
    Swift v. Herrera.
    Where the defendant, who located in 1840, alleged that the person under whom the plaintiff claimed never did live upon, cultivate, nor improve the land as required by law, and that he afterwards abandoned the country to avoid a participation in tho struggle for independence, whereby said land reverted to the government and became forfeited, which allegations had been stricken out on motion of the plaintiff, tho court said: That individuals cannot, since the adoption of the State Constitution, by location, assert any right to lands previously granted on the grounds simply of forfeiture, was fully deeidoct in the case of Hancock v. McKinney, and the principles of that decision are conclusive in support of the. ruling of the court now under consideration. (Note 44.)
    A certificate by the translator in the General Land Office under his hand that a document is a correct translation of the original on file in that office, accompanied by the certificate of the commissioner, under his hand and seal of tho department., that “ E. Sterling 0. Uob- “ ertson, whose name is signed above, is tho translator and recorder of Spanish deeds in “ this office, bonded and sworn,” is sufficient. (Note 45.)
    It is the province of the court and not of the jury to determine the legal effect of a grant. (Note 40.)
    Where a concession to a meritorious, native inhabitant of a frontier town, over forty years of age, purported to have in view the 12th article of decree 128, and yet directed the officer who should put the grantee in possession to classify tho land, to show that which he must pay the State, for which payment tho rights designated in the 22d article of the law of 1S25 were conceded to him, and the commissioner who put him in possession, after classifying the land, declared that lie was, by virtue of the 12th article of decree 128, exempted from making any payment or acknowledgment to the State, tho court said: The Governor had no authority, under the facts of this case, to impose as a condition of the grant the payment of any dues. The assumption of power in imposing such a condition was unwai rentable. Tho grant itself (the concession) was issued by competent authority ' in the legitimate exercise of power, and is not vitiated by a condition which, in contemplation of law, is a nullity. The commissioner did not exceed his power in failing to embody such condition in tho title. (Note 47.)
    Where a concession in 18:11 conceded to the petitioner “the sitio and labor which he solicits, “ in tho place ho has designated or in that which may best suit him, after the designation “ of tho commissioner of the general supreme government, of a sufficiency for the pay- “ ment of that which the State is indebted to tho federation,” and the petition of the grantee, founded thereon, to the commissioner, for tho corresponding title, stated that to wait so long would subject him to many inconveniences, and as ho believed tho probability very uncertain that, the said general commissioner would select tho same land that lie claimed, because it was in an unimportant place, whereforo ho prayed the commissioner that of his powers he would grant him the said sitio and labor, and he would receive it and hold it with the same condition placed upon it by the supreme government, and thereupon the commissioner extended the title, expressly stipulating therein the condition aforesaid: Held, That it was a perfect, as contradistinguished from an inchoate title, and that it was discharged of tho aforesaid condition by the revolution.
    Appeal from Guadaloupe. Action of trespass to try title by Herrera against Swift.
    Swift denied all and singular, &e.; set up title in liimself by virtue of locations made in 1S49, alleging that the pretended grant to Mansola, under which the plaintiff claimed, was void; that no concession was ever made by the Governor as is stated in said title; that no report of the ayuntamiento was liad as was pretended to be sot forth in said title; that the officer pretending'to grant the same was wholly without authority, and that he withheld the original and never did transmit the same to the political chief as was pretended; that at the time said grant was made or purported to have been made there was no law authorizing grants of that character; that the same was fraudulent in this that it sought to grant land to a new settler under the 22cl section of the colonization law, when in truth the applicant was only entitled to land under the 24th section as a purchaser; that no legal survey was ever made of said laud; that the Council of State of Coahuila and Texas never ratified and approved said grant, nor had the government of the Republic or State of Texas since done so, wherefore said grant or pretended grant was a mere inchoate title; that, even if said grant conveyed any t itle or interest to Antonio Mansola, the pretended grantee, which was denied, said Antonio never did cultivate, live upon, nor improve the same as required 'by law, and that he afterwards abandoned the country to avoid a participation in the struggle for independence, during-the war between Mexico and Texas, whereby said land reverted to the government and became forfeited; that defendant, having strong reasons to suspect the fairness and genuineness of said original grant, requires the production oi the same; he denied that the same was genuine, and denied that (lie copy among the archives of the Laud Office in Austin was written on strong paper of the right kind.
    On motion of the plaintiff the court struck out those parts of the defendant’s answer which set up abandonment of the country by Mansola to avoid a participation in the struggle for independence and failure to occupy and cultivate.
    There, was a verdict and judgment for the plaintiff. Motioti for new trial overruled. There was a hill of exceptions, as follows:
    Bo it remembered, &e., the plaintiff, to support his claim, ottered in evidence the document marked A, purporting to be a translation of an original document existing in the Land Office at Austin, aud certified by E. Sterling C. Robertson to be a correct translation of the original, and with certificate of tile Commissioner of General Land Office; to the introduction of which document as evidence the defendant objected, hut which objection the court overruled, &c.
    Document A was as follows :
    Third Seal. Two bitts.
    Qualified by the State of Coahuila and Texas for the term of 1828 and ’29, ’30 and’111.
    Mr. COMMISSIONER : Anastacio Mansola, a native of San Fernando de Bexar, and a resident therein to date, before you, in the most proper form of proceeding, would represent that the supreme government of the State, by decree of 12th April of the present year, thought proper to grant to me one sitio of land and one. labor, which I asked, as being more than 40 years, availing myself of the provisions of the 12th article of the decree number 128 of the same State, as appears by the document of concession, which I exhibit on three leaves, by which it will also he seen that notwithstanding- I asked for one sitio of land more, under the character of a settler, having conceded to me only the sitio and labor aforesaid, and then with the condition that they shall betaken after those are designated by the commissioner of the general government for the payment of that which this State is indebted to the federation. As it desires me to wait so long a time, it will subject me to many inconveniences, and as I believe the probability very uncertain that the said general commissioner will select the same land that I claim, because it is in'an unimportant place, I pray you in me of your powers you may he pleased to grant, me the said sitio and labor, and I agree to receive it and hold it with the same condition placed on it by the supreme government. Gonzales, 10th August, 1S31. ‘
    ‘ At the request of Anastacio Mansola, by not knowing how to write, I have signed.
    Jose Maria Salinas.
    Gonzales, Titli August, 1831.
    By being presented and admitted on the terms which the present document shows, I liave attached in continuation the document of concession included, on three leaves, to the end that, in all time, it may have the due effect to the empresario, citizen Green De Witt, that, in view of the document, he may inform me in writing if the land claimed by the party interested is entirely vacant and included in the demarkation of this colony, as also if there is auy inconvenience in granting to him the aforesaid laud, I, Jose Antonio Navarro, special commissioner of the supreme government of the State of Coahuila and Texas for the partition and possession of vacant lands in this colony contracted with the supreme government by the empresario Green De Witt, by tiffs act thus I decree, order, and sign, with two witnesses assisting, this day of the date, which I certify.
    Jose Antonio Navarro.
    Assisting. Jose Ramon Bedford. Fourth Seal, 3§ cents.
    rT ■ « ., llj‘ ft-J
    Assisting. Thomas R. Miller. For the Term, 1830 and 1831.
    
