
    No. XXIII.
    The Republic of Texas v. Baily Inglish et al., Heirs of Joseph Inglish, Deceased.
    (See .)
    
      Appeal from Lamar County.
    
    
      
      .—Republic v. Inglish, p. 608.
      Colonization law of March 25, 1825, repealed by law of April 28, 1832, and latter by law of March 26, 1834. Land Commissioner v. Bell, Dal., 366; Creth v. Republic, 1 T., 83; Ferguson v. Johnson, 11 T. C. A., 413. Under colonization laws emigration alone did not entitle one or his heirs to land. Creth v. Republic, 1 T., 83; Kennedy v. State, 11 T., 108; Hill v. Moore, 85 T., 335; Ferguson v. Johnson, 11 T. C. A., 413. Liberal construction will be given in favor of grants made in 1835. Elliott v. Mitchell, 28 x 105. Grants provided for by the Constitution of the Republic and Act of December 14, 1837, applied only to citizens who were in Texas. Land Commissioner v. Bell, Dal., 366; Creth v. Republic, 1 T., 83. A colonist was not entitled to a grant as head of a family, unless his family was resident in Texas. Land Commissioners v. Bell, Dal., 366; Land Commissioners v. Reily, Dal., 381; Land Commissioners v. Walling, Dal., 524; Republic v. Skidmore, Dal., 581; Langford v. Republic, Dal., 588; Johns v. Republic, Dal., 621; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichnor v. State, 2 T., 269; Lewis v. Ames, 44 T., 319, 345; Lott v. King, 79 T., 292; Hill v. Moore, 85 T., 335; Byrn v. Kleas, 15 T. C. A., 205; Union Beef Co. v. Thurman, 70 Fed. Rep., 965. An unmarried colonist, under twenty-one years of age was not entitled to a headright grant. Lockhart v. Republic, 2 T., 127. But it will be presumed from the fact that a headright certificate was granted by the' proper authority that the grantee was the head of a family, and evidence is not admissible in a collateral proceeding to show that he was not married and that his family was not in Texas. Johnston v. Smith, 21 T., 722; Bowmer v. Hicks, 22 T., 155; Howard v. Colquhoun, 28 T., 134; Burkett v. Scarborough, 59 T., 495; Capp v. Terry, 75 T., 391; Boone v. Hulsey, 71 T., 176; Hill v. Moore, 85 T., 335; Byers v. Wallace, 87 T., 503. Grant is valid if the grantee in good faith intended to move his family to Texas. Republic v. Young, Dal., 464; State v. Skidmore, 5 T., 469; Russell v. Randolph, 11 T., 460. Titles issued by alcaldes and commissioners after closing of Land Office by Act of Consultation on November 13, 1835 (Gammel’s Laws of Texas, vol. 1, p. 541), which took effect immediately on adoption, are null and void. Donaldson v. Dodd, 12 T., 381; Spier v. Laman, 27 T., 205; Parker v. Bains, 59 T., 15. If the title was actually issued before November 13, 1835, making out and delivering the testimonio shortly afterwards did not invalidate the title. Houston v. Blythe, 60 T., 506. Holders of orders for surveys and headright certificates, issued prior to November 13, 1835 could only establish their claims in the mode prescribed by Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), upon proof of facts enumerated in section 12. Land Commissioners v. Reily, Dal., 381; Land Commissioners v. Walling, Dal., 524; Republic v. Skidmore, Dal., 581; Johns v. Republic, Dal., 621; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T.,’ 98; Land Commissioners v. Riley, 3 T., 237; Capp v. Terry, 75 T., 391. Alí certificates returned by commissioners as genuine, but not recommended on0 account of want of oath required by section 12 of Act of December 14, 1837, were validated and directed to be patented by Act of January 19, 1841 (Gammel’s Laws of Texas, vol. 2, p. 528). Whitehead v. Foley, 28 T., 1; Spofford v. Bennett, 55 T., 293. Under Act of February 5, 1840 (Gammel’s Laws of Texas, vol. 2, p. 335), patents could only issue on certificate of recommendation from Board of Land Commissioners, and holders of unrecommended land certificates had no standing in court without it. Norton v. Land Commissioner, 2 T., 357; Bracken v. Wells, 3 T., 88, 90; Kemper v. Victoria, 3 T., 135; Miller v. Brownson, 50 T., 583. All surveys supported by recommended certificates valid; without them, invalid. Warren v. Shuman, 5 T., 441; Scott v. Mather 14 T., 235; Whitehead v. Foley, 28 T., 268. Headright certificate is not color of title, unless recommended. Horton v. Crawford, 10 T., 382; Whitehead v. Foley, 28 T., 268. Prohibition in Act of February 5, 1840, against surveys on unrecommended certificates after May 1, 1840, did not legalize surveys made either prior or subsequently on unrecommended certificates. Warren v. Shuman, 5 T., 441. It seems that surveys on genuine headright certificates are valid, though not recommended by commissioners. Howard v. Perry, 7 T., 259; Hart v. Gibbons, 14 T., 213. But under Act of January 29, 1840 (Gammel’s Laws of Texas, vol. 2, p. 313), authority to issue patents on first class headright certificates, was based on recommendation. Miller v. Brownson, 50 T., 583. Under extension of time allowed by Constitution of 1845, a survey made on an unrecommended certificate prior to January 1, 1844, suit to establish claim could be maintained in 1847. Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Scott v. Mather, 14 T., 235. Under Act of February 7, 1860 (Gammel’s Laws of Texas, vol. 4, p. 1410), providing for re-examination of rejected warrants and certificates, a rejection made before limit of time fixed in section 11 is not void, the obpect of the statute being to give claimants ample time to prove their claims. Durrett v. Land Commissioner, 28 T., 687. Under Act of April 25, 1871 (Gammel’s Laws of Texas, vol. 6, p. 962), holders of unlocated certificates were not required to locate them at any particular period between passage of law and January 1, 1875. Laws in force prior to Act of November 29, 1871 (Gammel’s Laws of Texas, vol. 7, p. 47), did not require certificate and field notes, to be returned within twelve months after survey. Snider v. I. & G. N. Ry., 52 T., 306; Snider v. Methvin, 60 T., 487. Under Rev. Stats., 1895, arts. 4138 and 4145, survey must be made within twelve months after entry, and field notes returned within twelve months after survey. Von Rosenberg v. Cuellar, 80 T., 249.
    
