
    Bissell, Adm'r, v. Haynes and others.
    The controversy between Powers & Hewitson and De Leon was as to the boundaries of their respective colonies, and as to territory within the ten littoral leagues. The decision of the Federal Executive, in favor of tho latter, therefore, carried with it the assent of the Rodera I Executive to the oolomzafion by him of territory within tho ten littoral leagues and tho boundaries actually established by the subordinate officers of tho Government in carrying the decision into effect, the Coleto and Guadaloupe to the gulf, and acquiesced in by both empresarios, must he regarded as tho true one. (Note 102.)
    "We have ruled in several ea3es that to authorize the granting of land lying within the littoral or border leagues required the action ot both tho Eedeial and State authorities. So far we have thought we could go in expounding tho law applicable to those lands. Bat whore there 1ms been a contestas to which had the superior claim to tho bounty of the Government, and it had been decided between the conflicting claimants, we never havo claimed the right to revise the correctness of tile decision of the former political or judicial authorities of this country before tlie revolution. (Note 103.)
    
    See this case as to presumptions in favor of tho acts of the authorities of the former Government, even if the courts would revise those acts.
    
      Quere? As to the rights of an empresario to assign his contract so as to authorize the assignee to discharge the duties of empresario to dispose of it by will with tlie same effect, and whether a part of his succession, in the absence of a will to be administered, &c.
    ■Where the empresario died, the commissioner for extending titles, appointed before the decease of the empresario, was authorized to continue to issue titles to the colonists without the customary report as to the qualifications of the applicants ai\d the vacancy of tlio lands, except where the applicants were foreigners, and the fact that the application was referred to an empresario ad interim, whose authority did not appear, and reported upon by him, did not vitiate the title.
    Appeal from Callioun. This was au action commenced on the 19th of June, 1849, by Bissell, administrator, to try title to that tract of land embracing the city of "Lavaca.
    The plaintiff in his petition represents that, as administrator of the estate of Silas P. Griswold, deceased, in the fall of the year 1847, he located a certain tract or parcel of land in Calhoun county, on the northwest side of Lavaca bay, beginning at the margin of said bay at the month of Bell creek, (settingforth the locations and certificates.) The petition avers a survey, and that George Haynes, George McConnell, and Cock claim the land adversely to the plaintiff by mesne conveyances from one Maximo Sandies, who received a pretended title as a colonist of Martin Be Leon to one league of land from Fernando De Loon, a pretended commissioner of Martin Be Leon’s colony. The petition avers tlint Martin De Leon’s' colony did not include the land claimed by the plaintiff, hut. that it was within the ten littoral leagues reserved by the Government of Mexico, and that the pretended colony of De Leon abated, by his deal h, long before the title to said Sanches was issued ; that Sanches abandoned the country in 1836, and went beyond the Bio Grande with its enemies, where he died. ■ The plaintiff prayed process, that the defendant’s title he delivered up to be cancelled, for possession and for costs.
    Tile defendants appeared and pleaded not guilty, statute of limitations and occupation for a year, and valuable improvements. But everything respecting the defense of the statute of limitations and valuable improvements will he omitted in the statement of the ease, because no decision was made upon them.
    There was a trial; a verdict and judgment for the defendants; mo-" tion for new trial overruled ; plaintiff appealed.
    The proof by the plaintiff was, his certificate, locations, and surveys, and a connecting survey of one Cooper, all of which seem to have been duly proven, and the plaintiff" identified the locus ■in quo by practical surveyors.
    He proved by Fernando De Leon that lie knew Sanches when he lived in Victoria, from 1828 to 1S36; that Sanches left Texas in 1835 or 1836, and went to Matanioras with the Mexican army when they retreated from Texas; that witness, as commissioner of Martin De Leon, made Sanches a title to a league of land, lint, does not know that the land now in controversy is a part of that league; that witness knows the. rancho formerly called San'Francisco; that it is on the Guadeloupe, below Victoria; that the father of the witness, Martin De Leon, died in August, 1834. With this proof the plaintiff rested his case.
    The defendants’ evidence :
    The commissioner’s grant to M. Sandies.
    Tiffs is the petition of Sanches to the commissioner, dated 18th March, 1885; the order, not signed, “Pass this, urging Hie citizen Placido Vendibles, empre- “ sario ail ■interim, that he inform me if that is so or not which is set forth in ■“ the petition of the party interested, and return the samethe report of Venebides, March 19th, 1835, to the effect that Sanches was a colonist introduced by his predecessor, was legally entitled, and that the land was vacant; the order of survey; the survey, which shows that the land lies on the west margin of Mal agonía bay; the approval and act, of possession of Fernando DeLeon, subscribed with assisting witnesses, reciting his authority as commissioner under the first and second contracts of Martin De Leon, and acting under the order of Placido Vendibles, empresario ad interim; and the consent of his Excellency, (he Vice President of the Republic, communicated by the Secretary of Relations to his Excellency the Governor of the State, and sent on the 10th of March, 1832, to the political chief of the department. This title was filed for record 4th April, 1839, and was recorded 4th April, 1840.
    Tiie receipt for the Government dues; occupation and cultivation.
    The chain of transfers to the defendants, duly recorded.
    The testimony as to possession, improvements, &e., is omitted.
    Hero the defendants closed.
    The plaintiffs then, as rebutting' evidence, read in evidence the translation of the original contract and other documents of Martin De Deou.
    1. A letter of Juan Jose Hernaudez, dated 2Gth March, 1825, to the acting Governor of Coahuila and Texas, reporting that foreigners were settling about Victoria, and giving his opinion that the empresario, Martin De Leon, did engage with tiie most excellent provisional delegation, the then Government of Texas, to found and build that town with Mexican citizens, &c.
    2. The decree of Gonzales, (May 17th. 1825,) ordering the political chief of Texas to report the facts in relation to De Leon’s contracts, tiie place at which he was to settle the families introduced by him, &c.
    3. The report of Jose Antonio Saucedo, dated Bexar, 10th June, 1825, unaccompanied by any documents, hut stating that De Leon had authority from the provisional delegation to lay off the town of Victoria, on tiie opposite side of the Guadaloupe, south of the Ataseoato road, at the place called Cypress Grove, (El Sabinal.)
    4. The decree of tiie Governor, referring the whole subject to the Baron Bastrop, member of the Congress from Texas, for a report, dated 14th July, 1825.
    5. The report of Bastrop, dated Saltillo, July 30th, 1825. This report refers to the proceedings of the provisional delegation of the 13th April, 1824; contains De Leon’s petition, dated April 8th, 1824, to he allowed to found a town, with a public square and streets, on the river Guadaloupe, at a distance of about ton leagues beyond La Bahia del Espiritu Santo, under the appellation Muestra Señora De Guadaloupe De Jesus, and representing that lie had forty-one families,giving the names, which desired to settle there, &e., &c.
    6. The action of the provisional delegation, dated 13th April, 1824, granting tiie right to lay off the town, with sundry privileges, and declaring that in the distribution of lands there should be observed the strict provisions of tiie colonization law, and only authorizing a grant to eacli individual of land for a house, farm, and field.
    7. A letter of M. De Leon to the Governor of the State of Coahuila and Texas, complaining of the interference of the foreigner, Green DeWitt. This petition admits that the boundaries of De Leon’s colony had never been defined, but claims that the alcalde of La Bahia (Goliad) had assigned them, and adds, “It is understood by tiie families of the settlement that its boundaries “are from tiie Anastasia ford, where the road from La Bahia to Nacogdoches “crosses the river Guadaloupe, on a straight line north to tiie La Baca creek, “ and with these two streams. La Baca and Guadaloupe, eastward to the line “of the ten coast border leagues, which district of country is well known to “them, and for tiie possession of which I now claim your favor and protection, by virtue of the ninth article of the supreme decree of August 18th, “1824,”‘&e.
    Ho therefore prays for a commissioner to establish the boundaries so as to include the land so described. This claim is supported by the same documents referred to by Baron Bastrop and the recommendation of Saucedo, the political chief, that De Leon have preference over DeWitt. This is dated 1st of August, 1825.
    The Governor decrees that they all be annexed and passed upon.
    8. The decree of Governor Gonzales as to tiie controversy between DeWitt and De Leon, after reciting the substance of the 2d article of De Witt’s contract, (“in which is included tiie boundaries of the settlement (amparo) of the “ citizen Martin De Leon,”) which required him to respect all possessions given to settlers who occupy, &c., to the effect—
    1st. That the resolution of the ex-provisional delegation of Texas, of the 13th April, 1824, in relation to De Leon’s authority, was sufficient to authorize the settlement, and that lands should be distributed and the town founded in strict conformity with the colonization law of the 24th March, and pursuant to instructions and through the agency of a commissioner who would he appointed for the purpose.
    2d. * * Privileges only according to the colonization law.
    3d. Commissioner to be governed in'the distribution of land by the instructions already submitted to "Congress.
    4th. The decree made known to DeWitt.