      Me. Political Chief of this Department : The citizen Anastacio Man-sola,a native and with a residence of 42 years 3 months and-days, according- to the record of my caption, before yon, with the due respect, would represent that I desire a tract of land on which I can raise some animals of the cow kind, including- some work oxen, and at the same time a few horses, and also, as i iiave been raised to cultivate soil, as I have informed and proved to you of this date, I present myself to your correct sense of justice with the object that you may be pleased to grant me one league and labor in tiro place or margin of the river Guadaloupe on this side, taking in the center of the land which I ask the pass called San Gerónimo, it being my wish to take for boundary the road of Nacogdoches on the north, and on the south by lands which have'been asked for by the citizen Elijio Gorfari, which concession I ask, availing myself of the favor of the sovereign decree number 128 of the honorable legislature of the State to the citizens of the frontier of this department, respectfully accompanying to you the certificate of the honorable ayuntamiento of this city, which asks in the said sovereign decree, in its 13th article attached, that in the most dangerous time I served as a soldier in the city company of Bexar, and in consequence of the searcit}^ of money I was badly paid almost all the time oE my service. In virtue of this and the proof of the indicated certificate of the merits which I possess, I hope that you may have the goodness to give direction lo this petition, elevating it to the supreme government of the State for its determination, in the event that you cannot‘determine upon my petition, which extends in addition to the sitio and labor which I asked for above the previous favor conceded to me, that you may grant me another sitio by way of purchase, which I obligato myself to pay for according to the rule established, and by consequence the expenses of surveying, title, &c., which may be necessary, on which terms I pray you may attend to my petition in which I shall receive favor and grace.
    SAN FERNANDO de Bexab, 18th of August, 1S30.
    Anastacio Mansola.
    Bexar, mh of April, 1S30.
    To the honorable ayuntamiento of this city, with the accompanying document, that they may inform me if the land is vacant, and if there is no inconvenience to its being conceded.
    Musquis.
    The citizen Miguel Arciniega, only constitutional alcalde of the city of San Fernando de Bexar. I certify as far as I am authorized by right that the citizen Anastacio Mansola is a native and resident of this city; that lie is forty-two years of age; that lie lias given his services voluntarily in all that has been required of him; and when this city was in danger from the incursions of the barbarous Indians lie presented himself freely with arms in his hands to defend it. And by decree of the same ayuntamiento and at verbal request of the party interested I g-ive this for the uses that may be necessary. Concluded in Sau Fernando de Bexar, August 2@th, 1830.
    Miguel Aroiniega.
    Ignacio Arocha, Secretary of the Ayuntamiento.
    
