
    Robertson's Adm'r v. Teal's Heirs.
    It is not proper for the District Court to render judgment pro forma; but such a judgment will be revised on appeal.
    The recognition of a colonist by the is'-ue of a certifícate to him by the agent of the empre-sario, in the usual form, raises tho presumption that the land on which he settled was within tho limns of that colony.
    The fact that a particular section of country was comprehended within the limits of the colony contract of Austin and Williams, until tho rights of Robertson were established by the decree of the 29th April, 1831, is public and notorious. It is a matter belonging to the public history of the times. It exists, or should exist, for perpetuation among the public archives. It. was involved in the litigation prosecuted against the Government by the-empresai ins of what is generally known as Robertson’s colony, and of (he colony of Austin and Williams, and it, as a fact, is as much entitled to judicial recognition as any other matter on tho records of history.
    The fact that Teal was settled within tho limits of tho colony of Austin and Williams is clear; and that he settled on this land in good -faith, and without objection on the part of the empresarios Austin and Williams, who alone had the right to object, most he presumed until tho contrary is shown; that he had no survey, order of survey,amparo, or title of possession was not his fault. Tho coi ti-iicato of tlxwigont of the empresarios shows inferential ly, and tho fact is historically true, that no commissioner had, up to tho change of empresarios, been appointed for the extension of titles in the colony of Austin and Williams, and consequently no steps could he taken for tho severance of the land from the public domain.
    
      Quero? Whether the extension of a title to ono colonist was conclusive against the equities of another claiming by prior settlement; but, if this were so, it would hot apply to a preference given to the empresario himself, because of tho confidential relations which existed between him and tho commissioner for extending titles, and because of liis duty to respect tlio rights of settlers.
    In all colonization contracts there was a stipulation, cither express or implied, that the rights-of individuals, previously acquired, should be respected; and although, where a commissioner had been appointed, such stipulation might bo restricted to titles, inceptive or complot o, issued by the lawful authority, yot whore no commissioner had been appointed, in consequence wliereof no title, inceptivo or complete, could have been obtained by prior occupants, such stipulation would be extended to equities derived from settlement alone.
    A claim of priority by virtue of settlomont was not susceptible of transfer, so as to prevent a third party from taking the land subsequent, to its abandonment by the first settler.
    
      Quere9 Whether an, empresario was capable of receiving a grant of land as a colonist in his-own colony.
    Teal settled within iho limits of Robertson’s colony on the land in controversy in 1831; on the 2Uh of May, 1834, a certificate was issued to him by the agent of empresarios Austin and Williams; lie continued to occupy tlio land until the present time, but never received a lido, claiming to hold the land by virtuo of his occupation and of the location of Ids licadright certificate, obtained after the devolution. On tho29ih of April, 1834, prior to the recognition of Teat as a colonist by the agent of empresarios Austin and Williams, the decree No. 235 was made, restoring Robertson to his rights as empresario, and in 1835 a title for the land in controversy was extended by the commissioner of Robertson’s eol-onyto bobertson himself as a colonist: ITdd, That the land belonged to Teal.
    Appeal from Robertson. This was an action for the recovery oí a league of land. The allegations of the plaint ill', S. C. Bobertson, were in the usual form.
    The defendants filed an original and three amended answers. Among other matters it was alleged that their ancestor, John Teal, was received and accepted as a colonist by the empresarios Stephen F. Austin and Samuel M. Williams ; and that the said Teal selected and pointed out the tract of laud in controversy for his head right; and that the said selection was allowed him by the said empresarios; and that lie had retained possession thereof ever since, and had never for a moment abandoned his claim ; but, owing to the fluctuations of Government and the strife between said empresarios and the empresario S. C. Kobertson, he had been unable to obtain title; that on the 29th April, 1834, the said S. 0. Kobertson was recognized by the Government of Coaliuila and Texas as the empresario of the district of country in which the land is situated; and that he was acting as such empresario when the title under which he claims was, on the 5th January, 1835, extended to him as a colonist. The defendants filed as an exhibit a certificate, of the agent of the empresarios Austin and Williams, recognizing their ancestor John Teal as one of their colonists, introduced under their contract with the Government for the settlement of eight hundred families; that .lie was a married man, and his family consisted of six persons; and that he might receive the quantum of land allowed him by the law as soon as there should he a commissioner appointed for that purpose by llie Government, provided lie should present himself to the commissioner in proper time after his arrival. Dated at Texoxtitlan, 24th May, 1S34, and signed by Spencer H. Jack, agent for tho commissioners. By agreement between the parties it was admitted that the land claimed was comprehended within the empresario contract of Leftwick in 1825; that this was after-wards transferred to the Nashville Company, and subsequently to Sterling •C. Kobertson as empresario, according to the terms of filie decree of the Congress of the St ate of Coalmila and Texas, No. 2S5, on the 29th April, 1834; that Win. II. Steele was the commissioner of the said colony; that filie title uuder which the plaintiff claims was made by the said commissioner; and that the said plaintiff, Sterling C. Kobertson, exercised the functions of empresario of •the said colony from the 29th April, 1834, until the Revolution in November, 1835; and that by virtue of this title the said Sterling O. Kobertson took possession of the land and had tenants residing on the same until the commencement of this suit. It was further agreed that one Hiram Friley was the first settler and occupant of the league of land claimed by plaintiff; and that the plaintiff bought Friley’s location aud settlement right to said league of land, and paid him a valuable consideration for it; Friley’s improvement and settlement was made in 1824; it was in virtue of this purchase that Bobertson claimed said land when it was granted to him ; Friley located in another place, where it was granted to him; that John Teal, the defendant’s ancestor, settled upon the land in 1831; that on the 24Ui May, 1S34, the said Teal received the certificate (the substance of which is previously stated) from the agent of the empresarios Austin and Williams; that he remained on the land from the time of his settlement in 1831 till his death; "and that his heirs continue to reside ~on the landancl have made some improvements ;`` that i~hen the land ollice was opened in i8~ rj~e~Ll obtained a certificate for a Icague audi labor of laud, as the head of a family; that the said certificate was placed in the hands of the county surveyor, to be located and surveyed on said land ; tifa said location was at first refused, hut that the survey was finally made and lime field-notes approved ; that Friley had left the laud some year or more whvmi Teal settled thereon, previous to which one Dali had lived there, but without any claim or title ; and that when the land was surveyed, Teal claimed the land and demanded the field-notes. Upon the agreed state of facts iufig~nent was given for the defendant pmo fornsa for the revision and adjudication of the Supreme Court. To which judgment the plaintiffs excepted and prayed ami appeal.
    H. J~ .Tewett, br appellant.
    GiZlespie appellees. HEMPHILL, Cii.
   Hemphill, Ch. J.