    9. The letter of Saucedo, transmitting the petition of De Leon to the Governor for the appointment of a commissioner, (27th May, 1827,) referring to-the Governor’s order of Gth October, 1824, and praying that his, De Leon’s, boundaries should be ‘‘from the point at which the boundary line of the ten “ coast border leagues crosses the river La Baca; thence with its right bank “upwards, to the road leading from La Bahia del Espíritu Santo to Nacog- “ doches; thence on a straight line south with said road to the river Guada- “ loupe, at the place known as Anastasia ford; thence with the left bank of “said river to the farm (rancho) San Francisco, (which, although perhaps “ within the. coast border leagues, your petitioner thinks may be permitted to “ remain within ids boundaries, as he settled it previous to the publication of “ the general colonization law, and because he has his stock of cattle and “horses on it, aud accustomed to the, place,) and thence on a straight line to “ the river La Baca at the place of beginning, permitting him to designate by “landmarks the four points of his boundaries,” aud to notify Green De “Witt, &c.
    10. The direction of Victor Blanco, (in the capacity of Governor,) of the IStli May, 1827, to the political chief of the department of Bexar to recommend a suitable person to be appointed commissioner to issue titles aud found the town.
    Saneado explains that only a commissioner of boundaries was asked, and recommends himself to that office.
    11. The petition of De Leon, by his attorney, Raphael A. Manchóla, for an augmentation, and the decree of the Governor allowing the augmentation, in consideration of his introducing one hundred and fifty families.
    The survey, in addition to that already granted, to be as follows:
    “Beginning at La Baca creek, near the place where it is crossed by the “ middle road leading from La Bahia to Nacogdoches, and thence run one “ league with said creek upwards; thence a line shall be run parallel with “said road, to cross the river Guadaloupe at the Lego ford, until it strikes- “ Coleto creek; thence with the creek downwards; the survey terminating at “ its junction with the aforesaid Guadaloupe.
    “The empresario, De Leon, receives the lauds above described as augment- “ ation to his colony, aud therefore its adjudication is subject to the reqnire- “ ments aud provisions of the colonization law of the 24th March, 1825.”
    This contract bears date the 30th day of April, 1829.
    12. An order from the Governor to Navarro, commissioner of De Witt’s-colony, of the 2d May, 1831, in which he says that this augmentation, so far as the grant conflicted with the area granted previously to De Witt, was void, and that in all cases the older grant had preference, as only vacant lauds could be granted.
    13. The report of Aguirre to the permanent committee, datet] 23d July, 1831, upon a memorial,'&c., of the ayuntamiento of Goliad, in whicli he says:
    First. “ That although it appears throughout that tine provisional delegation granted permission to citizen Martin De Leon to establish a small “town outlie land situated between Lavaca creek and the Nneces. it also “ appears that it was not commenced until after the publication of the “ colonization law. It should have been done in strict accordance with its ■“provisions; for without it and tlie necessary and indispensable approval of “ tlie Executive, and this was never obtained, that undertaking- cannot nor “ ought it to be considered legal, nor should it in any manner whatsoever “ affect the rights of Power and I-Iewitson, the empresarios, whose contract is. “replete witli every requisite and requirement of the laws.
    Secondly. “'That the act of the political chief, appointing Fernando De “Leon a commissioner of boundaries, was a gross usurpation, and void.
    Thirdly. “Filially, tlie.nullity of the undertaking of Martin De Leon is “ made more apparent in the memorial referred to by the ayuntamiento claiming that it should be located within the limits o£ the coast border leagues, a “section of territory subject to the exclusive control of the General Govern-“inent, and which has in fact been ceded by it in favor of the empresarios, “Power and newifson, who made their contract with the General Govern-“meut and not with the Government of tlie Slate, iuasmuch as it had no “authority to that effect.
    “The political chief of the department, at the commencement of his report, “requests that no impediments may be created to prevent citizen Martin De ■“Leon from legally settling the families of his'contract within the limits of “the coast howler leagues which are to he settled by Ilewitsou. Hence it “appears that, in his opinion, De Leon’s settlement is not legally located, nor “on land disposable by tlie State, as is the fact with regard to the coast border “leagues, and in this case that petition would seem to say or infer that tlie “ authorities of tlie State assume powers expressly vested in tlie General Gov- “ eminent.”
    14. On the 23d July, 1831, Governor Letona states to the permanent committee that, having received additional documents from tlie political chief of the department of Bexar, the resolution of the Executive was suspended until the said “ permanent committee” give their opinion upon the documents recently received.
    10. On the 13th August, 1831, Aguirre reports for this permanent committee, and adopts the same views in still stronger language. They say:
    “That the pretensions of Martin De Leon, in the judgment of the under- “ signed, are destitute of all foundation, and neither Law, reason, nor that “ decorum which shonld he, observed by tlie Executive, can justify the annul“ment of tlie contract made with Power and I-Iewitscin.
    “ The consent of tlie General Government, which is by law made indispensably necessary to settle the lands of the coast border leagues, has been “ obtained only by Power and Hewitson, and by no other person whomsoever, ■“ which, as lias already been stated in the course of this affair, not only shows “that (he pretensions of citizen Martin de Leon and tlie inhabitants of Goliad “cannot obstruct the confirmation of their contract, but that, even if they “were admitted, the want of this requisite would render any colonization “ contract illegal.”
    Tlie committee affirm what had already been said as to the conflict between tlie Manchóla contract and Green de Witt, for the reasons given in the national •colonization decrees, as to grants of. previously-appropriated lands, and also declare this contract null, so’ far as it conflicts witli Power and Hewitson.
    Tlie Executive, on the, 18th August, 1831, says : “Having approved tlie fore“going report of tlie honorable, permanent committee convened as counsel, it “will therefore he only executed as therein expressed, together with tlie ■“former report, to which it refers, communicating- the same to the parties “interested for their own observance. — Letona.”
    1(3. On the 22d October, 1831, Manuel Mier y Teran addresses a letter to* the political chief of the department of Bexar, in which lie agrees with the reports as to the necessity of the assent of the President of Mexico to a grant within tlie coast or border leagues, but insists (as there is a conflict between, the two empresarios as to the lands “ between the month of La Baca to Arrau-zazie creeks”) on a reference of the question to the Federal President; he admits that Power may be maintained in possession of the lands between the Arrauzazie and Nueces.
    17. On Hie 1st of May, 1832, Bamoil Mnsqnis, the political chief of the department of Bexar, notifies Power and Ilewitson that (the Executive of the State having decided in his supreme order of the 10th of March last (this order does not appear) the execution of the resolution of tlie supreme General Government, relative to the preference to be given to the colonists of tlie contract of Be Leon, <ftc., &c.,) thej1' appear before that department, either in person or by attorney, in order to exhibit their documents by which to designate tlie boundaries of t heir colony and that of Martin He Loon.
    18. (Translated out of its order.) The appointment by Governor Yiesca, on the 4th December, 1828, (communicated 8th January, 1829, to tlie political chief of Bexar.) of Juan Antonio Padilla, as commissioner of lie Leon’s colony. This was in reply to the official letter of tlie political chief of tlie 27th May, 1827. (Ante, 9.)
    19. The appointment of Fernando Do Leon, ill 1831, as commissioner of the colony of Martin He Leon, to “distribute the lands yet pending,” referring specially to the instructions adopted by the Legislature of the 24th of February, 1827, ami referring also to article 7 of decree 128, adopted 7th of April, 1830.
    The plaintiff also, as rebutting evidence, read the translation of the contract of Power anil Ilewitson to colonize the littoral leagues on the Gulf of Mexico. 1. Hewitson's petition to colonize the coast border leagues “from the month “ of the Nueces river to that of La Baca creek, and from the Bay of Galveston “to the entrance of the Trinity.river to the Sabinas.”
    2. Tlie report of the Governor of Coalmila and Texas, in which is reported what littoral lauds are vacant. No mention is made of He Leon's col-oí^, and tlie supreme authority of the Executive of Mexico over tlie lands within the littoral leagues is also recognized. Tliis is dated 2d October, 1826.
    3. The consent in favor of Powera.nd Ilewitson, of Cañedo, dated 22d April, 1828, to oolonize tlie littoral lauds on tlie-Mexican Gulf “comprehended within “the mouth of the Nueces river to the mouth of the Lavaca creek,” subject in all respects to the general law of the 18th August, 1824.
    4. Power’s power of attorney to M. Husquis to proceed to Mexico and enter into the contract.
    • 5. The contract of Power and Ilewitson, of the lltli June, 1828, made with tlie Governor of Coalmila and Texas, the first article of which describes tlie boundaries, until the laud shall he shown him within which lie is to complete tlie colonization, as “commencing at tlie angular point where the Guadaloupe “river empties into the sea, on its left margin ; thence running tlie line on the “ coast of the sea towards the east to the point where tlie Lavaca creek empties “into the sea; thence running up the right margin of this creek for the exact “distance of ten leagues; thence run a line in tlie direction of the west, parallel with tlie coast, at the distance of ten leagues, to the Guadaloupe river; “thence running down tlie left margin of this river to the point of beginning.” Possessions witli corresponding titles to be respected. This embraced tlie locus in quo.
    
