
    Howard and Wife v. Perry.
    Articles 1839 and 2175 of the Digest are cumulative, and the chief clerk of tho land office may di«charge the duties of the commissioner in any event contemplated by either statute; and when he has acted, the presumption is that some one of the contingencies existed on. the happening of which he was authorized to act.
    Where the equitable title of a colonist or settler is confirmed by the Legislature, (lie confirmation relates back to tho inception of the equitable title, notwithstanding the act of confirmation may save the rights of third persons. (Note 44.)
    A pretended title which consisted of the colonist’s petition, followed by a blank for the certificate of the empresario or his agent, that the interested party was a colonist, &e., followed by the commissioner’s order*of survey, which did not name the interested party, and which contained a blank for the name of the surveyor, followed by a blank for the locality, description, metes and bounds, declaration of quality and possession of the land, followed by tho customary conclusion, and signed by the commissioner and attesting witnesses; a survey was admitted to have been made: Held, To have been a moro blank form, such as the commissioner, on some occasions, left in the care of tho empresario, to facilitate the colonists in procuring their lands.
    By virtue of a genuino hoadright, tho locator acquires a vested legal right, which is protected by the constitutional guaranties of the right ot property. (Note 45.)
    The survey of a deputy surveyor, although made for himself, ou a certificate belonging to himself, when approved by the district surveyor, became the act of tho latter, and was so far valid.
    A surveyor could not bo compelled to survey, on a first or second-class hoadright certificate, unless the certificate was accompanied by a certificate of the county clerk or Commissioner of the General Land Office, that it had been recommended as genuine; but a proper survey, upon a genuine claim, is valid, whether such certificate of its having been recommended was presented to the surveyor or not.
    A surveyor cannot be convicted under article 1983 of the Digestif the certificate is recommended as genuine.
    Where the statement of facts showed that the plaintiff admitted on the trial that the beadright certificate, under which the defendant claimed, was “ good,” it was held that the statement must be taken as an admission that the certificate was recommended as genuine.
    Appeal from Fayette. This suit was brought by the appellants, in 1S40, to recover of one Hicks, who was in possession, a league of Jancl, claimed by the plaintiffs, in right of the wife as heir of John nibbins. The appellee, Perry, •under whom Hicks was in possession, defended. The plaintiffs claimed that in 1834 and 1835, John Ilibbins petitioned for and had surveyed the league of laud in question; and that it was granted to him as a colonist in Austin’s colony. The defendant claimed title to the land by virtue of' the hoadright certificate of Luke Prensall, for one league of land, issued by the board of laud commissioners of Sabine county, in'February, 1838, located ou the laud in question, in June, 1839, and surveyed in May, 1840.
    The plaintiffs gave in evidence a certified transcript from the General Land Office of their alleged original title, which consisted of the petition of John Hibbins, addressed to the commissioner of Austin’s colony, representing that he had been received by the empresario as a colonist; that he is a-man; that he had come into the colony with his family to locate, &e.; and asking that a league of land be granted him. This petition appeared to have been referred to the empresario, for his approbation and the requisite information. Then followed a blank; after which is what purports to be the order of survey, as follows: “In view of the information given by the agent, Samuel M. Wil-liams, in the foregoing statement, I admit this petition according to law, and order that a survey of said land be made by tlie surveyor, Mr. —-, for the purpose of issuing to the party interested the corresponding title. Town of Austin, December 5th, 1S32. (Signed,) Migl. Aroineiga.” Then followed another blank; after which was the following: ‘‘Given in the town of San Felipe De Austin, on the— day of December, 1832, which I sign, with two assisting witnesses, according to law;” signed by the commissioner and the assisting witnesses.
