
    McMullen v. Hodge and others.
    'Where territory is.acquired by conquest or cession, in the absence of any order, decree, or law of the new sovereign, and in the absence of any treaty stipulations, individual rights of property remain unchanged. (Note 8.)
    .In the case of conquest it is undoubtedly in the power of the conquerer to destroy all the rights of the conquered; but in doing so, the most flagrant outrage would be done to the moral sense of the age, and such as would never be presumed to have been perpetrated, in the absence of the most positive and explicit affirmation of its author.
    ■So in the case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. It would be in the povVer of such a convention to take away or destroy individual rights; but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.
    The majesty of the law was neverdestroyed during the Texas revolution; it was in the people, and it still remained in them under a different modification of the government.
    ‘The term revolution, when used in reference to governments, has a positive and a qualified meaning; when employed in the former, it supposes a radical change of the whole system and structure of the government; when in the latter, it conveys the idea of a modification only. The revolution of Texas was clearly of the latter description. As a seceding part of the Mexican Confederacy, she was not left without laws made by herself, nor without proper officers for administering them; the laws of Mexico were her laws, and she was under the most sacred obligation to defend and support her own laws and to protect her •own citizens.
    
      The first section of the schedule in the Constitution of the Republic continued in full force-all laws in force before the separation from the Mexican Confederacy which were not. inconsistent with that Constitution.
    Taking the first section of the schedule of the Constitution of the Republic with the tenth section of the General Provisions, it would seem that tlie convention did not intend to-destroyany rights or tides, except those enumerated and specially named. Those two sections virtually confirm all other titles that were consummated at the date of the revolution.
    We ha7e uniformly decided that in case of imperfect titles, to give them a .standing in court,, required the action of the political authority; but if consummated before the change of the government and owned, by a citizen of the Republic, they were valid without any act of the political authority, and have standing, in propria vigore, in a court of law.
    The organization of the Indian missions and tnq.character of their grants of land examined at length, and the conclusion arrived at that fjjie Indians were [35] merely tenants at will; that their rights could neither he alienated nor transmitted by inheritance, and that after* the extinguishment of the missions, the lands became a part of the appropriable public-domain. t
    All lands sold under laws 15 and 19, title 12 book 4 of the New Recopolacion, were only in composition, and the purchasers were merely tenants at will. (Note 9.)
    I think it may well be doubted whether large grants of pasture land were ever authorized in any case by the laws of Spain. Lipscomb, J.
    Appeal from Bexar. The plaintiff in the court below, who is the appellant in this court, brought suit to recover a tract of land of eleven leagues, described' by metes and bounds supposed to contain twenty leagues. He offered in evidence a copy of a record from Bexar county which, by agreement, was i-ead in lieu of a copy of the same document which might have been obtained from, the General Land Office. This document purports to he the record of certain proceedings under the Government of Mexico, whilst it composed a vieeroyalty of Spain, in relation to the San Lucas lands. It goes to establish the following facts:
    In February, 1764, one Domingo Castillo applied to the cabildo of San Fernando de Bexar for a cone.essiou of certain lands at a place known as the San Lucas Springs, alleging that he required the use of the said lands for the stock of himself aud his wife, and that lie was and had been for several years in possession of the same, and that he had erected thereon a house and an inclosure. This application purported to have been in conformity with the royal decree, of' 15th October, 1754. The matter was referred by the cabildo, with its report, to the audiencia of the viceroyalty of Mexico for its final decision.
    During- the prosecution of the claim of Castillo the Rev. Father, the president of the mission of San Jose, made opposition to the claim in behalf of (he Indians of that mission, alleging that the Indians of that mission liad a better right, having used it for the pasturing of their flocks before it had been occupied by Castillo; that there had therefore been no particular lands set apart for the use of the people of the mission, because that when it was founded it was well understood that it was entitled to as much laud as might he needed for pasturing’ llocksaud for culture.
    This opposition was also referred to the royal audiencia for its decision. The land liad in the meantime, in conformity with instructions from the vice-royalty, been surveyed, appraised, and cried for the best bid for thirty days, and knocked off for the use of the mission Indians at one hundred dollars, being the best bid ; a formal report of all the proceedings was made to the royal audiencia for its final approval. It resulted in favor of the mission Indians, and on the 18th of November, 1760, a grant was made to them of eleven, leagues of land, in the following words :
    ‘‘In consideration of the foregoing acts, I do hereby order that the mandate of their lordships of the royal audiencia, and in conformity, that the sum of one hundred and fifty dollars be. made into the royal treasury, sin media an-nata, on account of their being Indians of tin: population of San Jose to whom the sale of eleven leagues of land is proved, and the same he granted to them by way of sale for their labors, pastures, and other purposes, without the right of alienating, conceding, or selling any part thereof, without the superior license of the Supreme (Government of the kingdom, under penalty of annulling this sale, without prejudice to his majesty or a third party.” .
    
      The plaintiff read in evidence, to deraign Iris title from the original grantees, a deed from Antonio Garcia, acting for himself, and pretending to act in behalf of Eusbrio Austmes, Louis Romero, Jose Maria Garcia, Juan déla Cruz Céltica, and Apolonario Roderegues, alleged to be the only natural descendants of the extinguished mission of San Jose, dated 10th January, 1S33, to Refugio de la Garza, describing the eleven leagues of land, as set out in the ancient field-notes of the survey made under the order of the cabildo of San Fernando de Bexar, referred to in the proceedings on the application of Castillo, and a conveyance dated the 18th of the same month fromDe la Garza to McMullen, the plaintiff in this suit. To prove the authority of Antonio Garcia to act for his constituents, a paper was read, dated 7th October, 1833, in which Marga-retta Del Toro, Louis Romero, and Jose Maria Garcia acknowledged what Garcia had done for them in January, 1833, and on tiie 30th November, 1S46, after the commencement of this suit, a similar act of confirmation from Del Toro. There were several witnesses sworn whose evidence conduced to prove that tiie vendors to De la Garza were the only surviving descendants of the Indians of the mission of San Jose, and also some to prove the manner in which the mission Indians were governed at the mission and the object of the institution, as also the manner in which tiie missions were broken up. The defendant offered in evidence a headright certificate granted to him under tiie laws of the Republic of Texas, and located on a part of the land claimed by the plaintiff.
    The case was submitted to the judge without the trial by a jury; and the judgment was against the sufficiency of the title of plantiff, from which lie appealed.
    