    
      0. Ilewitson and Power’s petition to the Executive of the State, praying an augmentation extending--to the boundary of the State of Tamanlipas, (the Nueces,) and the grant of that augmentation by tlie Executive of tlie State.
    7. The decree of the Yice President, Alanian, on the appeal asked by Teran. It ran thus :
    “ Tlie most excellent Yice President has been impressed with the great delay “of the document rnoyecl in consequence of the reclamation whieli has been “made by the Mexican empresario, Martin He Leon, to suspend the “possession of the foreigner, Santiago Power, of the littoral laud comprohemT-“ed between the month of Lavaca creek and that of the Nueces, and in con-; “formity with the information given on this subject by the most excellent “ General Manuel Mice y Teran, I have thought proper that the concession of “lands made to Power by the supreme Executive; Government on llie 22<1 “April, 1S2S, cannot be understood in any other light than in accordance; to “the 2d article of the general law of colonization of August, 1824, that is. by “the vacant lands, to the exclusion of those of particular dominion; that in “consequence Power must be placed in the possession of the land that corresponds to him, and tire same to Martin De Leon, which he has proved pertains “to him.”
    This is dated 23d December, 1831, and is directed to the Governor of Coahuila and Texas for his action.
    8. The decree in regard to the extinguished mission of Refugio, in which it is only necessary to notice that the 4th article provides that the inhabitants of Goliad who had petitioned for “lands in that point ” are to be provided for by Power and Hewitson, and that in laying- off the town at the mission of Refugio the 34tli article of the colonization decree and 2d article decree No. 177 were to be observed.
    9. The letter of Letona, Governor of 0. & T., dated 10th March, 1832, to (he political chief of the department of Bexar, reciting the foregoing decree of the Vice President of Mexico, and the Governor, reciting that “this disposition “ being in conformity with the orders that 1 have communicated to you on this “particular,” orders that this decree may be carried into effect, “ keeping in “ view the documents of both empresarios, and the ranchos or habitations of “ particular individuals that inay be found in both colonies must be respected, “as the empresarios are bound in their respective contracts.”
    And “in case that between the empresarios, to which reference has been “ made, there should be any doubt relative to the limits of their en- “ terprises, which cannot bo decided by the documents which they may pre- “ sent, you will form one document of the whole, and forward it to me for its “final decision.
    “If the Mexican owners of the indicated establishments have not titles of “ property to the lauds they possess, you will order them, in conformity to “ what is provided by the colonization law of 24th March, 1825, to petition this “ superior authority, asking for them to dispose of them as may be convenient “in this particular.”
    The plaintiff also read the translation of the several documents relative to the special commissioner, Jesus Dé Vadauri, as commissioner for the two enterprises of James Power and James Hewitson.
    Plaintiff also proved, by A. S. White, that he was one of the surveyors of Power and Hewitson’s colony; that he ran the line of the colony under a verbal order of Vadauri, the commissioner of the colony, some time in the year-1834; that he commenced above the Blanco, on the Nueces, and ran to the upper corner of tire town tract of Victoria, on the west side of the Guadaloupe; when he arrive,d at that point he was forbidden to cross the river by Sylvcster De Leon, who at that time was judge in that town; that Power claimed the right to colonize east of the Guadaloupe river..
    Cross-examined : Thinks Vadauri issued one title east of the Coleto, and west of the Guadaloupe. De Leon issued all the titles east of the Guadaloupe and west of the; Lavaca, and Vadauri, commissioner of P. & H., issued all the titles west of the Coleto to the Nueces.
    Here the plaintiff closed his rebutting evidence.
    The defendants then called Fernando Do Leon, who said that the archives-of De Leon’s colony, up to the war, were kept on loose sheets of paper; were never bound in a book; witness had charge of them till he was taken prisoner by General Rusk; they wore then in possession of Rusk and the army for sometime; some papers were lost; among the lost papers was an order in relation to the, colony, and one in relation to the ayuntamiento; witness did not recollect the contents; witness was one of tire commissioners who established the boundary line between De Loon and De Witt’s colony; it runs about ten leagues above Victoria; the line between De Leon and Power was not settled ■until after the order for that purpose came down from the General Government of Mexico, signed by Alaman; a commissioner to run- the line had been appointed previously, but all action was suspended on account of the difficulty between Power and De Leon; that, when the General Government decided the controversy between the parties, the political chief of Bexar came down in person and set'tled the line, giving De Leon the territory between the Lavaca and the Guadeloupe and in the forks of the Guadaloupe and Coleto; after this settlement of the boundary line, Power gave up bis claim to the land east of the Coleto and east of the'Guadaloupe ; Alio political chief went to see Power, and said lie, was going to fix his boundaries; from that time the business of the colony went on; witness, as commissioner of De Leon’s colony, as marked out, issued titles to colonists west of the Coleto, between the claims of De Witt and Power. De Leon had no land to settle his families.
    Cross-examined : De Leon had three contracts : the first for forty-one families, tile second to include that number to one hundred, the third for one hundred and fifty families; these contracts were among the archives when he deposited them in the land office; the political chief came down to settle the boundary line in 1832 or 1833; witness did not issue titles at first alone in the upper part, of the colony; witness extended titles to the colonists as they called for them, some lieie, some above, as they selected them.
    The court instructed the jury—
    If the jury believe from the testimony that Fernando De Leon liad the authority and consent of the General Government of Mexico to grant the land in question, the giant would be good, and you should find for the defendant.
    And for the plaintiff the court gave the following instruction :
    1. That if the jury believe from the evidence that the land embraced within the ten littoral leagues bordering on the Gulf of Mexico was not embraced within either of De Leou’s colony contracts, and that the lands in controversy do lie in that boundary, then the grant to Sanches is without authority, and void.
    And the court refused to give for the plaintiff the following instructions :
    2. That if the jury believe that'Martin De Leon had no subsisting contract with the State of Coalmila and Texas at the date of the grant to Sanches, then •that grant is void.
    3. 'That the- General Government of Mexico had no right to grant lands within the boundary of the State of Coaliuila and Texas with the consent and concurrence of the State.
    4. That if the jury believe from the evidence that De Leon never had any contract with the State of Coaliuila and Texas to colonize the-laud in dispute, the General Government could give no authority to colonize it, and a grant made by Fernando de Loon, as commissioner, is void.
    o. That if the jury believe from the evidence that the colonist, Maximo Sandies, was received after the death of Martin De Leon, they will find for the plaintiff.
    There were exceptions on both sides to nearly all the evidence introduced, but in the view taken of the case by this court they are not important.
    Errors assigned:
    1st. The court erred in admitting the grant to Sandies to be read without showing the authority of De Leon, commissioner, to make the grant.
    2d. The court erred in the instructions given to the jury.
    3d. The court erred in refusing to give instructions asked by the plaintiff.
    4th. There was error in the verdict of the jury.
    •6th. The court erred in overruling a motion for a new trial.
    
