verosímil; y cuando la duda “oceurra en alguna palabra, se debe interpretar; contra el que la dixo obscura- “ mente.” (Siete Partidas, p. 7, T. 33, 1. 2; 2 Sala, Bib. Ill, Tit. XVII, sec. 1) ‘‘Bus palabras obscuras de los privilegios se deben inte,rpretar largamente, chi-ndándose siempre que concuerden con la voluntad del eoncedeute.” (Siete Partidas, p. 7, Tit. 34, 1. 2S.) “Cuya doctrina, en cuanto a que deben inter- “ pintarse latamente, la entienden los autores, cuando se trata de darles inter-‘•pretaeion hacia el que les concedió: pero contra los particulares a quienes, “perjudica, son de interpretación estrecha, o deben restringirse; como lo pru-“elia Uutierez, Lib. 3, prac. quest. 22, n. 10; y Lib. 4, quest. 11, n. 2.” (Sala Lib., Til. XVIII, sec. 23.) "Whenever the terms of legislation will bear different interpretations, such construction shall be given to them as shall be most conformable, to natural justice and the previous views of the granting power, and most liberal to the party to be benefited.
    Guided by those just and liberal principles, the highest functionaries of the Stale of Coahuila and Texas held and construed
    the provisions con-tamed in IGtli article of the colonization law of 1832, and the 23d, 24th and 30th articles of the laud law of 1834-, to be a legislative confirmation of such grants as the one made to Bangs, and perfected them accordingly. The Supreme Court of tlie United States lias said that “in cases depending on the “statutes of a State, and more especially in those respecting titles to land, this “court adopts the construction of the State where tlie construction is settled “and can be ascertained.” (Polk’s Lessee v. Wendal et al., 3 Peters, Coud. R., 323.) The construction given to the laws of a State by its own functionaries is never questioned by the courts of another country. (G Peters, G91; •12 Peters, 410; 9 Peters, 117; 9 Cranch, 87; G Wheaton, 119 ; 2 Cranch, 358 ; 1 Coud. R., S. C. U. S., 421; G Cranch, 27; 4 Howard, 37 ; 3 Cranch, 1; 2 Coud. R., S. C. U. S., 308; 1 Comí. R., S. C. U. S., 4G; 5 Peters, 2G4; 13 Peters, 519; I-Ioleombe Dig., S. C. ü. S., 248, 249.)
    The conditions of the Bangs grant were all performed to tiio letter. This was distinctly alleged in tlie petition, and tlie proof f ully sustained the allegations. The grant is therefore absolute. (United States v. Clark, 9 Peters, 1G8.) The receipts presented on tlie trial show that tlie payments of tlie government dues were all fully made prior to the expiration of the term limited by tlie law and the grant, aud the proof was full, aud that the land was occupied aud cultivated within tlie legal term, and these conditions, thus fulfilled, were tlie only ones attached to the grant. The proof shows that Mrs. Burnett, as early as the beginning of tlie year 1840, occupied the land, cultivated twenty acres of it, made'valuable improvements on it," and held actual possession of it for and in behalf of tlie Bangs claimant, who paid her for the same; and that such actual possession was so continued in his behalf by Mrs. Burleson down to the time of the institution of this suit. These facts were not controverted on the trials below, but some exceptions have been taken to their effect. It has been contended that the laud ought to have been cultivated aud occupied by Bangs himself. The record shows that Bangs was a resident citizen of the country, m tlie employment of the government, and the Constitution of the Republic of Texas (Geni. Prov. Sec. 10) exonerated him from the obligation (if any there ever was) of occupying the laud himself. But no person, at that time at least, ever supposed that lie could not have his land cultivated aud occupied by his agents and servants as well as by himself. Tills was the practice in very many iustances-iu Texas, and this lias been held to be sufficient by the Supreme Court of tlie United States in cases where the law required that the grantee should be an “ actual settler ” .to enable him to hold the land. (Hiclcie et al. v. Slarke et al., 1 Peters, 97.) And the general principle of the Spanish law that “Lo que uno hace por otro es lo mismo que si “lo hiciere por si,” is conclusive upon the subject. (2 Sala, Lib. Ill, Tit. XVIII, sec. G2.)
    It is therefore considered unnecessary to adduce arguments and authorities •to sustain the charge of the district judge upon the subject of the performance, •of tlie conditions, to the effect that they could not be inquired into in a collateral proceeding like the trial below. Por although it is believed that the charge •was correct in principle and that abundant authorities and conclusive arguments might be presented to sustain it, yet as it was volunteered by the judge, ■and wholly unnecessary under the proof presented of a complete performance of tlie conditions of the grant, if this court should consider it erroneous it ■would not reverse the judgment and set aside the verdict of the jury rendered upon evidence so conclusive. It is evident that the charge could have had no effect or influence with tlie jury in making up their verdict. It was rendered upon proof of performance of conditions'and not upon the charge. “It can “ therefore afford no cause for reversing tlie judgment. A verdict will not be “ set aside for misdirection of the jijdge when it is manifest that the party complaining sustained no injury from tlie misdirection.” (Mercer v. Hall, Adm'x, 2 Tex. 1?., 207; 23 Wend. R., 79; Chandler v. The State, 2 Tex. R., 305 ; llolmau o. Britton, 2 Tex. R., 297.)