      V. E. Howard, for appellant.
    I. It appears that tiie lands claimed by Castillo and tiie Indians were duly put up for sale at public auction, being first valued according to law. In both methods of disposition this was tiie rule of proceeding. The only question is whether tiie lands were disposed of by composition, so called, which it appears, under law 15, tit. 12, lib. 4, of the laws of tiie Indies, (2 White, 53,) rendered tiie purchaser a tenant at will. It should be observed that that law is not referred to in any part of tiie proceedings as furnishing tiie rule under which this grant was made. On the contrary the only law referred to is 19 of the same book and title, referred to by the royal attorney, as giving the Indians tiie preference in tiie disposition of the lauds, whether by sale or composition. Admitting, for argument’s sake, that the law referred to speaks of composition and not of sale, yet a mistake of the purport of the law by tiie attorney could not affect the character of the. sale actually made. The law is as follows: “No one shall be admitted to make composition of lands who shall not have been in possession thereof for the term of ten years, although he should state that he is in possession at tiie time; for such circumstance by itself is not sufficient; and communities of Indians shall be admitted to make sueli compositions in preference to other private individuals, giving them all the facilities for that purpose.” (2 White, 54.) We should further observe that in the very preceding sentence to bis reference to tiie law, the attorney states that there was no contest which required proof; that the lands were vacant, as decided by the cabildo — evidently meaning that not having been occupied ten years, as the law required, they were not subject to composition. Neither did tiie Indians nor Castillo come within law 15 so as to subject the land to composition. Wo must therefore presume that tiie attorney referred to this law 19 either to prove that Castillo liad no right if tiie lands were admitted to composition, or to show, what was in fact the law of tiie Indies, that the Indians were preferred in all manner of sales and compositions of lands. (Law 9, tit. 12, lib. 4; 2 White, 51; law 36, tit. 18, lib. 2; law 13, tit. 31, lib. 2; 2 White, 34.) Whether or not tiie opinion of the attorney was that these lands should be admitted to composition, tiie decree of the officer authorizing and directing the grant is made by sale according to the 9th schedule of tiie instructions or decree of 1754, which is much later than the above decrees promulgated in tiie laws of the Indies in-, and directs under what circumstances the audiencia may confirm sales and dispositions. This tribunal did confirm this grant “ by way of salo” for the additional sum of fifty dollars, over and above what the lands had been struck down for to the Indians, and directed tlie secretary to extend tlie title. This title was extended “ by way of sale for labors, pastures, &c., and other purposes.” There is no doubt the royal audiencia with the primitive judge had aright to sell lands, and might sell instead of admitting to composition. Sale was more favored in the law. (2 White, 55.) As to tlie power of the audiencia, see secs. 9, 10, II, of the royal order of 1754, (2 White, 05,) which was indeed almost unlimited, representing tlie king himself.
    The Supreme Court of the United States have always presumed in favor of the face of the grant and the power of the officer making it. In Lucas «. Strother (12 Pet. R., 411) they declared that if a Spanish grant is contrary to the written order of the king-, it shall be presumed to be according to some other order not known. The king, as legislator, may change the laws, and his officers are presumed to know these changes, and to act'within the scope of their powers and according to their duty. (7 Pet. R., 95.) If then, under the law, this land might have'been admitted to composition, but the audiencia liad power to sell, and did pass t.itlo by way of sale, there is no doubt that such is the real character of the title. And even if the audiencia, having jurisdiction of the subject, decided wrongly, and disposed of the land by way of sale, where it should have given title by composition, yet as it was res judicata, it would render it a title by sale. We know affirmatively that that tribunal had a right to grant lands by sale and to confirm sales; and if we did not, having exercised the right, the law presumes not only that it had the right, but that the Spanish Government always had some officers in the colony who possessed the power (6 Pet. Tí., 760; 9 Pet. R., 760.)
    The authorities granting the land having directed that the conditions should be incorporated in tlie title, we are to presume that all the conditions were embraced, and that so vital a condition and qualification of the title as that of being tenants at will was not omitted. Such an interpretation would be forced, and contrary to the well-settled rules of construction. “The rule to be collected from all the cases is that tin; intention of the parties, as disclosed by the words of the instrument, must'govern the construction.” (Poole v. Bentley, 12 East R., 1C8; 1 Mass. R., 227; 4 Id., 136; 6 Id., 24; 7 Id., 382; 1 Kent, 460 (note 5) last ed.; 2 Id., 656.) In the case of the United States v. —, 10 Peters’ R., 306, it was decided that no conditions in law would he attached to a Spanish grant absolute in form; inasmuch as the officer granting was tlie judge of the conditions, and liad embodied none in the grant. So here, the audiencia was the tribunal to decide whether the confirmation should he by composition or by sale; and having made it by sale, the face of the title cannot be contradicted by holding it to have been by composition. The Supreme Court of the United States in adjudicating Spanish grants have never implied conditions in law when none were expressed in the grant. The well-known habits of the Spanish authorities of setting down in tlie title the precise conditions on which the Government intended to rely forbid an}'such assumption, especially when connected with the fact that the officer had power to grant with or without conditions at his pleasure. The case of the United States v. Rodman (15 Pot. R., 130) is in all respects a case in point upon this branch of the subject. There the grantee presented a petition to the Governor, stating Lis losses and services to the Government, and his intention to better his condition by erecting a saw-mill, and prayed for a grant of land. The Governor, in his decree, noticed his services and tlie advantages to result to the home and foreign trade of the province, and then gives the grant, according to the royal order of 1790, for five miles square, in absolute property. It was objected to this grant, 1st, that it was void, because it did not conform to tlie order of 1790; 2d, that there was implied a condition that a saw-mill should be built. It was admitted that the order of 1790 did not justify grants of the size made, but the court said that as the Governor by law had authority to make larger grants, the mere recital of the order could not limit or prejudice the grant, the officer having sufficient power. As to the saw-mill, the building of it not having been carried into the decree as a condition, it could not be held a condition of tiie grant. How, then, can it be contended that in the case at bar tiie mere reference by one of the attorneys to the law of composition, if such be tiie reference, can make this grant a title by composition? According to the case, of Hodman, the recital of tiie law of composition in the decree itself would not make it a title by composition, where the grant itself declares it to be a title “by way of sale.” The breadth of the title is to be measured by the granting words, and not by tiie recital of laws and.things which do not enter into tiie conditions of the grant. So where the petitioner, reciting his. services, asked for a grant of five miles square of land to build a saw-mill on and it was granted — the decree reciting the inducement — the building of the mill, without making it a condition expressly, the court refused to imply one. (United States v. ITanson, 16 Pet. R., 196.)
    II. Such being the nature of the grant, for whose benefit was it made, and to whom was it granted? Not to the church. Not to the friars of the order of Gaudalupe. After tiie first application for the two leagues, which was not listened 'to, they appear to have withdrawn from the contest. At the public sale the Indians of the mission of San Jose appear as ordinary purchasers, and bid the highest price for the lands, and they are struck down to them, and subsequently confirmed to tiie “ native Indians ” of that mission “ by way of sale.’* They are purchased by onerous title with the private property of the Indians. These lands cannot be held the property of tiie church or mission without holding that the Indians and the church were one and the same tiling. Now, these lands formed no part of the foundation of the mission, which held no lands for pasture in right of property, but only a general right to use the vacant lands — tiie mission having no particular charter, but bring organized under general laws. The grant shows that it was the .intention of the au-diencia to confer these lands by sale upon the Indians in private property, separate and apart-from tiie friars and the church. The statement of the officer of the church in Mexico shows that the mission, as an establishment, had withdrawn all pretension, and that all difficulty was removed by the Indians, as a community, becoming tiie purchasers.
    That tiie laws of Spain gave a right to Indians to purchase and hold property, both as individuals and communities, cannot, at this day, be a matter of doubt. (2 White 34; Id., 51, 54.) Such a right is repeatedly and fully recognized by the laws of the Indies, which not only gave the Indians the right to purchase and hold, but gave them a preference over others. They were tiie favored subjects of the law. And even if we did not find in the laws of Spain this express recognition of the right we should be, bouud, in absence of contrary proof, lo presume it. It is a familiar principle that tiie courts will indulge ail presumption in favor of tiie validity of a grant made by an officer having the power; and he who alleges the invalidity of a grant takes upon himself the burden of proof, and must show it. (Phillips v. Robertson, 2 Tenn. R.. 420; Patterson v. Jenks, 2 Pet.' It., 227.)
    But. if the Indians, by the general laws of Spain, had not a right to purchase and hold lands, either as individuals or as a community, the decree passing the title to the Indians of the. mission of San Jose was sufficient for that purpose, whether viewed as a legislative or judicial act. It was within the power of the audiencia to confer this capacity on the Indians. Such would be the common-law as well as the civil-law ruie of construction. A legislative grant to an alien and his heirs has been held to authorize him to take and transmit. (Jackson v. Goodell, 20 Johns. R., 707.) So with regard to a grant to an Indian. (Ib.) So a patent issued from the land office in pursuance of a statute is equivalent to a legislative grant, and would convey tiie right to take if the grantee had none before. (Jackson v. Lervey, 5 Cow. R., 397.) Tiie decree of tiie audiencia of Mexico is therefore of equal dignity with a legislative graut, and carries to the Indians the full capacity to talce in the preeise form of the grant.
    Not only are there express laws of the Spanish monarchy which authorized the Indians to purchase and alienate real estate, but the judicial decisions of this country have fully recognized their power. Mitchell v. United States (9 Pet. R., 752} is an authority which asserts the right of the Indian to hold and sell. In Martin v. Johnson, (5 Mart. R., 635,) the court say: “But it is said that such locations of the Indians on any tract of land did not convey to them the property of soil, but gave them a mere possession for the purposes of the Indian mode of life. Ry the laws of the Indies, 1, 6, 27, however, it is recognized that Indians can hold land as well as other people; nay, that they can alienate it with permission of Government.” (Id., 479 ; 2 White, 34; Id.T 51, 54.) In the same case it was held that no one but the Indian is able to take advantage of a nullity in the sale. Spencer v. Grimball (6 Mart. N. S., 355) is to the "samo effect.
    The Indian communities were always clothed with the same faculties as corporations wherever Indians resided together as a community. They were entitled to hold property as a community and to alienate it. Prom the Louisiana decisions already quoted it seems that wherever a community of Indians settled they were, under the laws of Spain, entitled to land, and might sell and choose' another location, and were again invested with a league square without formal grant. These laws are sufficient proof that these communities had capacity to take by graut. After such a length of time a charter of incorporation would he presumed if necessary. (Stockbridge v. Stoekbridge, 12 Mass. R., 400; 2 Kent Comm., 277; 12 Wheat. R., 04.) Again, the grant itself would constitute the grantees a body corporate as to the grant. (2 Kent Comm., 276; 7 Mass. R., 445 - Denton ®. Jackson, 2 Johns. Oh. R.; 1 Cow.. 671.)
    The grant in this case is not to the Catholic church, nor to the mission, nor to tlie population of the mission generally, but to the “ native Indians ” of Lhe mission of San Jose. It is difficult to see how such language can he tortured into meaning to the mission in its corporate capacity. The language evidently means, not the mission as a foundation, nor the whole mass of the population of the mission, but the resident native Indians of the mission. It is a grant to a particular class of individuals by name, and their express enumeration is by every rule of construction the exclusion of all other beneficiaries. It is not easy to understand how a grant of land to parties residing in a particular house could be held to inure to the benefit of the owner of the house instead of the residents named. The words of the grant to the Indians make ft a conveyance in fee with a defeasance; but granting that it might he construed either to that effect or as a tenancy at will, the grantees would be supported in claiming the fee, on the obvious principle that tiie grant must bo taken most favorably to them, and that they have a right to elect if it is capable of two constructions. Such a grant is as certain as a grant to or an entry by the heirs of J. F., which has been held good, (Hunt v. Wickliff, 2 Pet. R., 207,) or a grant to the Wife of A. That is certain which may by proof be reduced to certainty. (Shaw ». Loud, 12 Mass. R., 448.) It was not difficult to show by proof who were native Indians of the mission. (Shep. Tonel)., Oh. 12, p. 24G_; 1 Paine C. O.R., 632.) See also Bac. Abr., p. 37S, Tit. GRANT, (C.,) to the point that where there are sufficient marks of distinction the grant would he good without any name at all.
    But granting- the position that this was a purchase of land by the Indians with their own funds, the title to which was made to the mission for their benefit, this would only constitute the mission a trustee for the benefit of the Indians, and would not make the grant church property. (2 Kent Comm., 279; Phillips Academy®. King, 12 Mass. R., 546; Vidal®. Girard’s Ex’rs, 2 How. U. S. R., 1S6; Hempstead v. Hempstead, 2 Wend., 133.) And as it is a principle of law that a court of chancery will never let an estate fail for want of a trustee, the suppression of the mission could not affect the estate of the Indians. Were a trustee necessary to the preservation of the estate a court of ’ equity would appoint one in place of the one extinguished. Neither was the ¡trust foreign to the purposes of the creation of the mission, which was for the conversion, civilization, and support of the Indians. But the principles of the case last'cited fully sustain the right of tiie mission to take in trust for the Indians. And even if it were held that the title vested in the mission for the benefit of the Indians, the suppression of that institution and the escheat of its ■lands and property to tiie Government could in nowise affect trust property •which it held for other beneficiaries. A law declaring that mission property should revert to tiie Government could not affect it either in terms or by construction. And a law of confiscation or suppression would not be extended beyond its terms so as to embrace the private property of the Indians, especially in the face of laws declaring that all grants shall be made in such a maimer as not to interfere witli tiie lights and property of the Indians, either In communities or as individuals. Neither the decree of the Cortes of Mexico nor that of Coahuila and Texas authorize a presumption that either Government ever intended to alienate any other property than that which belonged to tiie mission as an establishment. It never was intended to touch the private property of tiie Indians.
    III. By tiie general colonization law of Mexico of 1824 tiie right of tiie States of the Mexican Federation to tiie lands within their limits was acknowledged, .and they wore directed to prescribe rules and laws for the disposition of them by colonization. The Legislature of Coahuila and Texas, by decree 177, declared that ''the Executive is hereby authorized to alienate the lands that pertained to the extinguished missions, conforming in so doing t.o the colonization ■law of the 24th of "March, 1825,” cannot be tortured into authority to alienate ,the lauds which belonged, not to tiie church, but to the Indians residing in the* mission.
    “Why Spain and tiie Government of Mexico claimed a right to alienate tiiose .lands which were strictly mission property is seen in the declaration of the ¡friar, who declares that the mission was organized under general laws, and' ■had no particular property, but only a general right of usufruct in what ■was necessary for the accommodation of the mission. Those decrees therefore .invaded no rights of property; but the title in the San Lucas lands and all the .proceedings connected with it show that it was the intention of the parties to vest tiie interest in tiie Indians separate and distinct from the mission. It was not land, therefore, that pertained to the mission. All the proof in the record •shows that this decree for tiie alienation of the mission property was confined ¡to that which was strictly mission property in 1S31.
    There is one argument which should be conclusive with the courts of this .country of the correctness of the construction for which I contend : it was the • construction of the Spanish and Mexican Governments. Everything in the grant and in the conduct of the mission proves that it was the construction of tiie Spanish authorities. That it was the construction of the Mexican is proved ¡from the fact that while the mission lands, property so called, were alienated under the decree of Coahuila and Texas of 1831, tiie San Lucas lands were never alienated, but always respected as the private property of the Indians. .As the lands were valuable both for grazing and agriculture, it seems incredible that they would not have been sold had they become public domain, espe- • daily as the decree expressly directs the sale of all lands which pertained to . the extinguished mission, if these lands were respected as private property ■ by the authorities of the Government, who fully understood the whole subject, it is not to be presumed that the courts of this country will undertake to say ¡that they were mistaken. The rule is well settled that they cannot be held to be resumed as mission property without express words to that effect in the decree suppressing the mission. (Rutherford v. Green, 2 Wheat. R., 203; 0 iPet. R., 733.) If the Government of Mexico bad actually alienated these lands •under any of the decrees for the sale of mission property, the courts of this 'Government might have felt some reluctance to pronounce the sales void, as -contrary to the fundamental laws of that Government; but the Mexican authorities having respected the grant as private property, the presumption-that it was so is too violent to be denied in our courts after such a length of time.
    IV. We further insist that tlie descendants of the original grantees were not Indians, in tlie meaning of that term; that as heirs and successors they took the estate as other Spanish subjects. It is in proof that they were converted and, civilized at tlie time and long previous to the suppression of the mission. It appears undeniable that, under the laws of Spain, Christian Indians, or those who had received the rites of baptism, could hold and dispose of lands as fully as other Spanish subjects, and that no confirmation of their sale was necessary to its validity. This was fully established in the investigation of Louisiana grants bjr the United States commissioners. (2 White, 249.) It was also--established-that tills approbation in the case of other Indians was not a condition precedent to the sale under the laws of Spain, but might be had any time . after tlie sale by the Indians. We therefore insist that inasmuch as the Indians-of the mission are proved to have been baptised and converted, and in the enjoyment of all tlie benefits of civilization at the time of the sale, the law for that reason discharged tlie title of the condition. And inasmuch as the confirmation of the sale was not a condition precedent, the purchaser would take the estate subject to tlie defeasance. The title stipulates in the condition that if' the Indians dispose of any portion of the land without approbation it shall be on pain of nullity, without prejudice to the king or a third party; that is, the king should not be compelled to restore tlie purchase-money, nor the purchaser lose any portion of the land which he liad purchased. Unless the language has this meaning it can have none, but would be entirely inoperative — a consequence never to bo indulged in construction when it can be avoided. It must be held to mean that the'title could not be avoided in the hands of a purchaser from the Indians. It appears too, from the authority last cited, that when confirmation was in fruth a condition, as in the ease of unbaptised Indians, it never was withheld, but alwa3rs given. It conferred a title to which nobody could object but the Indians and tlie Government.
    Tlie Constitution and laws of Mexico conferred full right of citizenship upon the whole mass of her Indian population. From that moment the disability ceased. Conditions which limit or defeat an estate are always construed strictly against the grantor and liberally to uphold the estate. (Co. Lilt., 219, C.) The condition of the estate is that it shall not be sold without the approbation of the officers of “this kingdom;” and the Spanish Government having, by acknowledging tlie independence of Mexico, rendered the compliance impossible, tlie condition is discharged. (Aredondo’s case, 6 Pet. It.) The-limitation is express to tlie authorities of the kingdom of Spain, and cannot be-extended by implication. (Hilliard B., 249; 1 Paine C. C. B., 652.)
    V. Spain and Mexico discharged the condition by abolishing entails and all restraints on alienation. (2 White, 181; Dees, of C. & T., No. 263, p. 240; of Mexico 7 August, 1S23,2 vol. Dec., 154.) By the common law a restraint upon alienation, such as that contained in this title, would have been void, (4 Kent Comm., 131;) and the Government of Texas by adopting that system lias discharged it and restored it to the class of friie estate. It has been repeatedly decided in the United States that abolishing the doctrine of entails restored--such estates to absolute property and discharged the conditions.
    Again, if a license to sell or an approbation of the sale was necessary by tlie-aulliorities of tlie Mexican Government it will be presumed that it was duly proved before tlie officer before whom the Indians passed the title. Especially should it be presumed when it has been held long enough to bar a right of' entry under our statutes as well as under the laws of Spain. Grants are presumed in analogy to si atutos which bar a rig-lit. of entry. (Strother «.Lucas, 12 Pet. K.; 1 Grceul. Ev., 20, note 1; 8 Pick. B., f>04; 10 Id., 295; Bicard v. Williams, 1 Wheat. B., 110.) We know that this condition in Spanishj grants was for tlie protection of the Indian, who, from simplicity and want of education, was supposed not to be able to cope with the civilized man. The grantor not having said that this condition is to survive to the successors of the Indians, it cannot be extended beyond the original grantees. The condition is-measured by the precise words used in the defeasance. (Adams on Eject., 191.)' If tlie mission tonic tlie property as trustee, tlie condition being discharged, the beneficiaries might sell. (4 Kent Comm., 303.) And whether discharged or not, tlie vendee would take subject to the right of entry by the State.
    VI. It does not follow, if this grant was made by composition and the grantees ivmd tenants at will, that they or their vendees maybe dispossessed by any oilier parties. If tenants at will, it was at tlie Will of the Government, and not of strangers or mere intruders. There is no evidence of any will on the part of the Spanish, Mexican, or Texas Government to terminate this tenancy at will. All that could be said upon the subject is, that the Governments of Mexico ami Texas succeeded to tlie rights of the crown of Spain and might claim tlie forfeiture. Tlie forfeiture when asserted must be by some method, known to tlie laws. It is not in the power of a subject under either Government to treat the estate as forfeited until a judicial finding; much less, where a party is tenant at will, is it in the power of any citizen to terminate the estate by setting up his own will for the will of the Government. A location by a stranger is'not the exercise of Government will. This can only be manifested bjr some inquiry instituted by legislative authority. Until such authority is given, the locator is a mere trespasser, against whom the tenant may have his action. (9 Pet. R., 743.) A grant, by breach of condition subsequent, is not void; it is only voidable by those alone who made it. (Weakly v. Wilson, 1 Overt. It.. 370; 2 U. S. Dig., 472; vide especially 11 N. II. R., 9.) This is an action for the possession, aud a right of possession is sufficient to sustain it. (Adams on Eject., 35.)
    VII. Since writing the above, I have examined the decree of the Spanish Government of 1794, secularizing the mission of San Jose, and also the proceedings of tlie political chief in 1829, under the law of Coahuilaand Texas, by which it appears that this land under both Governments was recognized as the property of the Indians, and subject to division as their property. It also-appears that this property was never treated as belonging to the church, bnt, by the decrees of both Governments, as vested in the Indians by virtue of the purchase. It appears, furthermore, that none of the property belonged to the church but to the Indians, aud was ordered to be respected as such. It also is made manifest by the decree of 1794 that the Indians could take and hold both real and personal estate as a community; that they were, in fact, if not. a corporation, tenants in common. (Vide book in the Land Office, Missions, p. 97.)
    There can be no doubt that grants for pasture carried the fee. It was the-principal business of the inhabitants. But the grant in this case is for agriculture. (U. S. v. Richard, 8 Ret. R., 470; U. S', v. Huertas, 8 Ret. R.. 475. 4SS.)
    