      £?. W. Paschal, for appellant.
    I propose to consider several of the errors under one head.
    Every instruction must be warranted by the evidence and not merely abstract propositions. (Holman v. Britton, 2 Tex. It., 297; Chandler v. The State, Id., 308; Means v. Robertson, 7 Id., 502.) If, therefore, upon the whole evidence of the case the court erred in his .instructions to the jury, either in giving or refusing instructions, it is such error as will reverse; the judgment. (Texas Reports, passim; Miméis v. Mitchell, 1 Tex. R., 433; Mercer v. Hall, 2 Id., 284.) It is equally certain that if upoit the whole evidence the verdict of the jury was palpably against law aud evidence, to refuse the new trial was error. (Briscoe v. Brouough, 1 Tex. B., 326.) Therefore the first proposition may be thus divided:
    Did the plaintiff show such a title as enabled him to recover against the defendant ?
    Second. Did the defendants show a better legal title than the plaintiff?
    Did the plaintiff prove such facts as to authorize a cancellation of the grant to Sanches as prayed for? Aud if so, did the defendants prove such facts as to avoid the plaintiff’s evidence?
    The plaintiff proved a valid location under a recognized warrant. This was sufficient evidence of a legal title to defeat any title not superior to it. This is as well declared by the act of 5th February, 1841, as the decisions of this court. (Hart. Dig-., art. 3230; Jones v. Menard, 1 Tex. R., 771.) The survey accompanied by the certifícate is sufficient to support the action. (1-Iart v. Turner, 2 Tex. R., 374.) 9
    It is not enough that the defendants in possession showed title. They must have shown a better title than the plaintiff, and such title as, had the plaintiff been in possession, they could have recovered against his title. (Stewart v. Hicky, 3 Howard, 750, 759, 760; Den v. Dimon, 5 Halstead, 156; Collins v. Tony, 7 Johns., 282; Jackson v. Pratt, 10 Johns., 3S7; Jackson v. Jackson, 5 Cowen, 174; Jackson v. Mein, 4 Cranch, 419; Proprietors of Township Ho. 6 v. McFarland, 12 Mass. R., 425 ; Adams on Ejectment, 32, 222, note 6.) Have the defendants shown a valid legal title?
    If the title to Sandies was void at its date it derives no support from our statutes, and is yet void and cannot serve as a color of title. No colonist’s titles were “ ratified and confirmed ” by the act of 1837, which were illegal and invalid ab initio. (Hart. Dig., art. 1860.) If the act was contrary to law, or prohibited by law, it was void ab initio. (Linn v. Scott, 3 Tex. It., 67; Hunt v. Robertson aud the cases in that opinion cited aud approved, 1 Tex. It., 748; League v. De Young, 3 Tex. R., 185; Toby v. Itaudon, 11 Howard, 493.) If the officer making the grant acted upon lands beyond his jurisdiction, the title was absolutely void. (Linn v. Scott, 3 Tex. R.; Russell v. Mason, 1 Téx. B., 72.) If the lands were reserved from the appropriation, or the grant was not authorized by law, or tiie officer making the grant had no jurisdiction, it was absolutely void. The State v. Delesd'ernier, decided at Austin at the late term, affirms Stoddard v. Chambers, 2 Howard, 318, and Polk v. Wendell aud Wilcox and McConnell.
    Judge Wheeler thus states the principle in the late ease of Hancock v. McKinney : “ Had the sale been'made by the officer without the authority of law, “or liad the law by express provisions or by necessary amendment, forbade “the sale as made, its effect would have been different. ‘No title can be “held valid which has been acquired against law.’ (2 Howard, 318.) A pat“ent ‘which has been fraudulently obtained or issued against law is'void.’ (Ib.)
    “ ‘There are cases’ said Chief Justice Marshall in the case of Polk’s lessee “e. Wendell et al., (3 U. S. Coud. It., 324,) ‘in which a grant is absolutely “ void, as where the State liad no title to the thing granted, or the officer “had no authority to issue the grant.’ These principles have been fully rec- “ ognized by the decisions of this court, and are not to be questioned. (Mason “®. Bussell’s Heirs, 1 Tex. B., 721; Goode v. McQueen’s Heirs, 3 Id., “211 ; Edwards et al. v. Davis et al., Id., 321; the Kepublic v. Thorn, Id., “100.”) These last decisions quoted by Judge Wheeler are particularly applicable to the case under consideration.
    The 3d article of the national colonization decree of 1824 declares that the colonization laws of States “ shall conform themselves in all things to the “constitutive act, General Constitution, and the regulations established by “ law.”
    And 4th article (correctly translated} declares that they (the States) cannot colonize any lands comprehended within twenty leagues of the limits of any foreign nation, nor within ten leagues of the coast. (2 Galban’s Decrees, p. — ; Dallam’s Dig-., 120.)
    The 7th article of the State colonization decree of 1824 conforms to this inhibition.
    “The Government shall take care that within twenty.leagues bordering on “ the limits of tlie United States of tlie north, and ten leagues, in a straight line, “ from the coast of the Gulf of Mexico, within the limits of tins State, there “ shall be no other settlements except such as merit tlie approbation of the su- “ preme Government of the Union, for which purpose all petitions on the subject, whether made by Mexicans or foreigners, shall be passed to tlie supreme “Executive, accompanied by a corresponding report.”
    The true construction, given by the highest officers of both Governments, manifestly appears in the very contracts of Power and Hewitson, and tlie effect of the absence of the Federal President’s approbation is seen in the decision of the highest authority of Coalmila and Texas, “the junta,” “ executive council,” “council of State,” or “permanent committee.” Dc""Leon was required in all things to conform to the instructions of Congress to the commissioners of the 4th of September, 1S27. The 5th article of these instructions declares that “The commissioner shall not give possession to any colonist settled or intended to settle within the twenty border leagues of the United “ States of the north, and ten littoral leagues of
    the Gulf of Mexico, “ unless the person interested shall present him a special order from the Gov- “ eminent, wherein the approbation of the National Government shall be manifested.” (Decrees C. and T., p. 245.)
    Well, then, might Aguirre sajr that an attempt to make a grant by the State authorities within the coast leagues, without the conseut'of the President of Mexico, was an usurpation of power of which the authorities had never been guilty. These universal constructions, given by the authorities at the time, are the best evidence of the law.
    This court has adopted a well-considered rule upon that subject. In Hancock v. McKinney it is said, that “ the construction of their powers and of the “ laws which conferred them, adopted and acted upon by the authorities of the “ former Government of the country, must be respected until it be shown that “ they have clearly transcended their powers or have acted manifestly in cou- “ traventiou of law.” This uniform interpretation by the Mexican authorities might be shown in all the border colonial contracts and in the practice of all the States. The subject, however, lias been settled in a series of decisions by this court, in which most of the accessible learning is exhausted.
    In Goode a. McQueen’s Heirs the chief justice reviews the whole subject, and arrives at the conclusion that the assent of the Federal Executive, of Mexico to make grants of land within- the limits of what was known as the border and coast leagues was required; and a grant made by the authorities of Coalmila and Texas within those limits is absolutely void, unless it be shown that it was made with the approbation of the Supreme Government. That the authority to control these lands having been retained by the Federal Government, no presumption can arise in favor of a grant made by the Executive of the State until it first be showu by proof that the power to make the grant had been conferred upon him. (3 Tex. B., 241.)
    Aud in Thorn v. The Bepublic, (3 Tex. B., 499,) the chief justice reviews the whole history oí the subject, supports the same views, and concurs with the Mexican authorities that after the passage of the national colonization decree of the 18th August, 1S24, the United Slates of the Mexican confederation possessed the property in the soil, and had alone the power, by direct agency, of appropriating- land to individuals. And in that case it w$s correctly held that in suits for the establishment of titles to lands lying within the border leagues under the-act of 9th January, 1841, the assent of the supreme national Executive to the grant or claim must he, specially averred and proved.
    In Edwards v. Davis (3 Tex. B., 321) Judge Lipscomb reviews the same authorities and arrives at the same conclusions.
    If I might venture a reason, in addition to the mans'- cogent ones given by this court, as to why a party who relies upon a title from Coahuila and Texas to lands within the coast and littoral leagues should aver and prove the Federal President’s consent, I should say that it is to be found in the 10th general provision of the Constitution of the Bepnblie, which, in express terms, declares all titles obtained contrary to the 4th article of the national colonization decree void ab initio.
    