    The laws oí limitation were duly pleaded by the Bangs claimant; and it has already been shown that it was proven on the trial that he had hold actual possession oí I he land covered by his title (though not of the, part claimed by the Talbot Chambers titles) for more than live years, with his title duly recorded in the respective county. No actual possession was shown for the Talbot Chamber^ claimants, with titles duly recorded in the county. This is conclusive in behalf of f he Bang's claimant, according- to the decisions of this court. (Jones v. Menard, 1 Tex. R., 771.)
    The Bangs .grant being- thus shown to be a perfect title, issued in complete accordance'wii.li the law, based upon inducements highly meritorious, and made absolute, by a full performance of all the conditions, the Ilag-g-ard claimants, even if they should achieve the impossibility of having t heir title considered valid by this court, must still rely upon the forlorn hope of establishing' the position assumed by t-lieir counsel that their title relates back to the time of the pretended settlement of I-Iaggard. But even if they should succeed in sustaining this doctrine in the case of Haggard, it would apply with still greater force to that of Bangs. The record shows that Haggard squatted on the land in 1831 or 1S32, and that he had notice of the existence of the adverse grant; that he abandoned the land in 1832 and never returned, and that his title is dated on the 21st day of May, 1835. It also shows that Bangs applied for the land on the 20th of January, 1830; that it was granted to him by the government on the 21st of May, 1830, and that the title of possession was issued by the special commissioner on the 2.4th of October, 1834. So that giving- Haggard the full benefit of his settlement and the doctrine of relation, they will still fail to sustain the claim ; for the Bangs claim is the oldest in every point of view, aud Haggard liad notice of its existence.
    It inis already been shown that the contract of Bangs with [226] the government for that specific land, (for he designates it in his original petition) was perfect on the 21st of May, 1830, for the consent of both had been given in writing, aud could not be revoked by either without the-consent of the other, and tlie title was perfect on the 24th of October, 1834. the government for that specific land, (for he designates it in his original petition) was perfect on the 21st of May, 1830, for the consent of both had been given in writing, aud could not be revoked by either without the-consent of the other, and tlie title was perfect on the 24th of October, 1834.
    But the doctrines of relation advanced by the counsel for the Haggard claim and the casos cited to sustain them are wholly inapplicable to the one now before this court. These doctrinos depend upon peculiar legislation and customs, and are as variant as the peculiar legislation and customs of the various States in which they originated. They call have uo bearing upon the legislation of Coahuila aud Texas, scarcely by analogy.
    There was no contract between Haggard and the government before the 21st -of May, 1835, if at all. His settlement, as lie made it was not only not authorized by the laws of Coahuila and Texas, but it was directly in contravention of those laws, (haws Coahuila and Texas, p. 15; Law Col. 1825, arts. 1, 2, 3, 4, 10, and 18, p. 191; Law. Col. 1832, arts. 18 aud 24, and p. 11; Duties Pol. Chief, art. 9.) It is no excuse to say that the ayuntamiento of Mina was not organized until 1S34; he did not then present himself before it to claim the laud as the law required or in any other way, nor had lie ever previously claimed it in any of the mother municipalities from which that of Mina was carved. He never set. up a claim to it before any officer of the law before tire 21st of May, 1835, if then; nor was it ever uniil then set off by metes aud bounds. But if the Bangs claim had been oveii younger than the Haggard claim and Bangs had set it up at any time prior to the consummation of the Haggard title, it must have prevailed by virtue of his being a Mexican citizen and of his patriotic services. These entitled him to a preference over Haggard. .(Col. Law 1825, art. 10; Col. Law 1S32, art. 20.)
    It is clear that the Bangs title must prevail over the Talbot Chambers claimants, aud that the judgment of the court below must be sustained here.
    