      I. A. 8f G. W. Paschal, for appellees.
    I. The first proposition that we shall rely upon is, that no title can be considered by this court as an evidence of right to land unless recognized as such-by the laws of this State.
    Every revolution which ends in the destruction of the old and in the creation of a new sovereignty repeals all prior laws, and upon obvious principles. Laws are rules of action, prescribed by sovereign will. Rights are defined and protected by laws. Whenever the sovereign power which prescribes the rules of action or laws to society is abolished or destroyed, the laws themselves are without force or efficacy, and the rights of property can alone be protected by the laws of nature; until the new sovereignty, established on tlie ruins of the old, shall prescribe other rules for the regulation and government of the-rights of citizens.. This may be done by the adoption of the old or by the enactment of new laws.
    We are aware that there are a few decisions of the Supreme Court of the United States which seem to recognize a different doctrine. Many of the profession rely upon these decisions as conclusively settling the doctrine that ■consummate grants bf a former Government have a standing in the courts of justice'of tlie succeeding Government, without recognition on the part of the political authorities. The decisions relied upon to sustain this principle are Smith T. v. U. S., 4 Pet. R.; Aredondo, 6 Pet. R.; Perchman, 7 Pet. R.; Delassus v. The U. S., 9 Pet. R.; New Orleans v. The U. S., 10 Pet. R., and a few others made about the same period and under the same circumstances.
    We propose briefly noticing, tlie dates of these several decisions and the grounds upon which they were based. One of the earliest cases brought before tlie United States Court for confirmation, after the act of 1S24 allowing claimants to land under the Louisiana treaty to resort to the Federal Court for a •confirmation of their titles, was the case of Soulard, as it is reported, but better known as Smith T. v. U. S., (4 Pet. R.J The Supreme Court in this case recognized in strong language the political obligation of the General Government to respect tlie rights of property of the inhabitants of tlie Government which had passed away, even without a treaty stipulation ; but nowhere in that;opinion is it intimated that such rights may be asserted in a court of justice.against persons deriving title under the new Qovernment until they are recognized by the political authorities.
    We must not omit to mention here an able and important decision of the -Supreme Court of the United States as to the nature of grants to land which have not been recognized by the political authorities of the Government where suit is instituted. We allude to the case of Foster and Elam v. Neilson, (2 Pet. R.) This opinion of the court fully sustains the views we have here advanced. It declares that tlie'courl, can recognize no grant which has not been recognized by the political authorities. The next case in order is the Aredondo ■case. (6 Pet. R.) This was an application to the Federal Courts for a ■confirmation Of a grant of laud under the Florida treaty of 1S19, tlie court acting not only as a judicial but political tribunal to confirm grants under a special act of Congress. Tlie interpretation given to the 8th article of the treaty with ■Spain in 1819 is tlie distinguishing feature in tlie case. An interpretation wholly ■different from tlie English was given to tlie Spanish version of this article. By this interpretation tlie treaty was made to act upon and confirm all grants and concessions of lands made prior to tlie 24th of January, 1818. In relation to these grants there was no necessity of future action on tlie part of the political authorities. By the treaty itself, which was the supreme law of tlie land, they were ratified and confirmed. Shortly' afterwards the Perchman case (7 Pet. R.) was decided upon the same grounds. Chief Justice Marshall, however, in delivering the opinion of tlie court, took occasion to go further than was neccs-■sary, and to throw out the obiter dictum,, upon which so much stress has been laid by those who contend that complete titles of a fornier-Governmcnt need not be recognized or confirmed by tlie succeeding Government before asserted :in a court of justice. The language of Chief Justice Marshall is this: ‘‘ Without it ” (the Stli article of the treaty)'‘the title of individuals would remain .as valid under the new Government as they were under tlie old, and those titles, so far at least as they were consummate, might lie asserted in the courts •of tlie United States independently of this article.” If his meaning was that .all those titles emanating from the Spanish authorities, and which were consummate according to tlie laws, customs, and usages of the country' under which.they originated after the treaty of cession, might have been asserted in the courts of tlie United States independently' of treaty stipulation in their favor and their recognition by legislative provisions, lie is opposed, in opinion, to tlie continued practice of the Government for more Ilian forty years, to his ■own opinion solemnly' expressed in the case of Foster and Elam, and to all ¿he recent opinions of tlie United States Supreme Court in relation to the Florida, and Louisiana grants. Although there were many titles perfect in form and containing a full conveyance of land remaining unconfirmed after the announcement of the opinion in the Perchman case that they might be asserted in the courts of justice, still we know of no single case in which such title was so asserted. None of the subsequent decisions of the Supreme Court •of the United States, relative to grants arising under the Louisiana and Florida treaties, declare that those grants, however perfect, had a standing in a court of justice, unless confirmed by treaty stipulation or by act of Congress.
    The circumstances under which these decisions were made are also to be •considered. Spain was complaining of the want bf good faith on the part of the United States in carrying out her treaty stipulations in regard to the grants •of the ancient inhabitants. The parties were permitted to resort to the Federal Courts for a confirmation of their titles. In discharging this duty, the judges of the Federal Courts occupied a truly responsible position, not merely as judges to declare what the law was, but were clothed with high political power's to declare how far a great and magnanimous nation should go to redeem its plighted faith and honor. They were made the guardians of the nation’s honor and the dispensers of its liberality, so far as related to its obligations, express or implied, in the Louisiana and Florida treaties. Such men •as Marshall and Baldwin had rather have seen the entire public domain acquired by those treaties absorbed by private claims than that the national faith should have been justly impugned. This view of the subject is necessary to a correct understanding of the decisions of the United States Supreme Court in the •cases arising under the Louisiana and Florida treaties, because this spirit and feeling of liberality entered into all their decisions until were discovered the ■many gross frauds and impositions practiced upon the Government by inter- ‘ csted claimants.
    It is also necessary to have constantly in view the interpretation of the ■eighth article of the Florida treaty for a correct understanding of the -decisions in relation to the claims arising under that treaty, because in every •case, except the dictum in the Perchman case, arising under this treaty, in which language is used seeming to imply that those cases had a standing in a ■court of justice without confirmation by the political authorities, the supposed direct confirmation of the treaty itself is had in view. This interpretation, ■clearly erroneous, and first laid down in the Aredondo case, was what led the Supreme Court of the United States into a series of decisions characterized by more inconsistency than any ever emanating from that tribunal or any other as much distinguished for learning and ability.
    In the case of Pollard's Heirs v. Kibble, (14 Pet. R.,) the Supreme Court •evidently departs from the doctrine laid down iii the Aredondo and Perchman •cases and most of the cases till that time. From this tíme, the doctrine laid down in the case of Foster and Elam v. Neilson was fully restored, and it has ever since been considered a leading case.
    The case of IViggins (14 Pet. B..) was an absolute grant in full property to a certain quantity of land without conditions, precedent or subsequent, expressed in the grant. The grant gave the party the privilege of selecting' any portion of the public domain to the extent of the grant. The right was as absolute and complete as any right could be, and was as much protected under the eighth article of the treaty as any other concession of land, whether surveyed or unsurveyed. If, according to the decision of the Supreme Court, the eighth article of the treaty, propria vii/ore, operated upon and confirmed all concessions made prior to the 24th day of January, 1818, then Mrs. Wiggins’ concession stood confirmed by the supreme law of the land. Nevertheless, the Supreme Court refused to confirm the claim, because it had not been surveyed, and the conditions prescribed by the rules and regulations of the Governors of Florida had not been complied with. Here they traveled behind the treaty to inquire into the validity, no, not the validity, for of that they were satisfied, but the justice of the claim. See the cases of Merand v. The United States, (16' Pet. It.;) O’Hara, 15 Pet. R., 184, 215, 275, 319, and 16 Pet. R., 159, 160, for the cases there reported. The cases are all deckled nearly upon the same principles as 'that of Wiggins. They show an entire departure from or overruling of tlie doctrine laid down in the Arcdoudo and Perehman cases, as well in regard to the interpretation of the treaty as the force and effect of the grants unconfirmed.
    But tlie cases of Eekhart v. Clmtan, (2 How. U. S. R.,) Hiclcel v. Stewart, United States v. King, (3 How. U. S. R.,) and Lebois v. Brammel, (4 How. U. S. R.,) entirely support tlie doctrine for which we are contending, that grants unconfirmed by the political authorities emanating from the former Government of Spaiu have no standing in a court of justice.
    Canada was conquered by England of the Prendí in 17GS; England stipulated by treaty to protect all the rights and property of her new subjects. Within the limits of Hew York were many possessions held by virtue of French patents emanating from the French Government while the country was in undisputed possession of that Government; but such patents were never considered as evidence of right to land by the. tribunals of Hew York against one deriving title from tlie colonial or State Government of Hew York, unless previously"recognized by the political authorities. And this upon the ground that courts of justice could only respect or recognize as evideuce of right to land such titles as were recognized by the Government from which they derived their power. The question never arose as to the original right of France to grant the land, nor was it ever doubted that England was bound by treaty stipulation, the most solemn law of nations, to protect these grants; but it was uot for the municipal courts to enforce obedience to these laws. There was no remedy save bj' appeal to the sovereign power. See Jackson v. Waters, (12 Johns. R., 365.) La Framboise v. Jackson, (8 Cow. R., 5S9,) Jackson v. Thomas, (16 Johns. R., 293,) and Jackson v. Johnson, (5 Cow. R., 24.)
    The court is also referred to Yattel, B. 1, Oh. XVIII, p. 98, sec. 203; also B. 2, Oh. VII, pp. 163, 16-1, 165, 166, as fully sustaining the position we have advanced.
    II. The title upon which plaintiff relies is not recognized as evidence of right to land, and therefore has no standing in a court of "justice.
    Because we have already seen that the Revolution destroyed not onlj' the Mexican Government and the Government of Coalmila and Texas, so far as related to Texas, but annihilated every Mexican and Spanish law then in force.
    The first section of the schedule of tlie Constitution of the Republic of Texas declares that all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force until declared void, repealed, altered, or expire by their own limitation.
    The eighth section of the schedule continued all officers until superseded by others appointed under the Constituí ion.
    The second clause of the tenth section of the general provisions of the Constitution declares that “all orders of survey legally obtained by any citizen of the Republic from any legally-authorized commissioner prior to the act of the late consultation closing the land office shall be valid. In all cases the actual settler and occupant of the soil shall be entitled, in locatiug his land, to inclose his improvement according to the law of the land and this Constitution; provided that nothing herein contained shall prejudice the rights of any other citizen from whom a settler may hold land by rent or lease.”
    There can be no doubt that it was the intention of the framers of the Constitution to declare valid the orders of surve}'legally issued by the commissioners under the colonization law, because in no other ease, were orders of survey issued by commissioners. But these rights, thus secured by the positive provisions of the Constitution, lay dormant until the Legislature provided a mode by which they might be recognized and their legality tested. The Congress of 1837 established the General Land Office. By the provisions of this law a board of land commissioners was appointed, whose duty it was to determine claims arising from orders of survey under the colonization laws and this section of tlie Constitution, as well as all claims for headlight certificates arising ■ under the provisions of the Constitution.
    The twenty-fourth section of the same act confirmed all titles issued to col•onists, under the colonization laws, by the commissioners to the extent of a league and labor.
    On the 29th of January, 1840, the traveling board of land commissioners was established. By the fifth section of this act the commissioner was prohibited from issuing patents, under a penalty, except upon certificates issuing from the last board, or by authority of a warrant issued for military services, or a certificate issued by a special act of Congress.
    By an act of 1841 this power was conferred upon the District Court, and the power of acting upon the certificates issued by the first board of land commissioners expired July 1, 1847. The District Court now only possesses the power of acting on first-class certificates arising under the Constitution. •
    By none of these provisions of the Constitution or laws is the plaintiff’s claim iucluded. There is no special act confirming it, nor is there any general law -confirming or authorizing the tribunals of justice to confirm this class of titles. No provision was ever made for the, confirmation of the claims of land beyond •a league and labor.
    The adoption of the Spanish or civil law did not recognize titles emanating from the former Government as evidence of rig-lit to land against a title derived from the Republic. Had this been the case it would not avail the plaintiff, as the laws under which his title originated were not in force at the time of the ratification of the Constitution, and consequently were not adopted. The Spanish laws were all superseded and repealed, except those relating exclusively to the colonization of lands in Coahuila and Texas, on the 24th of January, 1840, by the adoption of the common law.
    The common law lias been in force in this country since 1S30, so far as relates to testimony. (Acts of 1S38, p. 156, sec. 41.) Then since that time no •title or document purporting to be a title to lands could have been received as ■evidence of rig-lit to land unless declared such by statute or was so by the com-mon law of England. No statute of the Republic or State of Texas has ever declared that a title emanating from the Government of Spain or Mexico should 'be considered as evidence of right to land by the courts of the State as against persons deriving titles from the Republic or State; and the common law recognizes no title to land which does not proceed from the sovereignty where it is 'in foi-ce.
    The common law gave the right of action by ejectment, and an act of the 5th of February of the same year abolished all- fictitious proceedings in the ¡action of ejectment. (Acts of 1S40, p. 186.). This act “provided a mode of trying titles to lands,” but did not declare what should be considered as evidence of right to land. As the common law required every person who sought .to establish title to and recover land in the possession of another to deraignhis title from the sovereignty, and such a title as showed that the sovereignty liad parted with the fee in the premises before lie could recover, there were many ■species of equitable title upon which persons could not recover the possession -of lands of those who liad no claim whatever to them. For instance, such lands as had been located, or located and surveyed by virtue of valid certificates, and, as we contend, those which were claimed by titles emanating from the former Government, but not confirmed by the Republic, would not enable the party to maintain an action of ejectment even against a mere naked possessor. Therefore the 23d section of the act of 1841 provided “that all certificates for .headlights, land scrip, bounty warrants, or any other evidence of right to land recognized by the laws of this Government which have been located or surveyed shall be deemed and held a sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law, ¡all laws to the contrary notwithstanding.” (Acts of 1841, p. 170, sec. 23.]
    