    Mr. Political Chief of this Department : This corporation, being impressed with tile foregoing- petition of the citizen Anastacio Mansola, and of the decree which you have been pleased to stamp on its margin, in compliance therewith, have obtained the necessary information and find that the laud pertains to the colony of the empresario Green De Witt; that it is vacant, and that the party-interested possesses tlie necessary abilities to settle and cultivate it according to the law. Given iii the capital of Bexar on the 2d of September, 1S30.
    Miguel Arciniega.
    Ignacio Arocha, Secretary of the Ayuntamiento.
    
    
      LEONA VICARIO, 12 íh of April, 1833.
    According to tlie provision of the law of colonization of the State of the 2-lth of March, 1835, in virtue of the information given by the ayuntamiento of the city of Bexar iu the accompanying- certificate, and according to the provision iu the 12th article of decree number 128, issued by the honorable Congress of the State on the 7th of April, 1830,1 concede to the petitioner the sitio and labor which he solicits in the place he lias designated or in that which may best suit him, after Llie designation of the commissioner of the general supreme government of a sufficiency for the payment of that whicli the State is indebted to the federation, provided that tire land designated by the petitioner is entirely vacant and by no title corresponds to any person or corporation whatever. The commissioner for the partition of lauds in the enterprise to which pertains (lie land which the party solicits, and in his default or not being com-Xirehended iu any enterprise, the first or only alcalde of the respective municipality will comply with the orders given on tile matter, will put him in possession of said sitio and labor, and issue the corresponding title, previously classifying the quality of it to show that which he must pay the State, for which payment I concede to him the rights designated in the 22d article of the said law. The secretary will give the party interested a copy of his petition and this decree, that lie may present them to the commissioner for the effects which are to follow.
    Letona.
    Santiago del Valle, Secretary.
    
    This is a copy of its original, which exists in the archives of the secretary’s office under my charge, from which it is ordered to be taken by order of the most excellent Governor.
    Leona Vicario, 13¿/j of April, 1831.
    Santiago I>el Valle.
    Mr. COMMISSIONER: I have seen your decree on the first and second pages of this document, and in reply would say that the land claimed by the citizen of Bexar, Anaslacio Mangóla, is situated on the southwestern margin of the Guadaloupe river, and I think it is situated in the vicinity of the glen (cañada) anciently called the Meneliaeas, which place pertains to my colony and is vacant to date. In regard to whether there are any embarrassments in conceding the land to the party interested, I am bound to say that there is none. Thu title, alone of being a native of Bexar and consequently a Mexican citizen would give him, iu my judgment, a preference over any other; and I, as empresario of this colony, am anxious to have these citizens. This is as much as I can say to you in the particular. Gonzales, 28th of August, 1831. ‘
    Green ,De Witt.
    I have seen the foregoing information of tile empresario, by which it will be seen that the sitio and labor asked for by tire citizen Anastacio Mausola are entirely vacant, and of those that pertain to this colony. It also appearing by decree of the 12th of April last, contained on the third and fourth leaves of this document, that the supreme government of the State conceded to him said lands, as being over forty years a frontier citizen, and in consequence entitled to the maximum dispensed to such citizens by the 12th article of the decree of the same State, number 128, notwithstanding the indicated concession of the government includes the condition of leaving free the exercise of the authority of the commissioner of the general government to select those lauds that the federation may require in payment of the debts of the State, considering (lie qualifications," honcsly, good services, and capacity of the party to settle and cultivate the lands which he solicits, in addition to having agreed in his petition to subject himself to the condition with which they were conceded to him by the government, that it is very improbable that the commissioner of the general government would claim and select at any time the same land; that it is situated in almost an unimportant place for the formation of any military establishment — in use of tiie power which the said decree of 12th of April last concedes to me as commissioner in this colony, I am bound to order and obey the present act. I order, in view thereof, that title of possession be given him, that by virtue of it he may possess and enjoy, without any other condition or payment than those expressed, the sitio aud labor which he claims by concession which was made to him by the supreme government, which I certify and sign for its continuance, with two assisting witnesses, in this said village of Gonzales, oil the 2Stli day of the month of August of the same year of 1831.
    Jose ANtonio Mavarro.
    Assisting. Jose Ramon Bedford.
    Assisting. -- — -—.
    In the said village of Gonzales, on the 30th day of the same month and year, I, the said commissioner, in attention to the concession of the Supreme Government. of tiie State, dated 12th of April of the present year, made, to the resident native of the city of San Fernando de Bexar, Anastacio Mansola, one sitio and one labor of land of the two sitios and labor that this party solicits, one as a purchaser, and the oilier labor which lias been conceded to him according to tiie 12th article of U10 law number 12S of the same State, which grants privileges to the frontier citizens, attending to the authority which by said decree of the 12th of April of the present year is conceded to me, to put him in possession, as it appears that the laud which lie asked for and claims is t<> this date entirely vacant, and that lie agrees to receive it under the condition imposed by the same Supreme Government, exhibiting to him at tiie same time that the commissioner of the General Government might select the same laud, in consequence of my former act and in the. name of the State, I concede, confer, and put ill possession, real, actual, corporeal, and virtual, to the said Anas-tacio Mansola, of the aforesaid sitio and labor of laud, which land having been surveyed .all jut one body by the scientific surveyor, Byrd Lockhart, previously appointed in the form provided by the law, proved to be in the situation and with the following lines. (Here follows the Held notes, including the place designated in the petition.) The said land, which by tiie said notes of survey the surveyor believes to be of the pasture class, with four labors of temporal laud, which I declare aud classify, I, the said commissioner, in exercise of the power conferred on me by the law according to the best of my understanding aud belief, in conformity with said survey, which, serves as a perpetual proof that the aforesaid Anastacio Mansola lias received this sitio and labor of laud of the aforesaid class as premium, which corresponds to him according to tiie said 12th article of decree number 128, and that by the same lie is excepted from makiugany payment or acknowledgment to the State, aud without any other tax or obligation than those mentioned as aforesaid, the laud in tiie event that the commisssioner of the General Government should select and ask it on account of the federation, in which event he shall be indemnified according to the law; and that of constructing' within the year permanent landmarks in each angle of the land, settle it and cultivate it in conformity witli 'the provisions of tiie law of colonization of the State of the 21th of March, 1S25.
    Therefore, using tiie faculty which lias been conceded to me, and consequent instructions, I issue tiie present instrument, and order that tile original be remitted to the ohieftancy of this department of Bexar, where it is bound to. exist, for its due continuance, previously taking a certified copy of it, that it may be delivered to the party interested, to the end that as legitimate owner he may possess and enjoy freely the land, with all its uses, customs, and appurtenances which may pertain to it, now and forever, to him, his children, heirs, and successors, or whom of him or of them may Have cause or right. Which I sign with two assisting witnesses, according to the law, this day of the date.
    Jose AntoNio Navarro.
    Assisting. Jose Ramon Bedford.
    Assisting. Thomas R". Miller.
    