    The proof clearly shows the land to be on the margin of Matagorda bay, and all the documents on both sides agree that it was therefore regarded by the previous Governments as within the littoral leagues.
    Let us admit that the grant was made by a commissioner of De Leon’s colony, and still it is void, for two reasons:
    1. The land was not within either of the enterprises of Martin De Leon, and is therefore within the principle of Bussell and Mason.
    2. The consent of the Federal Executive in favor of De Leon was never obtained; therefore his contract, so far as it extended to the border leagues, was void, unless Sandies produced a special authority from the President of Mexico in ills favor, which is not pretended.
    It is scarcely necessary to recapitulate the proofs to ascertain that the lands were not within De Leon’s enterprise. The first contract with the provisional delegation was only authority to introduce some forty-one families and lay off the town of Guadaloupe, Victoria. No particular boundaries were assigned. It was certainly within the power of the State Government in affirming- the act of the Provisional Government, which in itself, at that date, could possess no constitutional authority so as to give a title intrinsically valid, to impose on the party whatever condition it chose. (See Henderson v. Poiu-dextor, 12 Wheaton, 543; 6 Cond., GS2; Hancock v. McKinney, 7 Tex, B., 384.)
    The terms prescribed were that he should conform in all tilings to tiie colonization decrees. And when on the 27th May, 1827 De Leon named his own boundaries, there is no pretense that any portion of the country was within the ■ten littoral leagues, except “ perhaps San Francisco’s ranch,” which lie claims, “ because it was settled previous to the promulgation of the general colonization “laws.” And this ranche is proved by F. De Leon to bo on the Guadaloupe, a little below Victoria, where Egan now lives.
    And the augmentation begins at La Baca creek, near the place where it is crossed by the middle l-oad leading from La Bahia to Nacogdoches, and thence runs one league with said coast upwards, &c. The nearest this survey seems to approach the coast is Uve junction of Coleto with the Guadaloupe river.
    It may he as well here to remark that this contract proves the evidence of Fernando De Leon, as to there being “three contracts,” to be positively untrue. De Leon said there were three contracts, the first for forty-one families, the second for one hundred, and the third for one hundred and fifty. But this contract with Manchóla for De Leon, not only shows that it was the second, but that there could have been no other except the arrangement with the provisional deputation. It is expressly declared to be an augmentation of that •arrangement.
    The political chief, the Governor, the permanent committee, Teran, the Vice President, and M. De Leon himself, all concur in saying there were but tlie two contracts. F. De Deon states that he “ deposited all three of those “documents in the General Laud Office.” Why was not this second contract produced? Our flies were all that appertained to the contracts of DeLeon and Power and Hewitson. To the defendants maybe credited tlie ingenious device of producing such detached papers as they supposed favored them, and then calling this witness, who proved too much.
    The evidence of P. De Leon is clearly untrue in another statement. He states that the political chief came down and settled tlie boundaries, and that Power renounced tlie lands between Gnadaloupe and Lavaca in favor of De Leon. Who believes that such an act, if true, would not appear among the records?
    But suppose it were true, where ivas the authority for it? The Vice President only decided in favor of De Leon and tlie people of tlie mission of Refugio, so far as land had been appropriated prior to tlie colonization decree of the 18th August, 1824. The proceedings of the provisional department bear date tlie 13tli April, 1824. after the date of the colonization decree of tlie 4th January, 1823. (dee 1 White’s Recop., p. 5G2, at, scq.)
    