      The plaintiff’s title clearly does not come under the" designation of head-rights, land scrip, or bounty warrants. Is it then any other evidence of right to land recognized by this Government? If so, when and by what act was it recognized ?
    III. The sale or grant to the Indians of the mission of San Jose conveyed no absolute property in the soil, but merely the occupant and usufruct right as tenants at will of the King of Spain.
    This land was sold at public auction, that is, it was admitted to composition, the highest bidder, whether the mission or the people, taking as tenant at will. The Attorney General, in making his report to the primitive judge of lauds, directs that the lands in question should be disposed of according to book 4, tit. 12, law 19 of the Recopplaciou. This law is as follows: “No one shall be ad-milted to make composition of lands who shall not have been in possession thereof for the term of ten years, although he should state that he is in possession at the time, for such circumstance, by itself, is not sufficient; and communities of Indians shall be admitted to make composition in preference to other private individuals, giving them all facilities for that purpose.” (2 White, Itecop., 54, 55.)
    It is admitted that if the land was admitted to composition it was held as tenants at will, but it is boldly denied that this land was admitted to composition, 1st, because the natives had not proved their possession of the laud for ten years, without which it was not liable to be admitted to composition; 2d, because they purchased it by way of sale.
    To the first objection we say it fully appears from the grant itself that the Indians possessed this land and pastured their cattle on it many years before the date of the grant. It is shown that Castillo admitted the fact to Captain Manchaea. The testimony taken before the cabildo shows that there were the signs of old pens and corrals on the land formerly used by the mission people. The assertion on the part of the president of the institution is frequent ly made, that this land had long been used by the mission people, and never contradicted. It is too late now to travel behind the adjudication, and .say they acted upon insufficient testimony. The only effect would be to show that the officers were imposed upon and the grant a nullity. But there is no-doubt that the latter clause of the law above quoted would allow lands to be admit ted to composition in favor of Indian communities without ten years’ possession.
    But it is said this land was purchased by way of sale for a valuable consideration, the Indians being the highest and" best bidders. The law regulating tills matter will be found in book 4, tit. 12, law 15 of the Novísima Recop-olacion. (2 vol. White’s Itecop., 53.) In this law we find the following provision : “All lands which are to be admitted to composition shall be sold at auction and without reserve to the highest bidder as tenants at will.”
    The land which the plaintiff claims was sold at auction to the highest bidder. with the restriction that they should not alienate or sell the same without ;be previous license of the Government; still it is contended that the Indians-acqnired a fee-simple to.the same. The restriction, no doubt, was in consequence of the character of the persons in favor of whom this land was admitted to composition, being a community of Indians in a state of pupilage, and (lie merced, or gift, being for charitable purposes. The media annata, that is. the fruits and revenues which are always derived from leases, rents, and lands admitted to composition, was dispensed with on account of their being Indians of the mission of San Jose. Now such a thing as media annata was novel-heard of in connection with an absolute and unqualified sale. IIow is it possible to make an absolute sale of land for cash, and reserve a half-yearly rent. Although the ‘■'■media annata’1'' was not reserved in this case, it was only dispensed with on account of the character of the population and not on account of the nature of the title.
    