      GENERAL LAND Office,! I, E. Sterling C. Robertson. translator and reState of Texas. /corder of Spanish deeds in the General Land Office of said State, bonded and sworn, certify that the foregoing is a correct translation of the original document on file in this office.'” Given under my hand at the city of Austin, on the 17th day of May, A. O. 1S49.
    E. Sterling C. Robertson.
    
      T. Sf R. Sp. .71. O. L. 0.
    
    General Land Office, 1 I, George IV. Smyth, Commissioner of State of Texas. / the General Land Office; of said State, certify that E. Sterling' C. Robertson, whose name is signed above, is tlie translator and recorder of Spanish deeds in this office, bonded and sworn.
    In testimony, &c..
    [L. s.]
    GEO. W. SMYTH, Commissioner.
    
    The following instructions wore asked by the defendant and refused by the court:
    1st. It is for the jnry to determine from the grant itself whether it was the intention of the Government to grant the land absolutely or in fee-simple, or whether the grant was to depend upon a contingent or future event.
    2d. If the grant was to depend upon a contingent or future event, the fee did not pass from the Government at the time, and never could have passed without some future action of the Government.
    3d. That Antonio Navarro, as commissioner, had no power to issue a title upon other conditions than those contained in the concession of the Government.
    There was no statement of facts.
    