    The plaintiff then introduced a translated copy of an instrument in Spanish, from the General Land Office, containing tlie field-notes of tlie survey, and purporting to be the title of possession, in the form usually employed in titles issued by the commissioner of that colony. This was accompanied by the certificate of the Commissioner of the General Land Office, that the field-notes of the survey of the league of land, made by William R. Hensley for John Hibbins, were embodied by him in the blank left in the original title sigued by Aroineiga, in tlie same form of language as was required at the time the same should have been done; and that the blank was so filled up by him in accordance with the requirement of joint resolutions of the Congress of the late Republic approved on the 2d day of February, 1844. The "joint resolutions referred to were then given in evidence, and are as follows : “Re it resolved,” &c., “that the Commissioner of the General Land Office be and is hereby required and authorized to embody the field-notes of the league of land surveyed by William R. Hensley, deputy for Thomas H. Borden, surveyor, on the east bank of the Lavaca, for John Hibbins, into tlie blank left in the original title, which was signed by Miguel Aroineiga in the month of December, 1832; and that the said commissioner preserve the same form in relation to the language to be used in filling up the blauk as was required at the time the same should have been done.
    “Seo. 2. Be it further resolved, That the Commissioner of the General Land Office issue to the heirs of John I-Iibbius, deceased, a copy of said title, duly certified, after the same has been so amended, which may serve them as a valid and legal title to the lands therein set forth, and of which they are in possession: Provided, however, That this act shall not be so construed as to impair or affect the right of any person or persons claiming the land-adversely to said Hibbins or his heirs.” Approved February 2d, 1844.
    The genuineness of the documents introduced, and that the commissioner Aroineiga did the acts purporting to have been done by him, was admitted; it was also admitted that the land was surveyed, and that the field-notes embodied in the plaintiff's title wore the field-notes of the survey; and that the proper fees wore paid by Hibbins to tlie officers entitled to receive them.
    Tlie defendant offered in evidence a copy of his certificate and survey from the General Laud Office, certified by S. Crosby as chief clerk, to the admission-of which the plaintiffs objected; but the court overruled their objections and the copy was given in evidence. The defendant then introduced in evidence the depositions of the county surveyor of Colorado district, and of Samuel M. Williams, agent of the empresario, Stephen F. Austin, acting as such at the date of the plaintiff’s title, taken in answer to interrogatories.
    By the former, the defendant proved the location of the certificate upon the land in question in June, 183!), and the subsequent survey. The witness also testified, in answer to cross-interrogatories, that the survey was made by the defendant as deputy surveyor for himself; that he had at the time an interest-in the certificate.
    It was admitted that the certificate under which the defendant claimed was a good certificate; that it was located on the land in question; surveyed by the defendant for himself; and that the survey was approved and recorded by the district surveyor in 1840.
    The witness Williams testified that he was familiar with the regulations and manner of transacting the business of the land office in Austin’s colony, the same having been under his management from 1824 to 1835; that on some’ occasions tlie commissioner of the colony left blanks with his signature in the care of the empresario, to facilitate the colonists in procuring their titles when the commissioner was absent; that it was indispensable that the commissioner should appoint a surveyor to survey the land ; the surveyor, under an order, surveyed a district of country, and made returns thereof to the land office; and from the plots or information derived from the surveyor, the colonists made their selections. It was required of a colonist, in order to obtain land, to make a declaration to the empresario of his name, age, where from, whether married or single, &c.; that before any title could, issue to a colonist, it was an indispensable prerequisite that, on the petition of the colonist, there should be a declaration to the commissioner, signed by the empresario or his agent, that the interested person was a colonist., a man of good habits, &c., and that no title issued without it; that this declaration should have occupied the first blank in the plaintiffs’ copy, (which was shown him ;) that the second blank, had a title been extended, should have been filed with the description, locality, metes and bounds, declaration of quality, and possession of the land. This description answers to document No. 2, introduced by the plaintiffs. The witness further testified that no title was issued to John Hibbins. but that it was refused him, in consequence of his having falsely represented that he was a married man.
    The parlies, by consent, submitted the case to the court; there was judgment for the defendant, and the plaintiffs appealed.
    