      "We may, however, here he permitted to remark that the concession of a. large extent of land for the purposes of pasturage and the raising of cattle was unknown to the Spanish law. The assessor general, the highest law officer-known to Spain, and whose duty it was to advise legally all officers in relation to tiie sale and composition of lands, thus speaks on this subject: “The concession of a great extent of land for the rearing and pasture of cattle constitutes no more than the usufruct of it for -the time agreed upon; but the grantee has not nor never had the most remote right to solicit the proprietorship, for there is no law or regulation on which to found it; and consequently the land does not go out of the class of public lands, since it is the same as if it was held on rent.”
    Then, if the Indians of the mission were tenants at will, that tenancy ceased by the dissolution of the community; by the resumption of the property in 1813, pertaining to the missions then suppressed; by the overthrow of the Spanish monarchy; by the action of the Government of Mexico in 1S24-5; by decree No. 177 of Coahuila and Texas, which authorized the Government to-dispose of the lands pertaining to the extinguished missions in conformity to-the colonization laws. This decree could not have alluded to the suertes and labors around the missions, because they had all been disposed of; it could only have referred to the pasture lands held b3rthe missions. Also the tenancy at will ceased by the Texas Revolution, a tenancy held from this Government being unknown, and finally by the location and survey of the defendant, which, by our laws, is as complete a parting with the interest of the State as if the same had been ceded by patent. (6 Call. Ya. R., 113.)
    IV. The grant was without prejudice to the right of the king or sovereignty p and not only by the terms of the grant itself were the Indians restrained and prohibited from selling or conveying the property in question under pain of nullity, but by the laws of Spain all Indians were prohibited from selling or conveying any property belonging to them, individually or in communitj^ without the previous license of the Government, under pain of absolute forfeiture.
    This restriction in the grant, prohibiting the Indians from alienating or ceding their property without the superior license of the Government, was the mere incorporation of ageneral principle by which every nation in Europe obtaining a foothold on this continent was governed. They were never considered as-owning the ultimate fee of lauds of which they had the occupant right, whether the same was distributed to them by the Government or whether they possessed in the original capacity. All the testimony in this case abundantly shows that the Indians at the time of the grant were in a state of pupilage and’ tutelage.
    The graut being a royal grant, was to the grantee a law, and pronounced-the penalty which shoijld ensue from an attempt to sell without license from, the Government.
    By a royal decree dated 23d of February, 17S1, (see Ordinances of Lands and' Waters, p. 106 to 109,) relative to the sale and alienation of lauds belonging to-the Indians, after reciting at length the great abuses which had resulted from the toleration of this practice, it is substantially declared that the Indians of whatever condition or class, civilized or not, in communities or individually, are absolutely prohibited from selling, alienating, renting, or leasing their land, whether the title was derived by purchase, inheritance, donation, or otherwise; and it- appears by' said decree that every alienation of property in which they had an absolute and fee-simple title was null and void, and that the alienee lost the price of the sale or lease; that the lands which they received by distribution were absolutely lost to the alienor and alienee, and the same directed to be applied to others; that in the lands which the “ natives received by distribution they have no direct dominion, but only a beneficiary interest,” and that the “lauds held by Indians in community are distributed to-•them for the laudable and pious purpose of their inhabitation, benefit, and condition from which it clearly results that these lands were distributed to the community of Indians of the mission of San Jose for the laudable purpose of their habitation, benefit, and condition; that “theyhad no direct dominion in such lands,” but a mere beneficiary interest, and that they were prohibited from alienating whatever interest they had acquired, under pain of the loss of the lands.
    As to the effect of a sale or alienation against a prohibitory law, we refer the court to the case of Conaluski, a Cherokee Indian, (4 Ala. R.,) University •of Alabama v. Winston, (5 Stew. & Por. R., 17,1 Gill v. Taylor, (3 Port.,) Cromelin v. Winter et al., g, (Ala. R., H. S., p. 94,) and St. Regis v. Drum, (19 •Johns. R„ 127.) See also Jackson v. G-oodell, (20 Johns. R., 1SS,) and Murry et al. v. Woodson, (17 Wend. R., 531.)
    The decree last cited not only declares that the Indians or natives have no direct dominion in lands distributed to them, but more positively prohibits alienation than the laws under which the foregoing cases were decided. If the property belonged to the natives absolutely, the plaintiff can take nothing; for the sale to him was a nullity; if distributed to the Indians for their bene'iit the act of sale, the lands were lost to both parties and reverted to the •Government.
    We have been referred to the cases of Rebove v. Hero, (5 Mart. R., 490,) Martin v. Johnson et als., (5 Mart. R., 655,) Spencer’s Heirs v. G-ramball, (6 Mar. R., H. S. 355,) and Mitchell v. The United States, (9 Pet. R.,) as showing that the Indians were allowed by the laws of Spain- to sell their lands without the license of the Government. In view of the facts that the sales in question in tlie Louisiana cases were fully approved by the Spanish Governor and the United States, which rendered them valid, and that the question whether the sale of the Indians without license was an absolute or relative nullity, was a ■purely theoretical one, these cases do not conflict with our views as here expressed, though they may with some of the Alabama decisions. Besides, from the reference of Judge Porter to the Spanish I-.uv (Ordinanzas de tierras y aquas, p. 110) requiring"'Indians to sell their property at auction, under the pain of the nullity of such sale and not the loss of the property, and from which he seems to draw the conclusion that the nullity of the sale under the Jaw could only be taken advantage of by the Indians, it is evident that lie .never saw the decree we have here cited. In the case of the United States v. Mitchell, (9 Pet. R.,) discussed at great length, the rule of the court may bo -extracted as follows: “Individuals could not purchase lands of Indians without permission or license of the Government, the Crown, colonia! Governor, •or according to the rules prescribed by colonial laws; and by this union of the perpetual right of occupancy with the ultimate fee, which passed'from the •Crown by the license, the title of the purchaser became complete.” The case, therefore, is not against us, but in our favor. It is doubtful, however, whether the decree dated 23d of February, 1781, was ever in force in Louisiana or Florida. It was issued through the viceroyalty of Mexico, aud seems to have been 'intended alone for Hew Spain. If so, that will account for its never having been referred to in the United States by the courts.
    But it is said the disability under which the Indians labored was removed by their conversion to Christianity aud by the overthrow of the Spanish Mon.arch, when they were declared free citizens of Mexico. The change of the moral condition of the Indians did not change the tenure of their property then held; nor did such change, according to the laws of Spain, authorize the Indians to alienate the property which they might acquire by clear title of inheritance, even after they were converted. The decree, too, which we have ■cited, of February 23d, 1781, especially mentions converted as well as unconverted Indians. Hor did the change of Government enlarge the estate aud remove the restrictions. If the grant vested in the grantees an estate in the Hand under the new Government, it must at least have been subject to tlie same conditions and restrictions as contained in tlie original deed, and as ■prescribed by tlie laws in force at tlie time of the change of the Government. Nothing but a subsequent act of the new Government could have removed ■those restrictions. If the mere act of the Revolution destroyed the restrictive •clause of tlie grant as intended, it certainly destroyed every clause. Such we have no doubt was the case. The law of 17S1 was continued in force in Mexico, with all its prohibitions against Indiaijs, till the Declaration of Inde•pendence of the Republic, and in Texas even down to the year 1840.
    But it is said the consent of the Government must be presumed from the execution of the sale by the officer. No such consent is even mentioned. By the decree we have referred to it required tlie consent of tlie fiscal or attorney general. Tlie same law was continued in Mexico.
    This grant was made without prejudice to the right of the King or a third party. "There seems to be some little obscurity in tlie latter clause in the granting of tlie deed. The language, literally translated, is as follows: “And is made to them” (the Indiaus of the population of the mission of San Jose) “a gift of them,” (the eleven leagues of pasture laud,) “by way of sale, for labors, pastimes, rearing of cattle, and other necessary purposes, without being permitted to alienate or sell auy part of said lands, except with the express license of the Superior Government of this Kingdom, under pain of nullity of this gift, without prejudice to his majesty or a third person.”
    It is said that the expression “ without prejudice to his majesty, or a third person” lias reference to tile penalty pronouuced; that is, that, the nullity should be without prejudice to his majesty or a third person. It is tlie gift •(merced) which is made without prejudice to his majesty or of a third person. It is au universal rule in all Spanish grants to insert the clause without prejudice to a third person, and as this was a mere tenancy at will tlie same clause was reserved in relation to the grantor. If we supply tlie word “and,” and punctuate differently, tlie sentence will be perfectly clear: “And is made to them a gift, &c., for their labors, <&c., without tlie permission of alienating, ceding, orselling any part of said lands, except with express license of tlie Superior Government of this Kingdom, under pain of nullity of this gift,”1 “ and ” without prejudice to his Majesty or a third “ person.” .That is, tlie gift was made without the power of selling and without prejudice to his majesty or a third person. It is susceptible of no other construction. Tlie sale itself .annuls the gift.
    V. The grant in question, whatever may have been the amount or quantity ■of interest in tlie estate intended to be granted, was in favor of a corporation or civil society which has ceased to exist for more than a quarter of a century -y •and by operation of law, as well as by the action of the Government, all the property belonging to the said corporation or society at the time of its dissolution revested in the public or grantor-, and became subject to distribution •according to the laws of the country.
    In support of this head see the whole subject exhausted, in the ease of Turpin v. Locket. (G Call. Ya. R., 113.)
    Oh the 13th of September, 1813, the cortes abolished tlie missions, declaring the Indians should no longer be under the control of tlie fathers, but that their effects should be delivered over into the hands of the ordinary, and alone subject to tlie control of the civil authorities. The sixth and last article of the decree provides that the lands belonging to tlie missions should be distributed in the same manner as provided for "in the. decree of 4th January, 1813. (See Col. Dec., vol. 5, p. 106.) Finally, by decree of 1st of October, 1820, all the monastic orders of every kind, colleges, and charitable, of every class, were suppressed. (Dec. Mex., vol. 5, p. 36; also Col. Dec., pp. 1-5; Id., pp. 108, 135-13S.) In December, in the year 1823, Saucedo acting as political chief, ¿he provincial deputation of Texas, acting under an order of tlie Supreme Government of Mexico, proceeded to make ail inventory of the mission property and to sell the same. In this inventory no mention is made either of the league of land near the mission or of the eleven leagues on the Medina. This property was sold by order of the Supreme Government of Mexico, and the funds remained subject to its disposition, having been sold in 1824 and 1S25.
    In tlie year 1829 some twelve or fourteen persons petitioned the political chief of the department of Bexar that the eleven leagues of land on the Medina and one league near tlie mission of San Jose might be distributed to them as tlie only surviving descendants of the mission of San Jose. This petition was referred to the ayuntamiento of Bexar, to ascertain whether the petitioners were the only descendants of the mission of San Jose, and to adopt such other measures in relation to tlie petition as they might deem proper. The names of eighteen descendants were reported, but no further action seems to have taken place. By the decree 177 of the Congress of Coalmila and Texas the Executive of the State was authorized to alienate the lands belonging to the extinguished missions conformably to the colonization laws. Immediately afterwards a strong remonstrance was made by the people of the mission to the Government, through their political chief, inasmuch as it was apprehended that this decree authorized the alienation of the house reserved for their pastor or curate. They did not pretend to claim these lands at that time, but desired to be remitted from the obligation of paying to the State for the mission property they had bought iu 1824 and 1825. For the history of the missions, not sustained by the-decrees and ordinances to which we have referred, we beg leave to refer tlie-court to Mo. 50, vol 1 of tlie missions near Bexar, iu the laud office, from page 1 to 160.
    IVe have argued this question as if we considered the dissolution of the corporation of the mission of San Jose necessary to prevent the plaintiff from 'recovering. Such, however, is not the case, 'l'lie regulars, the priests, the fathers, and tlie monks, under whose control and supervision these missions were, were tlie visible representatives of the corporations, the trustees of' tlie associated bodies. Tlie Indians were no part of tlie corporate body then ; they were pupils, tlie beneficiaries, for whose welfare the corporate bodies or fathers had associated themselves; the Indians had no voice iu choosing them, and language would have been as much misapplied in calling the Indians a part of the corporation of the mission of San Jose as it would be to call the students of a college a part of the corporation. All tlie property of tlie missions was, and must necessarily have been, held in trust by the fathers.
    It seems to be admitted on the part of the plaintiff that the lands were granted to a corporation, because if not granted to a corporation it was not granted at all for the want of a grantee. But we differ as to the nature of tlie corporation. We say the grant was to the mission of San Jose, for the use and benefit of the Indians then in said mission, and those who might be received into the mission afterwards. The application was in behalf of the mission people by the president of the institution. In the whole proceedings it will be perceived that the grant was asked for tlie nse and benefit of the'institntion» and granted as asked. It is not true, as has been stated, that Pedro Iiamirez, the president of the institution, ceased to act in the matter, and that the subject was prosecuted by a lay member. Ramirez attended to the proceedings-before tlie authorities in San Antonio, and when transferred to tlie vice royalty of Mexico lie addressed a letter to his brother, Friar Boque Ximenes,. requesting him to give it his attention there, setting forth the great necessity-of the lands to the mission people. The latter addressed the primitive judge-for the sale and composition of lauds, and styles himself as acting “for the religious affairs of the holy evangelical mission of San Jose.”
    VI. But if it he contended, as it was iu tlie court below, that the grant wav made to the Indians of San Jose, as tenants in common or joint tenants, then the grant fails and the plaintiff cannot recover, 1st, for want of certainty as to the grantees; 2d, for want of words of inheritance; 3d, because it is not shown that the ancestors of the plaintiff’s vendors were of the mission of San Jose at the time the grant was made.
    1st and 3d. It is said a tenant in common can recover to the extent of his interest, which, we do not feel disposed to controvert. What was the extent of the interest of the vendors of plaintiff iu the land in dispute is not shown. If the grant were made to six or seven hundred Indians, (and it is proved there was formerly that number,) their interest would probably be one throe or four-hundred til part of the land claimed. The grant fails for the want of certainty as to the grantees. The plaintiff tells us that this may be rendered certain. He admits we have no means of knowing who were residing in the mission at the time of the grant. But iu 1794 the missions were secularized and a census of the inhabitants made by order of the captain general, which is to be found in the General Land Office. He modestly aslcs this court to go to the laud office, examine the proceedings in relation to the secularization of the missions, and ascertain whether the plaintiff’s vendors descended from the list of the inhabitants then made. Admitting, for the sake of argument, that it was in proof before the court that the plaintiff’s vendors were the heirs and descendants of the persons enumerated as pertaining to the mission of San Jose in 1794, what is there to prove that those persons were descended from the Indians residing in the mission at the time the graut was made ? The census of 1794 only included those who were then in the mission. And it appears from the proof in the record, as well as from the general history of the missions, that the Indians were emancipated and left the missions after being there twelve years. So that nearly three generations or periods of minority, if you will, had passed away from the date of the grant till the secularization of the missious iu 179-1; and, according to tire proof, none of the Indians residing in the mission iu 1706, the date of the graut, resided there in 1794. If the grant took effect iu favor of individuals, it certainly was in favor of the Indians residing in the mission or in the village or town, if yon will, at the date of the grant. And the plaintiff, to recover, must show that his vendors were regularly descended from the persons who were vested with the title to the property. Instead of this, he has referred you to a list of the inhabitants, to be found in the General Land Office, and not offered in evidence in this case, purporting to contain a list of the Indians residing at the mission in 1794; then not only asks you to presume that the vendors of the plaintiff were descended from those Indians, but that the latter were also descended from the persons residing in the missions in 1760, although both presumptions are contradicted by the general history of the missions and the evidence of record.
    2d. Lor want of words of inheritance. (2 Black. .Comm., 296; 2 Amor. Dig., p. 27, sec. 3; 8 Johns. R., 8S5; 4 Kent Comm., p. 5, sec. 64; 2 Amer. Dig., p. 194, see. 2; 3 Wash. C. O. R„ 49S; 17 Johns. R., 221; 2 Wend. R., 110,' 112; Chan. R., 320; 8 Johns. R., 385.)
    We have here referred to the authorities collectively in relation to the two or three last points; but particularly call the attention of the court to the latter, as showing the nature of grants to towns or corporations.
   Lipscomb, J.