      0. IF. Paschal, for appellant. I. There are two propositions taken by the plaintiff below in his brief which I wish to notice. The first is the assumption that tlie plea of forfeiture was correctly stricken out. Tlie second that the grant to Herrera cannot be attacked by a locator collaterally unless it be void upon its face.
    On the first point, I do not wish to add a single authority to those presented in Paschal and Perez. But I wish to answer the argument of the counsel. It is contended that the party might forfeit his property, but that until that forfeiture be ascertained by a judgment, by indictment according to the proceedings of the comino^ kuv, ^a<1^ uaunot bo shown by a locator. And for this, 2 'Kent, 13, 3 Story on the Constitution, [274]sec. 1783, and the case in Gth Cowen’s N. Y. Rep., and others of a like class, are relied on.
    The 7th section of tlie declaration of rights of the Constitution of (lie Republic of Texas may incorporate tlie general principle of magna charta. But to say that the decisions invoked are applicable, is to foreknow that the Republic would adopt the common law. It is also to assume that the eighth general provision of the Constitution relaled to a crime which it did not. It only created a rule of property, which extended to future as (veil as past acquisitions. If tlie Constitution would thus protect the party it would extend as well to his note as his property.
    The reason given why this could never have been intended, viz, that parties may be continually harassed by locator after locator, is becoming a theme of popular declamation, but it is exceedingly fallacious. The argument applies as well to a patent from the Republic as to a Mexican grant. It is an objeclion to our whole system, and should be addressed to the legislature. Our system is that of Kentucky and Tennessee, and is in some form or other known"in all the States. It does not greatly differ from the Spanish system which we succeeded.
    The granting of certificates was a fulfillment of the most solemn guaranties of the Government. It is still continued as a means of paying debts which would otherwise fall upon the treasury. The holder of the certificate can as well locate it upon the patented land as the venerable Spanish grant. But the holders of the patents fear not these consequences, because" they fear not scrutiny. It is only the holders of bad titles, like the holders of had certificates, who complain of the laws. The honest owner of land is rarely harassed in any country; and I have yet to hear of the case where a second location has been made'after a judicial decision has been made in favor of a Spanish grant.
    II. The next position assumed is, that where a grant or patent has been issued under the great seal by an officer having jurisdiction or power to make tiie grant, it cannot be set aside by a collateral proceeding except for defects appearing on its face winch render it void. If the array of authorities presented by tiie appellee were to the point, they would indeed be persuasive, and would no doubt cause this court to consider carefully tiie grounds on which Bussell aud Mason stood. I think, however, that a careful review of tiiose authorities will show that the principle does not depend upon any sanctify which may be attached to the great seal, or any solemnity which the parchment inspires, but it grows rather out of the distinctions which exist in remedies in different countries. Tiie iron bars which separate tiie jurisdiction of courts of common law and the courts of chancery often induce the belief that there is really something in an instrument, when, if the party come in at another gate or door he would find no resistance. Fortunately in Texas we have no such divisions. Our battles are all fought upon principle. 5To ammunition is wanted in taking the outposts. And if a citadel be not well guarded it surrenders to tiie assailant, who has the better right, regardless of the manner of the attack.
    The courts of Mew Torlc have followed the courts of England, and place letters patent on the same footing with records, and hence deduce all the consequences which are applicable to a record, viz, that it cannot be attacked collaterally except for palpable want of jurisdiction over the subject-matter, or else for fraud, aud then only in the court where the judgment is rendered. This is precisely the argument which was so ably urged in 'the fraudulent laud certificate cases.
    It seems to mo that the reading of the case of Bragnell and Broderick only needs to be read to satisfy the court that the whole question has been one of jurisdiction and, not of principle.
    And were there a possibility of mistaking the principle in Bragnell and Broderick, all difficulty is removed when we carefully consider the more recent cases of Stoddard and Chambers and Bissel and Penrose. (2 Howard, 284; and 8 Howard,' 317.) These cases leave no doubt that whatever shows that the patent is void may be shown dehors the record by any one having a title. The case of Bledsoe v. Wells, 4 Bibb, 329, is admitted to be different, but it is overruled by this court in Bussell aud Mason.
    