The entryof juclgmentsprofornza has been heretofore the subject of animadversion, and the objection is still stronger wheti the judgment is expressed to be thus given, that the matter may be revised and adjudicated by the Supreme Court. An appeal from a judgment is the right of a party. It is not in the power of a court to reserve a matter, without judg- ment thereon, for revision by the appellate tribunal, nor to send it up of its own motion, even after judgment, for review and adjudication. Bitt as an tppeal was formally taken in this case, this entry in the j uiclgment may be treated as ~urp1nsage, aiid as not aftbcting the right of the cause to be iii this court or our jurisdiction over the same. There are

some facts affecting tile rights of the parties in this cause which are omitted, or which are left to inference, when they should have been dis- tinctly stated. For istance, it may be inferred that tile territory within which the laud lies was once embraced in the empresario contract of Austin and Williams; otherwise, how could Teal be recognized as one of tile colonists of that enterprise? His recognition as one of the cQlonists raises the presumption that the land on which he settled was within the limits of the colony. But this is not specifically specially agreedupon. The fact that this section of the coniltry was compie]iended within the limits of their contract from February, 1831, until tile rights of Robertson were established by the decree of tIm 20th April, 1834, is public and notorious. It is a matter belonging to tile public history. of the times. It exists, or should exist, for perpetuation, among the public archives. It was involved in the litigation prosecuted against tile Gov- erument by the enipresarios of what is generally known as Robertson's coloiiy and of the colony of Austin and Williams, and it, as a fact, is as much entitled to jncliciai recognition aiid to become tile basis of judicial action as any other matter on the records of history. The fact

that rI~ea1 was settled within the limits of the colony of Aust in and Williams is clear, and that lie settled on the laud in good faith and without objection on the part of the empresarios Austin and Williams; who alone had the r~ght to object, most be presumed until the contrary is shown. And that Bobertson had no claim as empresano or otherwise over this land until more than two, perhaps three, years after the settlement by the defqnclaiit is epiahly beyond question. r1~hat Teal had no survey or order of survey, amparo or title of possession, was not his fault. The certificate of the agent of the euiprcsa- rios shows, inferentially, mid the fact is historically true, that no comnih~ioiicr had, up to the chauge of empresarios, beau appointed for the extension of tit lea in the colony of Austin and Williams; aiid eonseqnently n~ steps could be taken for the severance of the land from the public domain and tile appropria- tion of it by legal formalities to himself.