In my investigation of this case, I propose first to take up the doctrine embraced by the two first points made by the counsel for the appellee.

The broad proposition lias been laid down that, by the Revolution that separated Texas from the rest of Mexico, all titles of lands previously obtained were annulled, and that none of them, in propria vigore, could have a standing in court; that to give them life and energy, required the action or sanction of the political authorities of the new Government. That this doctrine can he found once to have had standing in the jurisprudence, though rarely openly asserted, of England, may he admitted; but it has long since become obsolete. And we are sincerely persuaded that a judicial recognition by this court of its resuscitation and its vital influence on rights of property would shock the moral sense of the civilization of the nineteenth century. In the early ages, when the rights of the common masses were but little considered and cared for, and all power and all right was permitted to be deposited in an individual personal"sovereignty, it is a melancholy fact that the doctrine was too well sanctioned by the practice of kings and princes of those times. Then the houses and lauds, flocks and herds, husbands, wives, and children of a conquered country became the spoil of the heartless conqueror. That age has passed away, and a milder and more enlightened one has ¿succeeded. The masses of the people have felt their strength, and made the tyrants feel it too, and in this moral regeneration a more elevated sense of right, of justice, and the laws of humanity has asserted an ascendency over the cruelty and despotism of tlie past. It instructs and commands, in a language that will be obeyed, the commanding general that he shall use no unnecessary rigor even to (he prisoners taken in battle; that to the peaceful citizen, not found in the ranks of war, ho is to extend the arm of protection to his person and property; that he is to make no innovation upon the laws and customs, only such as are necessary to the security of the army aud retention of the territory acquired. On this subject, public opinion in almost every civilized community, has proved one of the most humane and beneficial portions of the law of nations.

The language of Mr. Justice Baldwin, in the case of the United States v. Mitchell, (19 Pet. R., 734,) .is, “ That the inhabitants, citizens, or subjects of a conquered or ceded country, territory, or province retain all the rights of property which have not been taken from them bj1" the orders of the conqueror or the laws of the sovereign who acquired it by cession, and remain under their former laws until they shall be changed.” The language of the late Chief Justice Marshall in tiie case of Juan Perchman (7 Pet. K.) is so very explicit and appropriate that it will not be deemed improper to insert it. He says: uIt may he worthy of remark that it is very unusual, even in eases of conquest, for the conqueror to do more than displace the sovereign and assume dominion of the country. The modern usage of nations which has become law would he violated; that sense of justice and right which is acknowledged and felt by the civilized world would be outraged if private property should be generally confiscated aud private rights annulled. The people .change their allegiance; their relation to their ancient sovereign is dissolved, hnt their relation’ to each other and their rights of property remain undisturbed. It will be found on an examination that the several Florida eases decided in the Supreme Court of the United States sustain this conclusion : that in the absence of any order, decree, or law of the new sovereign, and in the absence of any treaty stipulations, individual rights of property would remain unchanged ; and that a treaty stipulation to that effect is nothing more than the assertion of a great moral principle of the law of nations, anti would have been equally as well settled without such stipulation. The same doctrine is believed to have been recognized by an English adjudication in the case of Picton, Governor of Trinidad', in the absence of any treaty stipulation, and resting solely for its support on the modern law of nations.

It would seem that, so far as respects a change of Government brought about by a conquest or a cession, the doctrine has been well and firmly established; and it would be difficult to conceive, on any known principles of reason or just regard to the rights of man, why a change made by the people themselves should subject their rights to different and harsher rules of construction. It is indeed a principle that seems to pervade the whole social relations of man that laws, customs, and usages, when once established, shall continue until abrogated by tlie introduction of new ones — our sympathies to such influences and reason approve them just and right; and in truth it is hardly possible to conceive of a civilized people existing where all laws and customs and all tlie elements of the social relations have been dissolved. Old habits and customs must prevail until new ones have been established. In the case of conquest it is undoubtedly true that it is in the power of the conqueror to destroy all the lights of the conquered, but in doing so the most flagrant outrage would be done to the moral sense of the age, an.d such as would never be presumed to have been perpetrated without the most positive and explicit affirmation of its author, and when avowed would justly place him beyond the pale of civilization. So in case of a peaceful change of government by the people assembled in convention for the purpose of forming a Constitution as the fundamental law for the protection of the three great objects of all governments based on the rights ■ of man — life, liberty, and property. It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.