      Hemphill, Cii. J., did not sit in this case.
    
      
      The opinion delivered in this ease disposed also of the ease of Blakey and others v. Chambers. — Res.
    
   Wheeler, J.

It does not appear that Haggard received any concession- or other evidence of right to (lie land lie claimed previous to the date of the title issued to him by Talbot Chambers in 1835. Ilis having settled upon and cultivated the land, without having be,on placed in possession by the proper authority, or having received any evidence of right to it, gave him no title, legal or equitable, wliieh can be recognized in a court of justice. Even a survey without a concession or order of survey would not be a legal appropriation of the laud. (Howard and Wife v. Perry, 7 Tex. R.; Smith v. The United States, 10 Pet. R., 326.)

The title issued to Haggard in 1835 bears the same date as his order of survey ; and this was the. first act of the government setting apart to him the, land. It was preceded by no inchoate, or equitable title on which it could relate back to any antecedent period. It was a, title to the land embraced wit.hiu it only from its date. The defendant’s is the older title, and, if valid, must prevail. The question of its validity, therefore, is the. material subject of inquiry.

The objections to the defendant’s title, taken at the trial and now'insisted on, are in effect,

1st. That the Governor had no authority to make the concession for the quantity of land and on the evidence on which it was made.

2d. That the grantee had no right to select the laud granted in two places, or to obtain titles on two distinct surveys.

3d. That the land does iiot appear to have been surveyed by a legally authorized surveyor.

4th. That the law under which the concession was made was repealed previous to the completion of the title, and that for these several reasons it is void.

The 17th article of the colonization law of 1825, under which the grant was, made, is as follows: “ It shall belong to the executive to increase the portions specified in articles 14,10, and 16 in proportion to the family, industry, “and activity of the colonists according to the separate reports upon the subject that shall be rendered by the ayuntamientos and commissioners, al“ways bearing in mind the provision of article 12 of the decree of the general “ Congress on the subject.” (Laws and Decrees of C. & T., p. 18.)

The articles 14, 15, and 10 here referred to are those which provided the quantity of land which should lie granted to colonists and to families ami single men, “who, having (‘.migrated separately and at their own expense,’* might wish to annex themselves to any of the new settlements. The lOth article provides especially for this latter class, to which the grantee in this case belonged.

An authority is thus conferred upon the executive by the 17th article to increase the quantity of land provided for the beneficiary of the 16th article to any amount to which, in his judgment, lie may be entitled, subject only to the limitation contained in article 12 of the national colonization law, which restricts the quantity to eleven leagues. (1 White, G01.)