Tile que~tio]iupon this state o~ facts is, whether the defendant had such an equity in liis possession as should have been respected by the empresario Bob-ertson in proceeding to fulfill liis contract of colonization, and especially whether the attempt of the latter to appropriate the land to his own use was not so subversive of the first principles of justice, and in such diametric opposition to the rule of conduct prescribed to him in the premises by liis official situation as to divest him of any right in the land or any power to set up his title against the superior equities of the defendant. Had any one of the colonists of Bobertson claimed and secured a grant, of this land the right of the defendant and his equities would have been doubtful, at least the decision against. Teal might not have been subject to revision or open to examination. The empresario in such a controversy would be presumed to have been impartial, and to have used no unauthorized means to secure the land to either party. It is true that the empresario did not have the power to issue titles; that belonged to the commissioner. r>ut he was consulted prior to the issue of a grant, and as a general rule was requested to report whether the applicant was a colonist, and, if a particular tract had been designated, to report also whether the land was vacant. In Austin’s colonies there were cases in which the empresnrio’s report that lands onee granted had been forfeited was deemed sufficient to authorize a regrant of the said lands. By virtue of his official situation he had a vast influence in the distribution of lands within the limits of his colony, and the exercise of his power, especially when in favor of himself, must, to be lawful and operative, be not obnoxious to the charge of having violated the legal rights or the strong equities of others.

But the right of the defendant to this land will be still more clear and conclusive, when we consider that it was a general if not a universal stipulation of colonization contracts that the rights of individuals to lands previously acquired should be respected; and, without any violation of law, we may presujne that such was one of the stipulations of Bobertson’s contract. This duty was simply a declaration of obligation of empresarios as resulting from the principles of law. It was generally expressly enjoined ou empresarios, and it is not probable that in Bobertson.’s case there was an exception. If such had been the stipulation, as it was the law, would not the empresario have been compelled to respect the equitable claims of the colonists introduced by the empresarios Austin and Williams, whoso want of surveys and titles was exclusively owing to the failure -of the Government to appoint a commissioner? The fact that they had neither surveys nor titles was well known to the executive, and a stipulation in their favor was susceptible of no other construction than that their possessions, acquired in good faith as colonists, should be respected by the succeeding empresario. A stipulation in favor of legally-acquired rights would, under such circumstances, be extended to equities derived from settlement, though under other circumstances, where there had been a commissioner, it might be"restricted to titles, inceptive or complete, issued by the lawful authority for that purpose. In this view, the rights of Teal should have been maintained against those of subsequent colonists introduced by Bobertson, and more especially should it have been preferred to a claim for Bobertson’s own benefit and advantage.

But it appears that Hiram Briley was at one time settled on this land, and that his right to its location was sold to Bobertson. The mere fact of settlement cannot of itself, under the law as it then existed, give any light. Under special circumstances and relatively to the rights of others (as we have seen in the case of the defendant) it may raise an equity.' But the facts in this case are against the claim under the settlement by Bliley. It is not shown, nor can we presume from anything in the record, that he was introduced in the country or in the colony by the lawful authorities. And further, bis settlement had been discontinued for more than a year before the occupation by the defendant, and if be ever had any right, it was lost by his selection elsewhere, and whether his right were good or not, it was not susceptible of transfer so as by the transfer itself to impart any right to another.

The appellees have rested their rights principally on the ground that an emc presario had no right to a grant of land as a colonist within the limits of his own colony. We cío not deem it necessary to decide on this point. The right is not free from doubt; but one tiling is certain, that if such a grant be supported at all, it must not be justly chargeable with the sacrifice of the legal or equitable rights of third parties. It must have been obtained partly through the official instrumentality of the empresario himself, and must not be vitiated by the infliction of wrong. Under all the facts of this case wé are of opinion that the defendant Teal had, at tlio time of the grant to Robertson, a superior equity or right to the land; that his claim was such as was entitled to respect by Robertson and the officers employed in carrying this empresario contract into execution; and especially is his claim to be preferred to that of the plaintiff as a colonist in his own empresario contract, and to a title issued to him as such colonist, he being the empresario, in the active exercise of liis powers as such.

The claim of the defendant has never been abandoned. He has pursued it and attempted in despite of all opposition to secure a title in form. His original equities have been maintained in tlieir freshness and vigor, and they are as much entitled now to regard as they were in the commencement of the struggle between these parties. We are of opinion that there is no error in the judgment; but as it was informally entered below, it is ordered, adjudged, and decreed that the same be reversed, and such judgment he rendered as should have been entered below.

Reversed and reformed.  