      V. E. Howard, for appellee.
    I. The court struck out the plea which set up the forfeiture of the land, on the ground that there could be no forfeiture until Mansola had been regularly prosecuted and convicted of the offense. There can be no doubt that the decision was correct. Under tiie Constitution of the Bepublic no one can “be deprived of life, liberty, or property but by due “ course of law.” (See Decl. of Bights, secs. G and 7.) The provisions of the Constitution of the State are the same, if not more stringent. (See secs. 8 and 16, Bill of Bights.) Due course of law means by due course of the common law, bj~ which a party must be indicted and regularly convicted by a jury before a forfeiture of his property can be had for a political offense. It cannot be inquired into collaterally. (2 Kent’s Com., p. 13, note B; 4Hill, 143, Taylor v. Porter, a well-considered case; 3 Stoiy Const., secs. 1783-4; Id., 1773.)
    II. The decision of the judge that none but the State could assert a forfeiture or enter for conditions broken is amply sustained by the authorities. There must be a regular proceeding in the nature of office found, both by the principles of the common law', Spanish, and Mexican law.' (Mitchell v. United States, 9 Pet. B., 742.)
    It is the principle of our Constitution that no one shall be deprived of his property but by ‘ ‘ duo course of law. ” It is laid down by all the authorities, both English and American, that whenever the subject or citizen is put to his action, tlie king or Government must resort to office found, or some other similar judicial proceeding. If the grantor does not choose to assert the forfeiture by entry, what right lias a third party to set it up? Under the rule attempted to be established a grantee might"be ruined by a multiplicity of suits and yet prevail in every one of them. If any holder of scrip may locate for conditions broken, Lite, grantee of a Mexican title may have his land located as often as he gains one suit, and be immediately subjected to another location and suit, without any limit as to the number, l’he law does not tolerate any such monstrosity. It would be altogether destructive of property and the peace of society.
    It is equally well settled that where a patent, a grant, has passed the great seal, where there is jurisdiction to grant, it cauuot be set aside by a collateral proceeding except for defects appearing on its face which render it void. (.lack-son v. Lawton, 10 Johns. B., 23; Jackson v. Ilart, 12 Johns. B., 82; 13 Pet. B., 450; G Cow. li., 281; The People v. Maurau, 5 Denio, 389.) The last case was decided in 1848, and is an able review of the authorities. It was alleged that the patent was void because it did not contain a reservation of mines; because it did not show the notice of the grant required by law; because it was a grant for land under water, which coidd only be made for purposes of commerce, and was not so granted; because it did not show that the grantee was a party authorized to take under the statute. The court held that all tiiose matters were dehors the pateut and could not be investigated collaterally. The reason is that a patent or public grant, being- matter of record, cannot be avoided except by a direct proceeding of record. (Bledsoe’s Devisees v. Wells, 4 Bibb. 329.)
    It would be contrary to every sound principle to compel a party to be prepared at all times to prove up everything required by law previous to the emanation of a patent. Such a proceeding can only be instituted at the instance of the Government and by a direct suit. Snell is the uniform language of the decisions.
    Defects existing in a grant which do not render it void on its face cannot be taken advantage of by a subsequent locator whose rights did not accrue until after the grant-. There must be a previous equity. (Stringer®. Young, 3Pet. B., 337 ; Hoofnagle ®. Anderson, 7 Wheat. B., 212)
    Mere irregularities, abuse of .authority, would not avoid the grant, unless there was a positive law declaring it void for these reasons, although the officer might be personally liable. (Stringer®. Young, 3 Peters, 339; Taylor v. Brown, 2 Crunch, 234; 5 Denio, 8S9.)
    This conclusion is strengthened, with regard to our titles, from the provisions of the instructions to the Mexican commissioners, which render the commissioner personally liable for any violation of his duty under the colonization law. (See Decrees of C. & T., p. 73, art. 2S.) If the commissioner had jurisdiction to grant, his decision as to all the proceedings necessary to the grant are final and conclusive, unless fraud can be shown to which the grantee was a party. (Boss v. Barland, 1 Peters, G.iS; 7 Wheaton, 218.) If there is any abuse it is a matter between the Government and its officer. (6 Peters, 729.)
    III. There are some expressions in several decisions in which the judges assert that grants contrary to law are void. But it will be found in all these cases that there was no authority to make any grant. There was a want of jurisdiction, not an abuse of authority. Such was the case of Stoddard ». Chambers, 2 Howard, where the patent was held void because the land was reserved from sale and not subject to grant. See the discussion of this subject and a review of Hoofnagle ®. Anderson and Polk’s Lessee ®. Wendal, G Peters, 730, and a late New York case, 5 Denio, 389. '1’Iiey all go on the ground that, when jurisdiction is given to the officer, violations of the law and irregularities cannot avoid (he grant. They all assert the doctrine that these irregularities are cured by the patent, which merges all previous proceedings. The doctrine of Hoofnagle and Anderson is now the rule of decision in the Supreme Court of the United States as well as in the State courts.
    
      
      JR. Hughes, also for appellee.
    The questions!» this case are conclusively settled by the case of Hancock v. McKinney. The hind in contest was'granted by Coahuila and Texas upon the subsequent condition of cultivation aiid payment of clues; and the defendant claims under locations made in 1S-Ü), which is a file closer of the first proposition.
    The second is equally closed, for that which is attempted to be set up as a bar by this proposition is a forfeiture incurred under the 8th section of the general provisions of tiie Constitution of the Republic. (Ilart. Dig., p. 37.) And as to this as well as all other forfeitures, tiie Constitution of the"State has provided that the legislature are to provide “ a method for determining what “lands may have been forfeited or escheated.” (Art. 13, sec. 4,'Hart. Dig., p. 80.)
   Hemphill, Ch. J.