Of the authority of the executive under the 17th article to make the grant there call be no question. The authority to inórense the quantity, that is, to grant a quantity “in proportion to the family, industry, and activity” of the applicant., presupposed the authority to judge of the qualifications of the applicant. On this subject lie, ivas to receive the reports of the ayuntamientos and commissioners. These were, designed to afford him the requisite information on which to exercise his judgment. But they were not binding upon him to control it. Their object was not to determine for him the quantity of land to which the applicant was entitled, hut simply to enlighten his judgment. It belonged to the executive, in the language of the law, to increase the portions of land in proportion to the. family, industry, and activity of the applicant. Of these the executive was to judge. And although the law afforded him certain moans of information, it dirt not prohibit him from obtaining information from other sources, or from acting- upon his own personal knowledge of the facts, should ho be in possession of the requisite information. Such, in some mea-ure, appears to have been the action of the executive in this instance. The applicant resided in Leona Vicario. The Governor therefore referred his ilion It' the ayuntamiento of tiiat place, on whoso report, together with liis personal knowledge and certain documentary evidence furnished by the petitioner, lie appears" to have acted. This certainly was more in accordance with the spirit and intention of the law than to have referred the petition to the local authorities of the department in which the land was situated, who probably possessed no knowledge of the petitioner or of his merits and qualifications. Where the object contemplated by the law was information, it is rational to suppose that the intention was tiiat it should be applied for where it could be obtained rather than where it did.not exist,. There is therefore, we think, nothing in the objection that the Governor acted upon the report of the local authority where the applicant resided rather than upon that of the department in which tlie laud was situated.

The objection that the evidence upon which the Governor acted was not sufficient to entitle the applicant to the grant is not entitled to more weight. That was a question, confided by' the law to the judgment of the executive, and it is unquestionable that liis decision upon it is not now subject to revision by this court. Willi as much propriety might we sit here to revise the action of the authorities iu granting- a league rather than a labor under the 14th article of tlie law. or to inquire into the sufficiency of the evidence upon which the empresarios and commissioners acted in making- a grant in any case. It is scarcely' necessary to say that such inquiries would be as unprecedented as they would be nil warrantable. The fact that the applicant possessed the requisite qualification,- ivas determined by the Governor in passing upon the application, and he was not bound to preserve the proofs upon which that decision ivas founded, nor could he be compelled to reproduce them upon the trial of this case.' The Supreme Court of the United States applied this principle to cases iu which tiiat tribunal was required to pass directly upon tlie validity of the concession, upon the application of the grantee for its confirmation under the act of Congress. In Ohoteau’s Heirs v. The United States, Chief Justice Marshall said: “We think that in the spirit of the decisions which have beeii “ heretofore made by this court and of the acts of confirmation by Congress “ the fact tiiat, tlie applicant possessed the requisite amount of property to en- “ title him to the land-he solicited was submitted to tlie officer who decided “oil tlie application, and that he is not bound to prove it to the court which “passes ou Hie validity of the grant.” (9 Pet. R., 1Ü3-4.)

What evidence, besides tlie report of tlie ayuntamiento was before the Governor when he made tlie concession does not appear. In the evidence embodied in the record there is nothing to induce the belief that, tlie grantee did not present a meritorious claim or tiiat he was not justly' entitled to the grant he obtained. But if upon the evidence the merits of tlie applicant were doubtful, that question is not now open to discussion. The Governor was constituted by tlie law the judge of the qualifications of tlie applicant. Having- exercised liis judgment and decided upon the question legally submitted to liis cognizance, liis decision is final. “The only questions” (said the Supreme Court of the United States in tlie ease of the United States v. Arredondo) “which can “arise bet ween an individual claiming a right under the act done and tlie “ public, or any person denying its validity, are power in tlie officer and fraud “ in the party. All other questions are settled by the decision made or tlie “act- done by the tribunal or officer, whether executive, legislative, judicialj “special, unless an appeal is provided for or other revision by some appellate “ or supervisory tribunal, is prescribed by law.” (G Pet. R., 729, and authorities cited.)

It remains to consider the objections taken to the title issued to the grantee by' tlie special commissioner in 1834. And it is objected that tlie concession did not give the authority to obtain titles to the lands granted in two distinct localities.

, This question was before the Supreme Court of the United States in the case of the United States v. The Heirs of Clarke et al. upon a Spanish concession to land in Florida similar in its terms to the present, and the court in that case confirmed t-lic grant to the several surveys. (16 Pet., R, 228; 10 Id., 313.)