   JONES (William E.), Justice.

—This was a suit commenced in the District Court of Lamar County by the appellees, as heirs at law of Joseph Inglish, deceased, for a league of land, under the provisions of the eleventh section of the Act of 4th February, 1841, entitled “An act supplementary to an act to detect fraudulent land certificates,” etc. The petitioners set forth that their ancestor immigrated to that part of Texas, now known as Lamar County, about the 25th December, 1835, and there resided until his death, which occurred on the 17th February, 1836; that he was a married man and the head of a family. On the trial of this case at the September term, 1843, of the district court, the jury returned the following verdict: “We the jury find for the plaintiffs and say that the facts contained in their petition are true.” Upon the verdict a judgment was rendered in favor of the plaintiffs for one league and labor of land, and a certificate ordered to issue therefor; from which judgment an appeal was taken to this court on behalf of the Republic.

In the decision of this case two questions present themselves for our consideration:

1. Was Joseph Inglish entitled to land as a citizen of this Republic, under the Constitution and laws ? And if not,

2. Was he entitled to land as a colonist or settler, under any law of the State of Coahuila and Texas?

The appellees in this case, claiming as the heirs and representatives of Joseph Inglish, can recover only what their ancestor himself was entitled to at the time of his death. Section 10 of the general provisions of the Constitution declares that all persons (Africans, the descendants of Africans, and Indians excepted) who were residing in Texas at the date of the declaration of independence, shall be considered citizens of the Republic, and that all such who shall not have received lands as colonists shall be entitled, if heads of families, to one league and labor each. The right to land, predicated upon, citizenship in this Republic, can not attach back to a period anterior to the declaration of independence on the 2d day of March, 1836. That is the time fixed by the Constitution at which residence confers citizenship, and as Joseph Inglish was dead before that day, no claim to land could possibly have accrued to him under that provision of the Constitution, as a citizen of the Republic.

We are then led to the second inquiry, whether under any law of the State of Coahuila and Texas he was entitled to lands as a colonist or settler ?

The general colonization law of the 24th day of March, 1825, Decree No. 16, of the Laws of Coahuila and Texas, was repealed by article 38 of Decree No. 190, of the date of 28th April, 1832, and 'a system of colonization established in many respects different from that of 1825. This second colonization law was itself repealed by article 29 of Decree No. 272, of the date of 26th of March, 1834, and by article 30 it is declared that no further colonization contracts shall be made. By this decree a new system for the disposition of the vacant lands of the State by sales at public auction was established and substituted for the old plan of colonization. The repealing decrees, referred to above, severally declare that all contracts made under the provisions of the repealed decrees shall be fulfilled by the government; but it is not alleged that the deceased Joseph Inglish was brought into the country as a colonist, or received as such by any empressario, in fulfillment of any subsisting colonization contract entered into while those laws were in force.

Decree No. 309, of the date of 2d May, 1835, article 1, declares:

“That all persons, or families now residing in Texas, and who have emigrated previous to the date of this law for the purpose of settling in the country, and who have not received lands according to the colonization laws, are hereby declared to be entitled to the portions designated by the law of the 24th March, 1825, provided that they possess the qualifications therein prescribed.”

This decree secures lands to those only who were residing in Texas at the date of the decree, and had emigrated previously thereto. It makes no provision whatever for those who might emigrate thereafter; and as Joseph Inglish, through whom the appellees claim, did not arrive in the country until the month of December succeeding the passage of this law, he could not become a beneficiary of its provisions.. This being the last legislative act of Coahuila and Texas granting land to emigrants, we are led to the necessary conclusion, that at the time of his death Joseph Inglish was not entitled to land under any law of the State of Coahuila and Texas.

However hard it may seem to exclude the heirs of those who arrived in this country subsequent to the 2d day of May, 1835, and died prior to the declaration of independence, from the benefits of the profuse liberality of the Republic in the distribution of her public lands, yet it is not in the power of this court to give vitality to a claim which has no foundation in the laws. We know of no remedy for such cases, except legislative action. Let the judgment of the court below be reversed and annulled, and the appellees pay the costs.

Reversed.  