    The arrangement was between the dates of the downfall of Iterhido’s Imperial Government, on the 2i)th Hay, 1823, and the lustitueut Government of the 14th October, 1824. (3 Tex. R., 241.)
    Tills arrangement appropriates no land, but only gives tlie right to lay off a town and distribute labors among tlie inhabitants. De Leon himself founds tlie right to lands on the Oth article of tlie decree of 18th August, 1824, which gives a preference to Mexicans in tlie distribution of lands.
    The whole proceedings show that De Leon had not taken possession at the date of the State colonization decree of 1825, and that his own family was introduced after that time. The whole lands were therefore vacant within the' purview of tlie 2d article of the national colonization decree. Indeed, lie claims nothing as previously occupied except San Francisco’s ranch.
    The Governor evidently did not regard tlie decision of tlie Yice President as reversing any part of tlie decree of tlie permanent committee as to De Leon’s rights. Tlie Governor’s direction to the political chief was that the Vice President’s decree might he carried into effect, “keeping in view the documents of “both empresarios, and respecting the ranchos or habitations of particular in- “ dividnals.” And “in case that between tlie empresarios, to which reference 41 has been made, there should be any doubt relative to tlie limits of their enterprises, which cannot be decided by the documents which they may present, “you will form one document of the whole and forward it to he (the Governor) “for final decision.”
    Now, had the documents shown, which they did not, that any portion of De Leon’s original enterprise fell within the coast leagues, within which DeLeon liad made individual grants, tlie most that can be said is that pro tanto it could not be regarded as vacaut land under the 2d article of tlie colonization decree, which subjects to colonization purposes “those lauds of the nation not tlie ■“property of individuals, corporations, or towns.” But if any of the augmentation had fallen into the coast leagues, the contract being after the date of tlie colonization decree, pro tanto, it would have been void. And any renunciation of Power in favor of De Leon could only have enabled De'Leon to .solicit tlie consent of tlie President of Mexico, through tlie Governor of Coaliu-ila and Texas, as prescribed in the 7th article of the State decree of 1825. Consent of parties can never give jurisdiction.
    But where were tlie documents justifying such a decision as F. De Deoil testified to? Not in the contracts or elsewhere. And had any other proofs than the .contracts been offered, then it'was not tlie duty of the political chief to decide, “but to form one document of tlie whole, and refer it to the Governor “for decision.” Neither the political chief nor the Governor could make a .grant or confirm an inchoate grant to De Leon or any one else of lands within the littoral leagues, without the consent of the Federal President. This principle is fully discussed and decided in Edwards v. Davis, (3 Tex. R., 321,) in an opinion so masterly that it needs no farther illustration.
    The evidence of P. De Leon, therefore, is not and could not be true; and if true, the act of the political chief could confer no power beyond the contracts.
    Tlie locus in quo, therefore, was not in De Leon’s colony. It was in Power’s-colony. There was no consent of the Federal Executive of Mexico to colonize the coast leagues, and the grant to Sanches, in the language of the Constitution, was, from the beginning, void.
    