It is not at all unlikely, nor indeed is it a matter of surprise that it should be so, that we are led to false and erroneous conclusions on the subject of eminent domain, fealty, and alienation of landed property by early impressions derived from sources entitled to more consideration in determining what the law is in the country of onr ancestors than in establishing what it now is in our land on those questions. Tlie great fathers of English jurisprudence built up a judicial system eminently adapted to sustain the whole object of the feudal tenures; with them a regard, bordering on idolatry, was inculcated for the prerogative rights of the crown. It was supposed to be the source of not only all grants of land, but of every other right and privilege, enjoyed by tlie subject, and this fount and head of all was called the sovereign power. It was a corporeal and personal sovereignty, vested in a particular individual, of a particular line of ancestry who wore tlie crown ; the right of eminent domain belonged to that individual without reference to the will of his subjects. All the land not granted by him or bis ancestors, and that became forfeited for offenses or reverted on failure of the heirs of tlie original grantee, was vested in him by virtue of the royal prerogative of eminent domain. He granted or regrauted with a liberal if not ¶, prodigal hand to his courtiers who were, perhaps, the very worst of his subjects; such as had ingratiated themselves into his favor by flattering his vanity or by catering to the indulgence of his guilty and depraved passions. The humble and lowly but meritorious subject seldom received liis bounty. But all were taught to look to the crown as the source of all rights and titles, and as the bulwark of social order. The landholder was instructed by the sages of the law that if the king was dethroned by a successful revolution, all titles would be abolished from the failure of the seource from which they had emanated; that when the fountain failed, the cisterns supplied from it were dried up. It was a part and parcel of a system than which none has ever been devised more eminently calculated to perpetuate hereditary monarchy.

With us the source of titles to land is as different as light from darkness. It flows from a purer and holier fountain. It is from the sovereign power, not an individual, personal sovereignty, but from tlie free and sovereign will of the people, defined and expressed by well-regulated laws of their own making; and so long as this source of power is sustained, all popular governments may reform their organic law at pleasure without destroying rights, even according to the most fastidious regard to the principles of prerogative rights; because by such changes the source of power being in the people, that’sourcc is not destroyed. Such was the revolution that changed the relations between Texas and tlie other parts of tlie Mexican Confederacy to which she had been attached. The majesty'of the law was not destroyed; it was in the people, and it still remained in them under a different modification of the government.

There is another aspect in which this question may be presented that will show still more conclusively the soundness of the principles discussed and of the conclusions to which we have arrived. The term “revolution,” when used in reference to governments, has a positive and a qualified meaning: when employed in the first it supposes a radical change of the whole system and structure of the government; when in the latter it conveys the idea of a modification only. The Revolution of Texas was clearly of the last description. As a seceding part of the Mexican Confederacy, she was not left without laws made by herself, or without the proper officers for administering them. This was practically the case. The old laws continued to be administered through the instrumentality of the old officers until the. establishment of a new system, and until changed were supposed to exert the same binding i'rfluenee in the protection of persons and property that liad been claimed for them before the relations between Texas and the other parts of Mexico had been changed. In fact the hotly of our jurisprudence remained the same until the introduction of the common latv by the act of Congress in 1840. Nor can it with any degree of propriety be said that wo were sustaining the laws of Mexico, with which power we were then in open hostility, because they were law's made by ourselves as much as by the other parts of Mexico forming the Confederacy. When those laws were made and rights acquired under them we were a part and parcel of the Republic of Mexico and participated in their making. They were therefore our own law's. The Revolution worked less of a change with us than it did in other parts of Mexico with which we had been associated by tlie Federal Constitution. We continued the same popular representative government emanating from the people. They' destroyed the Constitution of 1824, that had guarantied a free popular government, and submitted to a military despotism. And it may therefore be replied to the question so emphatically propounded to us — what was the obligation imposed on Texas to respect the law's of Mexico ? — none, not the least. Rut she was under the most sacred obligation to defend and support her own laws and to protect the rights of her own citizens.

If, however, we had arrived ata different conclusion, and believed that some affirmative act of recognition by the Government of Texas was necessary to give validity to titles that had been perfected under the former organization, whilst a component part of the Mexican Confederacy, it is believed that, so far as perfect titles are concerned, that recognition lias been abundantly made by the people of Texas, in convention and by the acts of Congress of the Republic, as it will be shown. It was said that by the Declaration of independence on tlie part of the people of Texas all laws in force before were annuiied, and that from its date until the Government was fully organized under the new Constitution, we were without law', either civil or criminal. A reference to that instrument affords no support to any such conclusions. It isa most eloquent exposition of the canses that induced the people to make, (hat declaration and encounter tlie peril it would necessarily draw' upon them ; but it contains nota syllable that is in the slightest degree repugnant to the declarafiou we find in" the first section of the schedule to the Constitution immediately following the Declaration of Independence. It is expressed in tlie words following : ‘

“That no inconvenience may arise from the adoption of this Constitution, it is declared by this convention that all laws now' in force in Texas, and not inconsistent with the Constitution,' shall remain in full force until declared void, repealed, or expire by their own limitation.”

What an absurdity to declare all law's shall continue in force if there were no laws ! And how senseless to suppose the existence of laws without validity in regulating rights and enforcing remedies! If the convention meant anything, it must be that the laws in force before the separation from the Mexican Confederacy should he so continued in force. The provision in the first section of the schedule is precisely the same that we find in most of the new constitutions made by the different States where no radical change is designed. The laws regulating the tenure of real estate are not in express terms mentioned, nor are those governing the acquisition and transmission of personal property; hut it has never been doubted that property of every description found the same protection derived from those laws that secured it to the owner before the change of the Constitution. It has never been doubted that the people in convention assembled had the faculty to annul and destroy private rights, but it is believed that to do so would require a direct affirmation of such intention. This power was exerted by the convention that framed the Constitution of the ltepnblie. In the tenth section of the general provisions, in the third paragraph of that section, will be found the expression of the will of the convention in the following words:

“Whereas the protection of the public domain from unjust and fraudulent ■claims and quieting the people in the enjoyment of their lands is one of the great duties of this convention; and whereas the Legislature of Coalmila .and Texas having passed an act in the year 1834 in behalf of General John T. Mason, of New York, and another on the 14th day of March, 1833, under which the enormous amount of eleven hundred leagues of land has been ■claimed by sundry individuals, some of whom reside in foreign countries and are not citizens of the Bepublic, which said acts are contrary to articles fourth, twelfth, and fifteenth of the laws of 1824 of the General Congress of Mexico; .and one of the said acts for that canse has, by the said General Congress of Mexico, been declared null and void;—
“It is hereby declared that the said act of 183-1, in favor of John T. Mason, .and of the 14th of March, 1833, of the said Legislature of Coalmila and "Texas, and each and every grant founded thereon, is and" was from the beginning null and void, and all surveys made under pretense of authority derived from the same are hereby declared null and void. And all eleven-league -claims located within twenty border leagues of the boundary line between Texas and the United States oE America, which have been located contrary to the laws of Mexico, are hereby declared null and void.”

If there had been no such provision as we find in the first section of the schedule this section just recited from the general provisions would most ■ clearly have shown that the convention did not intend to destroy any good and perfect titles held by a citizen of Texas before the change of Government, but those specially named and annulled. There is a provision in the treaty, by which the United States acquired Florida from Spain, annulling- the grants to the Duke De Alegon, to Bueno Bostro, ánd Vargas, from which a'legitimate conclusion, it was thought by the Supreme Court of the United Slates, could be drawn, that those were the only individual titles intended to he destroyed. The same conclusion could be drawn, that the convention did not intend to destroy any other titles than those named. Taking the first section of the sehedule'with the tentli of the general provisions it would seem that the convention did not intend to destroy any rights or titles but those enu-unerated and specially named.

"VVe have devoted more attention to this branch of the case than was, perhaps, called for. We have not done so, however, from any difficulty at coming to a conclusion, but from the fact that it is a question well calculated to disturb the tranquillity of the old settlers and those claiming under them. And we believe it is our duty to remove such groundless apprehensions, and to give repose on this subject. Much of the time of the court has been occupied in ■describing the distinction between perfect and imperfect titles. And wc have; uniformily decided that, in case of imperfect titles, to give them a standing in •court required the action of the political authority; but if consummated before the change of the Government and owned by a citizen of the Republic, they were valid without any act of the political authority. These decisions; sustain the conclusions we have arrived at on the point we have been considering; else, why the necessity of establishing the distinction if all were void, both perfect and imperfect, without the action of the political authority?

We will now turn our attention to the grant whieli was relied on by the plaintiff in this ease in support of his title to'the land sued for. (See tlie grant set out in the statement of this case.) We will endeavor to arrive at a correct construction of this grant from tlie terms in which it is expressed, and by resorting to such evidences as are accessible to us of the character and principles-on which the Indian missions were founded.

Tlie grant on its face shows that it was a limited title intended to be conveyed. It was granted to tlie Indians of the mission of San Jose, for their labors, pastures, and other purposes, without the right of alienating, ceding, or selling any part thereof without the superior license of the Supreme Government of the kingdom. Tlie plaintiff contends that it conveys the fee-simple,, subject to be divested only on a sale without the license expressed, and that it can only be taken advantage of by the Government.

Let us examine into tlie subject. Had the grant purported to be in fee, subject to a forfeiture on failure to do some particular act. perhaps there would be some soundness in the argument. But the inhibition to sell or alienate is-inconsistent with tlie fee. And there is another part of the grant that seems-to fix the true character and extent of the right couvoyed by the grant. It is-that tlie Indians are to receive it “sin media annata.'1'1 This has been translated in tlie record sent up “without interest.” This translation is not believed to be. correct; tlie correct translation is “without tlie payment of half-yearly profits; ” and a reason is assigned for such remission of the half-yearly profits; that is, because they are Indians of the mission of San Jose, to-whom tlie grant is made. It shows that tlie character of the grant was not to-be changed by such remission; that it would have been due on such-sale or grant; and tlie “media annata” characterizes it as a tenancy, and not as a. purchase in absolute dominion, constituting a feud. Drs. Manuel and Asso-say, in the Institutes of the Civil Law of Spain : We only observe one remarkable difference in point of succession or descent, for lib. 6, tit. 2G, p. 4, says that the succession does not descend beyond the grandson, but returns to tlie lord; and it is clear that, by the feudal common law, tlie succession was extended in infinitum. (2 White, 80.) And they say that the “ media annata ” was given in lieu of military service. (Id., p. 79.) The inhibiting the sale show's that tlie fee was intended to be retained in the grantor or feudal lord; • and but for the expression, that the “media annata”' is not to be exacted, the Indians would have been liable to pay it every half year so long as they enjoyed tlie usufruct.