      Neill and Hamilton Green, for appellants.
    
      Lewis %• Rivers, for appellee.
   Wheeler, J.

A question of the admissibility of evidence is presented, which may be disposed of before proceeding to consider the merits of the case.

It is objected to the admissibility in evidence of the copy of the defendant’s certificate and field notes from the General Land Office, that they are attested by the chief clerk, and not by the commissioner.

The act of the 14th of December, 1837, section 3, (Hart. Dig., art. 1839.) provides that, in the absence of the Commissioner of the General Land Office, or in case of his inability to attend to the duties of his office, the chief clerk shall perform all the duties appertaining to the office. The act of 1S46, (Hart. Dig., art. 2175.) further provides that, “ in case of the sickness, death, or resignation of the Commissioner of the General Land Office, it shall be lawful for the chief clerk to act, and perform all the duties required of said commissioner.” We regard the latter of these statutes as merely cumulative ; consequently, in any event contemplated by either statute, it is competent for tlie chief clerk to perform the duties appertaining to the office of commissioner. And where he has acted in this capacity, the presumption is that some one of the contingencies existed on the happening of which he was authorized to act. The objection to the admissibility of tlie evidence, therefore, is not tenable. (Hart. Dig., art. 1841.)

The determination of the merits of the case requires a consideration of the relative strength of the respective titles of the plaintiffs and defendant. For it is evident that the joint resolutions gave a title to the heirs of Hibbins from their date, which will be good as against the defendant, if he liad not a right to the land previously acquired. But if, on the other hand, Hibbins, in 1832, When his alleged title bears date, acquired an equitable title to the land, tlie legislative action in 1844 would relate back and operate a confirmation of his title from its inception, and would supersede the intervening equitable title of the defendant, acquired by his location and survey in 1839 and 1840. (Warren v. Shuman, 5 Tex. R.; Lee Bois v. Bramell, 4 How. U. S. R., 449 ; Mills v. Stoddard, 8 Id., 345.)

The .material inquiry, then, is, had the plaintiffs an equitable title to the land by virtue of the alleged grant to Johu Hibbins, in 1832?

It. is manifest, from the facts disclosed by the record, that the pretended title, to Ilibbins was but a blank form, like those which the witness Williams testifies -were sometimes left in blank by the commissioner to facilitate ihe extending of titles to colonists in his absence. The only part of Ihe instrument which has even the semblance of an act conferring a right is what purports to ho the order of survey. This professes to be made oil the “information given by the agent, Samuel 31. Williams, in the foregoing statement.” That foregoing statement, however, is wanting; and where it would have been placed, if it hail an existence, there is a blank. There is also a blank for the name of the surveyor. The supposed order of survey is evidently incomplete, a mere blank form, intended to be used for the benefit of any colonist who might present himself witli the favorable report of the empresario. The space between the supposed order of survey and the conclusion or attestation of the iuslniment would have beeu filed with the field-notes of the survey and the operative words of the grant if there had beeu a grant. The translated copy of the instrument in Spanish, from the General Land Office, aud which may bis described as document No. 2, answers to what should have filled this; blank to have constituted the instrument a title. But this document was made out by the Commissioner of the Land Office, in embodying the field-notes of the survey in Ute blank in the original instrument, by authority of the joint resolution of 1844, and, of course, liad no existence previous to that time.

Without resorting to the parol evidence on that point, the conclusion is irresistible, from the evidence introduced by the plaintiffs, that no title was, in fact, issued to Ilibbins. It is admitted that there was a survey of the'laud. But there is nothing in the record showing distinctly when and for whom the survey was made. It is alleged in the petition that it was made in 1834 and 1S35; yet the instrument introduced as the title bears date in 1S32. It is probable that Ilibbins had selected this survey, in anticipation of obtaining a grant, from plots of surveys in the Land Office, spoken of by tiie witness. He appears to have claimed the land embraced in it. However, it is at. best a mere naked survey of the laud, made, it may be, for Ilibbins, but without a legal order of survey, and, consequently, without the authority of law.

A mere survey, without an order of survey, was not a legal appropriation of the land. It did not sever it from the mass of the public domain. This survey and a blank form of a title are all that the plaintiffs appear to have had previous to the passage of the joint resolutions in 1844. That these did not constitute an equitable title or any legal claim to the land in question, is quite too clear to require illustration.

At tile time, then, of the defendant’s location and survey there had been no legal appropriation of the land, hut it remained vacant and unappropriated public domain, and. of course, subject to his location. By virtue of that location lie acquired an inchoate right, capable of being carried into a patent. It was a vested legal right, protected by the constitutional guaranties of the right of property. If it were competent for the Legislature, by retrospective legislation, to create a right, where none before existed, in one person to the prejudice of another, they have not done so in the present case. On the contrary, the saving contained in the proviso embraces and reserves the right of the defendant. IBs right, therefore, was not affected by the joint resolutions, and is of a character to enable him to maintain or defend an action for the laud; consequently, his is the superior title.