But it is not deemed necessaiy to determine in this case whether the concession gave the right to the gran tee to select the land in two places or not. For however that may be, it certainly gave him the right to select six leagues at the place where that now in question ivas selected. It will scarcely be denied that the right to select six leagues in a giveu place included the right to a less quantity oí- that the grant of six leagues conferred the right to obtain a title to a less quantity of the land particularly designated in the concession. And it is not perceived that the having obtained a title to a part elsewhere, even if that were unauthorized and void,' would affect the title of the grantee to the residue of the land actually embraced in the grant in the ifface designated by it. With, whatever effect this objection might tie urged against the validity of the title to the selection made upon the Brazos, it cannot affect the validity of the title to the laud here in question, which was selected in the place where granted.

It is further objected to the title that it does not appear that the survey was made by a legally authorized surveyor.

The title states that the land was surveyed for the grantee on the 3d day of March, 1S32, by the scientific and approved surveyor, Thomas H. Bordeu. The presumption is that it was surveyed by order of the alcalde, who was authorized by the concession to put the grantee in possession and issue to him the title, and in consequence of whose failure to complete the title a special commissioner was appointed for that purpose. It was in proof that the land had been surveyed, and there is no question that the survey was accurate and in entire conformity to law. And in the case of Jones v. Menard this court hold the following language': “We are not prepared to say nor is it ne- “ cessary to decide but that, if the land had been surveyed by a legally authorized surveyor, (hat is, if the work had been done ready to the hand of those “ who as colonists might wish to locate it, such survey would be sufficient, the “ return being made after the issue of the order. This is believed to have been “ in very general practice by the surveyors under the empresarios. If it had “ been surveyed before the order of survey the same surveyor could certainly with “ propriety swear to the correctness of his field notes as well and with as much “ truth as if lie had waited to receive the order before he made the survey.” (I Tex. B., 789.) Here the survey was made long after the date of the concession which conferred the authority" on the alcalde to put .the grantee in possession. The presumption is that there was evidence before the commissioner that the surveyor had been duly authorized to make the survey, either by the alcalde authorized by the concession, or by another commissioner for that purpose. With the evidence before him that there had been a legal survey by competent authority it was not necessary that the commissioner should have caused a resurvey, iior was it necessary that lie should embody in the title the authority under which the survey had been made.

This, like other objections to the. title, is founded on the assumption that it-devolved on the grantee to prove that all the prerequisites to the making of the grant and the issuing of the title had been complied with. Whereas the reverse of this is true. It devolved on the party impeaching the title to show their non-performance. “That every prerequisite lias been performed is an infer- “ ence properly Reducible and which every man has a right to draw from the “existence of the grant itself.” (Per Ch. Jus. Marshall, in Polk’s Lessee v. Wendal, 3 Cond. R. S. C. U. S., 291.)

The presumption is that the officer authorized by law to issue the title has done his duty, and lias acted in all respects in conformity to law until the contrary appears. And it is incumbent on the party who would controvert a grant, executed by competent authority, 'with the forms and solemnities required by law, to repel this presumption by proof. “A grant or concession,” (said Chief Justice Marshall, in Dolassus t>. The United States,) “made by that “officer, who is by law authorized to make it, carries with it prima facie evidence'that it is within liis powers. No excess of them or departure from “ them is (o be presumed. He violates bis duty by such excess, and is responsible for it. He who alleges that an officer, intrusted with an important du“ty, has violated his instructions, must show it.” (9 Pet. R., 134; Strother v. Lucas, 13 Pet. R., 410.)

The title in this ease, having been issued by competent authority, afforded prima ft'air evidence that all the prerequisites of the law had been 'complied with. And if there was any omission or illegality committed on the part of the officer of a character to invalidate the title, it devolved on the plaintiff in tills case to show it

Finally, it is objected tiiat the law under which tlie concession was made was repealed by the law of the 28th of April, 1832. (Decree 190, Laws & Dee., art. 38.) But the 10th article of the repealing law contains an express reservation of the rights of those who had received concessions as purchaser or ¡seniors under the law of 1825. This reservation embraced the concession (o Bangs. The 29th article of tlie law of the 20th March, 1834-, (Id., Dec., 272,) repealed the law of 1832. There is, however, nothing in the pror visions of this law which .evidences any intention on the part of the Legislature to annul rights acquired under the former laws. On tlie contrary, tlie provisions of articles 30, 33, and 34 manifest a different intention. And to give to the. law a retrospective effect to annul rights previously vested, as were those of Bangs to the laud designated in liis grant, unless that had been the clearly expressed intention of the Legislature, would be opposed to the received rule of const ruction of both the common and the civil law'.