This is an action for the recovery of a tract of land. The plaintiff (who is appellee in this court) claims under a title issued by J. Antonio Navarro, one of the commissioners of the State of Coahuila and Texas for the distribution of lands, and'the 'defendant claims by virtue of locations under land certificates issued since the revolution. Judgment was given for the plaintiff, and the defendant, having appealed, assigns' for error :

1st. The ruling out by the court of that portion of defendant’s answer excepted to by the plaintiff. That portion of the answer set up a forfeiture of the land claimed by the plaintiff, on tiie grounds that the original grantor, Mansola, had not lived upon, cultivated, and improved the same, and also that the grantee had forfeited the land by abandoning the country to avoid a participation in the struggle for independence in the war between Mexico and Texas. We are of opinion- that there was no error in this ruling of- the court. The location was made by the defendant in 1849. The Constitution of tiie State, in section 4, article 13, requires the legislature to provide a method for determining what hinds may have been forfeited and escheated. No law prescribing the mode of ascertaining forfeitures has yet been adopted. The courts have not been authorized to permit, at tiie instance of individuals, inquiries into the causes of forfeiture of grants, and to annul them or recall the titles on proof that the forfeiture has been incurred; and there was no error-in striking out such portions of the pleadings as would have let in proof to establish facts of this character. That individuals cannot, since the adoption of tire State Constitution, by location, assert any right to lands previously granted on the grounds simply of forfeiture, was fully decided in tiie case of Hancock v. McKinney, and the principles of that decision arc conclusive in support of the ruling of the court now under consideration.

2d. The next assignment is that the court erred in permitting the plaintiff to introduce a translated copy of the original title to Mansola on deposit in the land office, certified to by E. Sterling Robertson as a correct translation, and with the certificate of tiie Commissioner of tiie General Land Office. The only ground in support of this objection deserving notice is, that the translation was not certified to by the commissioner but only by tiie translator of the General Land Office. The law declares that translated copies of all records in the land office certified to under tiie hand of the translator and the commissioner, attested with the seal of the General Land Office, shall be prima facie evidence in all cases in which the originals would be evidence. The instrument in question was certified as a correct translation by the translator in his officii11 capacity, and the commissioner certifies to the official capacity of the translator. The statute requires that tiie translated copies must be certified by both the translator and the commissioner, but does not prescribe that they shall attest tiie same facts. The mode in which they have respectively certified to this document is a compliance with the spirit and intent of the law, and as such was sufficient to authorize it to he used as evidence. The rational presumption is, at least the fact might be, that the commissioner is unacquainted with tiie Spanish language. There is no law requiring him to have such knowledge; and if lie hare it not, it would be unreasonable to require him to certify as a fact that of which he is wholly ignorant. The correctness of tlie_ translation must depend on the fidelity and skill of the translator; and his official certifícale is the real basis upon which the credit and admissibility of the instrument. are supported. This document is certified in the customary mode of authenticating translations from the land office; and in the case of Herbert v. Bartlett's Ííeirs the objection now raised was well considered and adjudged to he without foundation ; and we are of opinion that the court was right in permitting the instrument to be read in evidence to the jury.

3d. The third assignment is involved in the first and need not be separately considered.

4th. The fourth assignment is the alleged error in refusing to give the jury the first, second, and third instructions asked by the defendant.

The first instruction enunciated, in substance, that it was for the jury to determine on the legal effect of the grant or title of the plaintiff. No argument is required to show that, as a legal proposition, this has no countenance in law.

The second was an abstract proposition not applicable to the facts of the case, and, if given, would have been well calculated to mislead the jury. If the vesting of the fee, under the grant, had depended upon the performance of some precedent condition, then'the instruction would have applied. But the conditions of this grant wore subsequent. The fee was vested, though subject to defeat on failure to perform the conditions. The title is perfect in the sense in which that term is used in contradistinction to imperfect or inchoate titles, that is, it required no further act of the granting power to its perfection.

This case was so fully discussed in cases decided at the last term that a reference to them will he sufficient without further examination. (Paschal v. Perez, 7 Tex. R., 348; Hancock v. McKinney, Id., 384; Edwards v. James, Id., 372.)

The third instruction asked is that the commissioner had no power to issue a title upon other conditions than those contained in the concession of the Government. The special variance between the concession and title issued by the commissioner is not stated. In the argument it was contended the title dispensed with the payment of dues required by the concession. There is some confusion relative to this matter on the face of the proceeding. The party, as it appears from the very obscure statements of bis application, petitioned for two sitios and a labor. But one sitio and labor were granted. The executive, in liis decree, recites that the concession is made in virtue of the information given by the ayuntamiento, and in accordance with the colonisation law of the 24th March, 1825, and with the 12th article of decree No. 128.