It is probable, however, that this kind of title was known under the laws of' Spain as composition, and the title created the holder a tenant at will. In lib. 4, tit. 12, law 15 of the New Recopolacion, under the head of lauds to be let to composition, we find as follows : “All lands which are to be admitted to-composition, shall be sold at auction, and without reserve, to the highest bidders, as tenants at will.” (2 White, 53.)

And again, in lib. 4, tit. 12, law 19: “No one shall be admitted to composition who shall not have becu in possession thereof for tlie term of ten years, although he should state that lie was in possession at the time, for such circumstance by itself is not sufficient. And communities of Indians shall be admitted to composition in preference to other private individuals.” (2 White, 54.) The land in question was sold to the highest bidder; and it will be seen, by reference to the proceedings in the process of proving the title to the Indians of tlie mission, that their having been long in occupancy and pos— session of the lands for pasturing their flocks was urged as giving to them a right of preference over the claim of Castillo.

For the purpose of better understanding the principles on which the Indian missions were founded, the object of such foundation, and the customs and regulations by which they were governed, I will now advert to the oral testimony taken on the trial of this case in the court below. I am aware that it may bo said that this evidence is objectionable, as some more authentic evidence must exist on this subject. In answer, I will only reply, that I am not advised of such evidence, and if there be such it is not now accessible; and oral evidence of the practice and existence of those institutions, if it is secondary evidence, is resorted to because better cannot be procured. And it is a remarkable coincidence that the regulations prevailing in those institutions were-in accordance with the legitimate object of their foundation. I shall mainly rely on the evidence of Col. Navarro and Erasmus Seguin as found upon the record before us.

Col. Navarro states that when he first knew the mission of San Jose there were about six hundred natives there; that these were afterwards killed off, died, or went away, and decreased yearly, until, the last he knew of them, there were only ten or fifteen left; that the Indians of the missions were in a state of pupilage, under the control and guidance of the fathers; that they owned no separate property, but that all the property was held in common, the fathers receiving and selling the products of the Indians’ labor; that the property of the mission was held in los manus mortuous or mortmain; that all the missions on San Antonio river were extinguished by the Government of Mexico about the year 1822 or 1823, and the lands and property appertaining to missions distributed; that witness was commissioned by the Mexican Government to assist in the distribution of the lots and solares near the missions pertaining thereto; the natives were preferred; that on the extinction of the missions all the mission property reverted to the public, and became subject to, distribution as other public property; that witness afterwards, as commissioner or agent for the Government to deliver titles to hinds, did make a title to Ver-mendi for six leagues of land of the lands that formerly pertained to the extinguished mission of Refugio; that when the missions were extinguished the mission property was delivered over to the ordinari; that the missions in the valley of the San Antonio river were under the patronage and protection of the order of Gaudalupe or Gaudalupans, and were founded by the brothers for the propagation of the faith.

Erasmus Seguin states that the Indians lived in a community under the control and direction of the fathers. The products of their labors were received by the fathers. At the end of ten years the Indians were considered as having been converted, and after a probation of two years more they were permitted to leave the mission, and were then considered as entitled to the privileges of citizenship. Before their conversion and the expiration of the two years’ probation they owned no separate property, bnt everything was in community under the control of the fathers; but after their conversion they were given a. suerte or lot of ground, and a title made to them in their own name, which land they had a right to sell, or any of their property, as any other citizen.

The conclusion to be drawn from this evidence is that whatever may have been the object of the founders of the missions, practically they were seminaries for instruction in Christianity and the arts of civilization of such Indians as from time to time should belong to the mission, and that during such connection they were in a state of pupilage to the president of the establishment, and that twelve years was the duration of such pupilage. A grunt then to the Indians-of the mission of San Jose, even if there had boon no words of limitation in the grant, may well, as it was b.y the defendant’s counsel, be compared to a grant made to the students of a manual-labor institute of lands for their experimental farms, or to the students of a university for a campus or common for exer-ciso. In such case it could not for a moment he contended that the right of property was granted in fee to tlie particular students who might, at the time of tlie grant, belong to the institution or to their heirs; but it is manifest that it would only grant the right of way to such of them as from time to time should belong to tlie institution; and should the institution from any cause become extinct, no right would survive to the descendants of the pupils.

The evidence of Mr. Seguin is entitled to great consideration on this subject, because he is a very old man, and was born and always lived in the immediate neighborhood of tlie mission. From his evidence it is clear that as long as 'these Indians were in a state of pupilage they did not enjoy the rights of citi.zenship, but after their pupilage had expired they were considered as naturalized ; were permitted to leave the mission, and had grants made to them in •their own names of a suerte, (a small lot of ground,) which they liad a right to sell, or to sell the profits, as any other citizen. It is worthy of notice that the president of the mission, in his opposition to Castillo’s application, ai.eges ■that these Indians stood in need of the lands for the use of pasturing their flocks thereon, and does not use any term from which it can be inferred that he claimed it for them in full property.

I will next proceed to notice the action of tlie Government in relation to ■the missions and the property appertaining to them. It appears from the .archives of the land office (vol. 50) p. 14-24, title Mission) that tlie missions in the valley of San Antonio were established by the royal order 22d October, 1729; that there was an order for the secularization of these missions, and the distribution of all property appertaining to them for secular purposes, dated 10th of April, 1794. Under this order of secularization it seems that certain proceedings were had at the town of Bexar, by which the lots and all the personal property pertaining to the missions were inventoried and a part of the stock distributed. This appears by reference to the archives in the General Laud Office, and is also shown by tlie evidence embodied in the statement of facts. Missions, so far as related to the faculty of holding property by any tenure, were •from that time considered as extinguished. They existed, however, as a cor-1 poration until dissolved by the decree of the Cortes in 1819. They were extinguished also by the Mexican Government in 18 — . By decree Ho. 177 of the Congress of Coalmila and Texas, of date 29th April, 1831, in relation to the lands belonging to tlie extinguished missions, we find the following action •of the Government:

“Art. I. The Executive is hereby authorized to alienate the lands that pertained to tlie extinguished missions, conforming, in so doing, to the colonization law of 24th March, 1824.
“Art. II. The town property or securities that pertained to said missions •shall be sold at public auction according to law.”

This decree makes a distinction between the lands that pertained to and the town property and securities of the missions. Tlie first was to be alienated in ■conformity to the colonization law. By this we can understand nothing to the contrary, but that it would have been granted to any colonist had application been made for it, or it would have'"been sold to a Mexican, under the XXCVTh article of the colonization law above mentioned. Mr. Navarro says ■that six leagues of the laúd that had appertained to the mission of Refugio were granted to Vermendi; and that lie, as commissioner or. agent for tlie 'Government, had delivered the title. It is very satisfactorily shown that as far as the Congress of Coahuila aud Texas had authority, such lands, after the extinguishment of the missions, were acted upon and treated as a portion of tlie public domain, and this too before the plaintiff in this suit pretends to have acquired any title to tlie land from the supposed surviving descendants «of tiie Indians of the mission of San Jose.

There is another reason why I believe the grant in this case was in composition. It is that the attorney at law representing himself as the attorney or agent in that court for the religious affairs of the holy evangelical mission of San Jose predicates the claim for the lands on the authority of law 10, tit. 12, book 4, of the New Reeopalacion, cited already in this opinion; and the approbation of the attorney general for the Crown was based on the same law. It will be seen by reference to this law aud to law 15 (same book and title) that all lands sold under these laws were only in composition, and the purchasers bought and received titles as tenants at will. If the clause against alienation had not been contained in the grant, I should still have been •constrained to the conclusion, from the proceedings in procuring it, that only tenancy at will was conveyed. In my judgment the protection was only expressed because the beneficiaries were Indians, and it was repugnant to law for them to alienate the lauds so granted. If the result of Castillo’s application had been favorable to him, I believe that he could have taken under the same laws, and only have been constituted a tenant at will; and as he was a citizen a.nd not an Indian, perhaps there would have been no inhibition in the grant against alienation ; but in the event of his selling, his vendee would have been only a tenant at will, and in this aspect it is not at all material to decide whether the grantees toojs: the land as a corporation or as a village or community of Indians, because, if taken in composition, the decree of title would be the same, and the law prohibiting Indian sales would be equally obligatory. I think it may be well doubted whether large grants of pasture lands were •ever authorized, in any case, by the laws of Spain. It seems to have been the policy of Spain, not only in her old dominion, but also in the colonies to encourage a pastoral life. This may fairly be inferred from the regulations of the Measta and the various decrees regulating the us'e and occupation of grazing lands. (See Royal Instructions for selling the San Merced, 2 White, 128, sec. 21; Id., p. 134, sec. 76; see also 2 White, 153, on the Commous and Pasture Grants.)

I not wish it considered that I give much weight to the proceedings at Bexar, in distributing the lots and property pertaining to the mission of San Jose, found in the General Land Office, because such proceedings were not made evidence on the trial; but I have referred to them merely as confirmatory ■of the parol evidence used on the trial of the cause in the court below.

There is one other ground taken by the defendant in this case that I will notice : that is, that if the grant is to be construed to be to the Indians of the ■mission, the plaintiff has not shown that the Indians he claims under are the descendants of those to whom the grant was made. The case was submitted to the court without the intervention of a jury, and the judge had to decide on both the law and the facts. If, in the opinion of this court, the fact of the vendors of the plaintiff', or rather of the parties under whom he claims, being descendants of those Indians has not been so made out, we would have boon •compelled to affirm the judgment of the court below, no matter what had been ■our opinion on the points presented; because it is that right that he claims. I do not understand that the only Indians admitted to a connection with the mission belonged to a particular race or family; but that it was for the instruction of the savages of different bands or nations; consequently the heir-ship by descent would be difficult to make out, and in this case is far from beii'g satisfactory. On this ground, also, I believe the plaintiff failed to make out his ca-e.

In conclusion, I am of opinion that titles, perfect at the date of the Declaration of Independence, and owned by citizens of the Republic at that time, have a standing, in propria vigoro, in a court of law; and that such titles do not require any action of the political authority to give them validity.

That such titles have received the affirmative action of the political authority in their favor.

I believe the judgment ought to be affirmed in this case, because the plaintiff has failed in showing title in himself ;

Note 8. — Hardy v. De Leon, post, 211; Kilpatrick v. Cisneros, 23 T., 113.

Note 9. — See Trevino v. Fernandez, 13 T., 630, for the discussion of the legal effect of composition grants.

That the grant relied on by him as the foundation of title only admitted the Indians of the mission of San Jose to composition, and that it constituted them tenants at will of the Government;

That, by the laws in force at the date of the grant, the Indians could not lawfully alienate their possessions without the consent of the Government;

That, having- seen no evidence of any authority or consent to such sale, it i3 void, and gives no title to the purchaser;

That the lands sued for became, by the extinction of the mission of San Jose, a part of the public domain ;

And that the judgment ought to be affirmed, and it is accordingly affirmed.

Judgment affirmed.  