But it is insisted that there was remaining no provision for completing tlie l.if les under concessions to settlers. The granting power, however, remained in tlie Governor of tlie State. The law, it is true, had made an entire change in respect to its exercise as to the future. But as to past contracts', there is no evidence in the law of an intention to charge it; and there is nothing repugnant to the conclusion that it remained unimpaired. As to colonization contracts, article 30, while it declares tiiat thereafter “no colonization “contracts shall be made,” expressly provides tiiat those theretofore made “shall he strictly fulfilled, and in entire accordance with the law of tlie 24th “of March, 1825.” And it is apparent from articles 32, 33, and 34 that it was the intention that tlie equitable claims upon the government of others than those whose rights were included in the reservation in favor of colonization contracts should be respected, and especially that those persons who had “emigrated separately and at their own expense,” and who, as a class, had been provided for by the 16th, 17th, and ISth articles of the law of 1825, of which class was the grantee in this ease, should be secured in their rights, as fully and to tlie same extent as if tiiat law had remained in force.

The instructions to commissioners were repealed only in so far as they were opposed to the provisions of the law of 1834, (Deo., 272, art. 29.) Those* of tlie 4th of September, 1827, (Laws & Deo., p. 70,) were doubtless mainly intended for tlie government of commissioners for the distribution of lands to colonists proper. But their terms are sufficiently comprehensive to embrace and they were made to embrace other cases of concessions made under tlie law of 1825.

The reason of the law which required that colonization contracts should be carried out in accordance with the law of 1825 undoubtedly applied with equal force to the concession in this case. Tiiat law did not in terms provide for extending titles to colonists introduced under those contracts. But it could never have been doubted tiiat it was intended to include them. And there can be as little doubt that it was tlie then received construction of the law that the repeal did not divest the Governor of the authority to complete the title's where there, had been concessions made to purchasers and settlers under the law of [825. That construction seems more natural and rational than the opposite one, which would require us to suppose, that the legislature intended, indirectly and by implication, to annul pre-existing- rights and contracts guarantied and confirmed by previous laws. We cannot suppose that such a consequence- was intended. And the history of the times, it is believed, as connected with this subject will adbrd abundant evidence that such was not understood to be the effect of the repealing- law.

Note 37. — Styles v. Gray, 10 T., 503; Hardiman v. Herbert, 11 T., 056; Hatch v. Dunn, 11 T* 708; Ruis v. Chambers, 15 T., 690.

Note 3S. — MeGehee v. Dwyer, 22 T., 435.

But whatever might have been our opinion of the correctness of the construction of the law adopted and acled upon by the Governor in appointing a commissioner to issue the tille to the grantee in this case, we have heretofore decided that (he construction of their powers and of the laws which conferred them, adopted and acted upon by the former authorities of the country, must be respected, unless it be clearly shown that they have exceeded their powers or have acted in manifest con fra ven (ion of law. (Hancock v. McKinney, 7 Tex. R., 384.) Acts done and rights justly acquired under such construction will not be disturbed.

By the 3Gth article of the law of 1834 settlers, after having received the 1 iiles .to their lands, wore authorized lo sell, the purchaser being- charged with the performance of the conditions. There is therefore nothing in the objection .that the grantee, in this case did not perform in person the condition of settlement and cultivation.

, The proof showed performance of the conditions of the grant. The instruction, therefore, respecting the right of any one hut the government to inquire into the non-performance of the conditions, whether correct or otherwise, was immaterial, and cannot afford a ground for reversing the judgment.

We are of opinion that there is no error in the judgment and that it he affirmed.

Judgment affirmed.  