But it is objected to the. defendant’s survey, that it was made by and for himself. It, however, was approved by the district surveyor, and thereby became, in contemplation of law, his act.

It is further objected that the certificate of the defendant does not appear to have been certified, under the hand and seal of the clerk of the County Court or the Commissioner of the General Land Office, to have been recommended as legal and genuine, as required by the act of 1840. (Hart. Dig., art. 1983.J

Note 44. — Hart v. Gibbons, 14 T., 213; Mage© v. Chadoin, 30 T., 044. "Where there is a proviso saving the rights of third persons, they will not be affected by the act. (Hamilton v. Avery, 20 T., 012.)

In the case of Peacock v. Hammond, (6 Tex. R.,) the opinion was expressed— and we are satisfied of its correctness — that there was no necessity that 1 lie cer-tiiicatcof recommendation should be annexed to tlie headlight certificate; and that, when a survey is shown to have been made upon a certificate recommended as legal and genuine, it will be presumed that tlie officer did his duty, and acted upon tlie requisite evidence of the genuineness of the certificate.

But this court lias not decided, as seems to have been supposed, that if the licadright certificate was not accompanied by tlie prescribed evidence of ils having been recommended, tlie survey upon it would be therefore void. What we have decided on this subject is, that the surveyor cannot be compelled. to survey unless tlie prescribed evidence of tlie genuineness of the certificate be furnished him. (Bracken v. Wells. 3 Tex. R., 88.) But, in issuing tlie patent, the commissioner does not look to the evidence upon which tlie surveyor acted in making the survey, but simply to tlie fact of whether the certificate has been duly recommended. (Glasscock v. The Commissioner of the General Land Office, 3 Tex. R., 51.) The evidence required to be furnished the surveyor is merely for his information. It has no influence whatever on the question of right. And I have no hesitation in saying that a proper survey, made upon a genuine certificate will be valid, from whatever source tlie surveyor may have derived the evidence of its genuineness.

True, the statute declares that “any survey made contrary to tlie meaning and intent of this act shall be null and void. (Hart. Dig4., art. 1984.) And so it must be. But what is the true intent and meaning of the act? It is entitled, “Au act prohibiting tlie location of fraudulent land claims.” All its denunciations are directed against that class of claims, and were intended to ■be applied to none other. Hone other come within the intent and meauing of the prohibitions of tlie act. It was not its object or intent to destroy acts done and rights acquired by virtue of legal and genuine certificates; but its object was to afford favor and protection to these, by preventing tlie appropriation of the public domain by those which were fraudulent. To this end, evidence was prescribed which should afford tlie surveyor certain information that the certificate was genuine; and severe penalties were denounced against “any surveyor offending against tlie true intent and meaning of this act.” (Hart. Dig., art. 1983.) I regard the act, in so far as it prescribes tlie evidence on which the surveyor shall act, as only directory; and I have no conception that a surveyor, who, upon his own knowledge of tlie fact, however acquired, should survey upon a certificate which liad been duly recommended, would, in tlie least, offend against the “true intent and meaning” of the act. (3 Ret. R., 320.)

I have expressed my opinion more fully on this subject than, perhaps, the present case required, for the reason that doubts appear to have been entertained, when, in my opinion, there cannot, rationally, a doubt exist as to what is the true construction of the statute.

Finally', it is objected that it does not appear that the defendant’s certificate had, in fact, been recommended.

It appears that the plaintiffs admitted, on the trial, that it was a good certificate. By this, it must have been intended that it was a certificate which had been duly recommended; for, otherwise, it could not have been said to be a “good” certificate. Ho other sensible meauing can be attached to the word “good,” as here employed, than'that it was used to denote a certificate which was good in law, in contradistinction to such as are deemed fraudulent and void.

We conclude that, at tlie time of the defendant’s location and survey, the land was vacant; that, by virtue of that location and survey, he acquired a right to it, and that that right was not divested by the joint resolutions of 1844.

Judgment affirmed.

Note 45. — Sherwood v. Fleming, 25 T. Supp., 408; Fowler v. Allred, 24 T., 184; Wright v, Hawkins, 28 T., 452.  