    The very fact that 'the land had been appropriated to Power, was such a designation of it to another-purpose as brings the case within tile principle in Delesdernier v. The State, and Perez v. Paul. A grant by De Leon was an invasion of. their rights. The 'settlement of their boundaries could only be made by the appropriate tribunals. This is expressly held in the colonial controversy of Penn v. Lord Baltimore, (1 Vesey, 444.) which was a controversy about the boundaries of Pennsylvania and Maryland.
    In England, a Court of Chancery took jurisdiction after the colonial office had fixed the boundaries, and compelled Baltimore to convey, according to-his contract with Penn. (2 Story, Eq. Jur., 743.) In Mexico, as the judicial power was very limited, to the political authorities alone belonged the decision of the question. Their decision was in favor of Power and HewiCson and against De Leon — a decision which has never been reversed, and is res adjudicate:, as to all rights of the parties — of the Texas Government and those deriving' rights under it. Sucli is the spirit of the opinion aud the.authorities quoted in Hancock v. McKinney. If the defendants sought to prove a reversal of the State decision by the Federal authorities, they should have proven it. Their detached documentary evidence proves the very reverse.
    We believe that it might be successfully contended that the court should judicially know the boundaries of the colonial contracts — as political divisions of the country — as facts which ought to be generally known. (1 Greenl. Ev., 0.)
    If we have established that the grant to Sanches was null and void, as the defendants claim under it, the decree to annul the grant, and thus to remove every cloud from the title of the plaintiff and every obstacle to his obtaining a patent, would follow.
    If the grant was void, the land was entirely vacant, and not covered by a “valid title,” and therefore subject to appropriation. (10th General Provision of the Constitution of the Republic; Hart. Dig., p. 38; Id., arts. 1818, 1853,) Indeed, if the land was not held by a perfect and valid title, or was not especially designated for a particular purpose or reserved from location by some positive law, it was within the class of vacant lands.
    Such is the purport of the whole class of decisions of Russell and Mason, Trimble and Smithers, Jones and Menard, 1 Texas; Brown and Horton, 2 Texas; and Paschal and Perez, Hancock and McKinney, and Howard and Wife v. Perry, decided at the late Term at Austin. The cases of Paschal v. Perez and Hancock v. McKinney are full and conclusive to this point. Aud the philosophy of the rule is well discussed and maintained in Howard and Wife v. Perry.
    To avoid, however, the force of these conclusions, the defendants pleaded several acts of prescription, &c.
    
      A. 8. Cunningham, also, for appellant.
    
      A. E. Phillips, for appellees.
   Lipscomb, J.

This was a suit to recover a certain tract of land. The plaintiff claimed title by virtue of a location and survey of a land certificate. Among other defenses, the defendants relied upon title derived from Maximo Sanches, under a grant to him from the State of Coahuila and Texas. There was a verdict aud judgment for the defendants.

The main controversy arises upon the validity oí the grant to Sanches; and if his title is good, tlie title derived from him by tlie defendants is not controverted.

Tlie plaintiff alleges that tlie court erred—

“In permitting the pretended grant to M. Sanches to be read to the jury “ without showing the authority of tlie commissioner, De Leon, and the admission as a colonist of the grantee by the empresario;” and this is liis first assignment of error.

The appellant, under tlie first assignment, has made two points in his brief. First, that the commissioner had no authority to extend titles to the land in question,because it was not embraced within the empressaof Martin DeLeon, and that it was within the ten littoral leagues; and secondly, there was no evidence that Maximo Sanches had been received as a colonist by the em-presario.

Tlie first assumes that De Leon, the empresario, was not authorized by the State Government and tlie Executive of the General Government to colonize the coast leagues, that is, the territory lying within ten leagues of the Gulf of Mexico. The documentary evidence is not very clear as to the time when De' Leon acquired a right to colonize tlie littoral leagues, nor are the precise boundaries of his contract well defined. His claim, however, is founded on his second or extension contract of-. It is shown, conclusively, that the controversy between De Leon and Power was in relation to the coast leagues, and it couid not have arisen upon any other parts or portions of their claims, because Power’s contract was for the coast leagues and' no others; and, therefore, without De Leon’s claim embracing also the coast leagues, there could have been no collision between them. The boundary of Power’s claim running upon a line ten leagues from tlie coast., eastwardly, did not interfere with De Leon until it crossed Coleto. De Leon claimed the Coleto as his boundary to the west, and down the same to the Guadalonpe, and all then between the Guadaloupe and the Lavaca. It seems pretty clear that the coast leagues, as far east as Lavaca, were embraced in tlie contract with Power. His proposition was to colonize all tlie coast leagues from the Nueces to the Sabine. He was confined east of the Lavaca. But whether De Leon had an older and better claim for that portion in dispute, we have not the means, if it was within onr province, to decide. His claim received at different terms the construction of both the State and Federal authorities. The State authority, though recognizing the contract of De Leon, gave a preference to Power’s, as being tlie better claim; and so, perhaps, it would have rested, but for the representation made by General Teran to tlie Federal Executive. He seems to have assumed the right of interference, as the highest military officer, because the disputed territory was within the coast leagues, and he gave the preference to De Leon, which received tlie approbation of the Federal Executive, and was communicated officially to tlie State Executive. From the time of this preference of the claim of De Leon by the Federal Executive being communicated to the State Executive, the latter seems to have taken the adjustment of the controversy into his own hands; aud it is shown by documentary and oral evidence that, under the authority of the State, De "Leon was put into the possession of the disputed territory and Power was excluded from it. It was in evidence that-tlie boundaries between the two empresarios were settled by the political chief ; and that Power and the commissioner for extending titles acquiesced in this settlement, is to be inferred from the fact that no titles were extended to his colonists within the bounds prescribed as belonging to De Leon. At any rate, there is nothing before us from which it can be inferred that there was any further controversy, and Power and Hewitson, if not satisfied, submitted to the decision.

After a protracted controversy we find De Leon in possession as empresario of the debatable ground by the action of the State Government. Is it shown that he is there with the approbation of the Federal Executive? Of that there can be no doubt. We have it from the archives of the Government, officially communicated to tlie State Executive from the Federal Executive. Wo have ruled in several cases that to authorize the granting of land lying within the littoral or border leagues required the action of both the Federal and State authorities, according to tire laws of Mexico and of tiro Slate of Coa-linila and Texas. So far we have thought we could go in exx>ouuding (he laws applicable to (hose lands. But where there had been a contestas to which had the superior claim to the bounty of the Government, and it had been decided between the conflicting claimants, we never have claimed the right to revise the correctness of the decision of tlie former political or judicial authorities of this country before the revolution.