The information from the ayuntamiento was to the effect that the applicant was a native and resident of Bexar; that he was forty-two years of age; that he had given his services freely in all that had been required, and when the city was in danger from the barbarous Indians, bad voluntarily presented himself with arms for its defense. Under the 12th article of decree 128, (referred to in tlie concession,) the residents of the towns frontier to the savage tribes were.entitled to a remission of a portion of the dues on the grants of hinds, and a resident of forty years was exempted from the payment of any dues. The facts upon which the application rested, and which are recited in the concession, show that the benefits of the 12th article were asked for and intended to he granted. But notwithstanding such was the manifest intention apparent on the face of the grant, and such the positive requisition of law upon the facts in the petition, yet the executive directs the commissioner to classify the lands to show what the grantee must pay tire State, and for which payment the executive concedes the rights designated in the 22d article of the colonization law. The Governor had no authority, under the facts of this case, to impose, as a condition of the grant, the payment of any dues. By the 12th article of decree, 128, in" conformity with which the grant was intended to be ¡nade, the applicant was exonerated from such payment. The commissioner, in the title, with reference to the effect of the 12th article of the said decree upon the-grant, declares that the grantee Was exempted from making any payment or acknowledgment to the State.

This declaration was,^beyond question, in conformity with law, and the implied condition in the concession that tlie grantee was liable to tlie payment of dues was illegal. The assumption of power in imposing such a condition was unwarrantable and not authorized by the law of the land. The grant itself was issued by competent authority, in the legitimate exercise of power, and is not vitiated by a condition which in contemplation of law is a nullity, and which should-bo treated as surplusage and without force or ell'ecf. The commissioner did not exceed liis power in fading to embody snob condition in the title; and there was consequently no error, 'under the faets of the case, in the refusal of the court to give the fourth instruction.

6th. The iifth ground for reversal is that (he court erred in giving judgment for the plaintiff upon the papers and facts before the court at"the trial.

This assignment lias not been discussed by tlie defendant. The grounds which might be urged in its support arc not very obvious. The facts 'and the papers have been considered with some attention, and if there he error in the judgment it is not apparent. The title to Mansoia was perfect, and his interest had, by conveyance, vested in tlie plaintiff. It was prior in time and superior in right to that of tlio defendant, and, on the faets, there seems no valid objection to the recovery.

There is a point raised in the brief which may with propriety be considered under this assignment, and it is this: that the title was only conditional and did not pass, the fee to tlie grantee; that the laud was specially reserved to the use of the General Government, and the grantee accepted it with this condition, and that the fee vested in Texas at the revolution. The words of the concession are, in substance, that the land is granted in the place designated by the petitioner, or in that which may best suit him, after the designation by the commissioner of the General Government, of a sufficiency for the payment of tlie debts due from the State to the Federation.

From 1.1 lose terms I should conclude that the laud designated by the petitioner, if finally accepted by him, was conceded without reservation; but if his selection was elsewhere it must be in subordination to the prior right of designation for tlie use of and in discharge of the debts due to tlie Federal Government. But the reservation was not so understood by the party or the commissioner. Tlie land designated by the applicant was deeded to him by title of possession, but with the express condition that it was subject to selection by the General Government, in discharge of its demands against the State. The title conveyed all the right that was in the State to tlie grantee, subject to de-feasance on a most remote and improbable contingency, and which did not arise during the subsequent existence of the Government, under which alone its occurrence was possible.

By the revolution this possible contingency against the perpetuity of tlie grant was brought to an end. The debts from the State of Coalmila and Texas and the demand of the Federal Government against tlie State, so far as they affected the Republic or State of Texas, were by the revolution alike extinguished. If the State or Republic became a creditor by tlie revolution, she became likewise a debtor; and it is not very probable that siie would select her own lands to pay her own debts, or that she would enforce any real or supposed liens against this or other lands granted since 1831 in payment oí such debts. If it'be even granted that she became a creditor by the revolution, yet no private individual lias authority to collect tlie demands due the Mexican Government, or to claim any lands by virtue of any contingent, supposed, hypothecary interest or right of choice which that Government may once have had in such lands, to secure the payment of its debt. To illustrate this point, let us suppose that the Mexican Government had continued to exist and that tlie laws, customs, and usages authorizing individuals to denounce lands (once granted) as subject to regrant had remained in force; yet no individual could have set up any pretension to a regrant of this laud on tlie ground that the General Government had a right, if it chose, to have the land appropriated to the discharge of its obligations against the State. A denunciation on such grounds would have been at once dismissed.

Note 4i — Rivers v. Foote, 11 T., G62; Johnston v. Smith, 21 T., 722; Kilpatrick v. Sisneros, 23 T., 113; Bowmer v. Jlieks, 22 T., loo; Lufcer v. Mayfield, 2G T., 325; Howard v. Colquhoun, 28 T., 131.

K ote 45. — S pillars v. Curry, 10 T., 143.

Note 40. — Sun Antonio v. Lewis, ante G9.

Note 47. — Fulton v. Bayne, 18 T., 50.

• The remaining grounds, that the court, erred in the refusal to grant a new trial, has been disposed of in considering the previous causes for the reversal, and there being no error in the judgment, it is ordered that the same be affirmed.

Judgment affirmed.  