It may lmvc been without any authority of law that General Toran instituted an inquiry and forwarded to the Federal Executive a memorial in relation to tlie controversy. lie seems to have grounded his right to interfere upon the fact that it belonged to'him, because that the lands'were within the littoral leagues, and were therefore at tlie entire disposal of the Federal Government. It is clear, however, that the Federal Executive did not, on liis representation, undertake to grant tlie possession to De Leon, but only communicated a preference for him ; and if the proceedings had stopped with tlie announcement of a preference, we would have been withontovidcnce of tlie concurrence of file State Government, and the issuance of a grant by the letter to Sandies would liave been a nullity, and lie would have had no title to convey. We have seen, however, that it did not stop here, hut that the State Government proceeded to award in favor of De Leon, and caused, by its authority, the titles to he extended to the colonists of De Leon.

If, however, the decision of tlie conflicting claims between De Leon and Power was subject to our revision, we would liot feel authorized upon the facts of this ease to annul what-had been done under the former sovereignty in reía- , tion to this matter, because that one of tlie contestants having withdrawn from the contest, left it to the other (o exercise all the powers claimed by the rightful owner of the disputed territory. And we could not disturb rights that grew up under that adjustment without destroying the titles of innocent grantees who had reposed in security upon the right of De Leon to have titles extended to them. Under such circumstances, we would presume that the decision in DeLeon’s favor had been sustained by proof that had been lost and not now accessible to us. In' general, wc would regard tlie acts of the former sovereignty not subject to revision; and it would require a clear case of usurpation, without any authority of law, to make the exception. (See Holliman’s Heirs v. Peebles, 1 Tex. R., 709.) And here the very judicious remarks of Judge Arrington, of the 12lh judicial district, seem to he so appropriate as to justify their insertion.

“It is objected, however, that the land, previous to 1820, was the property of “ private owners, and that it was taken for exidos, without compensation, in “ violation of the Constitution of Tamanlipas. Supposing that to lie true in “fact, although it is denied, can it he even imagined that tlie courfs of the “ new sovereign will undertake to revise the acts of a former Government as “ being in conflict with its organic law? Besides, as the Supreme Court of “ Texas has said, the interpretation of the Constitution in Mexican States is “ strangely confided to tlie legislative and not, as with us, to the judicial “ power. Our courts do not occupy the attitude of tribunals of appeal or error “in relation to irregularities committed by the former authorities of Tamau- “ lipas. We cannot afford to resuscitate and rake from the tomb of oblivions “years the forgotten controversies so long gone by.” (Ex parte District Attorney, Brownsville, November, A.D. 1852.)

The conclusion to which we have arrived is, that the contract of Martin De Leon authorized him to colonize the coast leagues between the Lavaca and the Guadaloupe and in the fork of the Coleto and the Gnadaloupe, and that the commissioner of that colony was legally authorized to extend titles to the colonists of the said De Leon, within those boundaries.

The second objection to the reading the grant to Sandies as evidence to the jury is, that tlie authority oí Fernando De Deon as commissioner is not shown, nor is it shown that Sanches had been received as a colonist in De Leon’s colony. The appointment of Fernando De Leon to the office of commissioner for the colony is shown by copies of tlie archives of the General Land Office, duly authenticated by the Spanish translator and the general commissioner of that office, and it was proven by oral evidence that he acted in and discharged the duties of that office; the presumption is, therefore, that he was legally appointed. It does not, however, rest upon presumption; because the documentary evidence shows that he had been appointed by the legally-constituted authority for making the appointment. The proof is, therefore, plenary, and not merely presumptive, as it would have been if it had not been sliown'that in his appointment the. requirements of the law had been strictly observed.

It is contended tiiat there is no evidence that Maximo Sanches had ever been received as one of De Leon’s colonists; that there is no proof that Placido Venebides, who reported in favor of Sanches as possessing the requisite qualifications, was tlie empresario ad interim, as lie styles himself.

Tlie petition to tlie commissioner for title is in the usual form; tlie grounds upon which petitioner rests his claim are that he is one of the colonists introduced by tlie empresario, Martin De Leon; tiiat lie is a married man, possesses the requisite qualifications; alleges that lie has never received title, and prays for a grant of one sitio, describing its location. This petition, is referred to citizen Placido Venebides, empresario ad interim, for his report whether tlie matters of the petition are true, to which there is a report signed by Vene-bides as empresario, stating that petitioner had been introduced by his predecessor, Martin De Leon, empresario. Tlie surveyor is ordered by the commissioner to make the survey prayed for, which is made and returned by the, surveyor to the commissioner, who then proceeds to extend the title in the usual form. The question arises on the fact tiiat Venebides is called and calls himself the empresario ad interim. Parol evidence shows tiiat Martin De Leon had dial before tiiat time, and that Venebides was the acting empresario to carry out the enterprise. There, is, however, no evidence to show when or by what authority he was constituted empresario' ad interim. It may have been by authority derived from his predecessor, or it may' have been under some municipal regulation of tlie colony. From the fact that the commissioner recognized him as occupying the position, the inference would bo that it was by lawful tenure until tlie contrary was proven. The commissioner, under a colonization contract, holds his office independent of the empresario, directly from the Government. And it is not reasonable to suppose tiiat lie would have acknowledged Venebides as the empresario for the time, if it had been self-assumed, without any authority for so doing. The presumption that Vene-bides may have been the legal representative of Martin De Deoil acquires, perhaps, some additional strength from tlie fact that these empresario contracts for colonization were not unfrequently transferred, and the transfer recognized by the Government; and it would seem to follow tiiat, if De Leon could have made an assignment of his contract, lie could have disposed of it by testament, or that it was such-a light as could have been and was perhaps administered upon as a portion of tlie rights pertaining to his succession. If we believed that, the reference to and tlie report oí tlie empresario was a necessary' element, constituting a valid title by the commissioner, we would have had to decitle'how far such presumption ought to prevail in favor of tlie action of the empresario ad interim; but we do not believe that the law required such reference, and its being practiced was at most only' matter of form.

As before said, the commissioner under the colonization law held liis office independent of the empresario, from the State Government, and he was clothed with very considerable powers in the extension of titles; and, with one solitary exception, lie judged for himself of the sufficiency of the qualifications of a colonist to receive title to tlie land petitioned for. He, besides, had authority' vested in him in the civil organization and municipal Gov-eminent of the colony. See the instructions to the commissioners issued from, the executive department of the State, of September 4th, 1827. (Laws Coalmila and Texas, p. 70, 71, 72, and 73.)

Note 102. — Do Leon v. White, post, 508; Kilpatrick v. Sisneros, 23 T., 113.

Note 103. — Smith v. Po\vert Id T., 146; same ease, 23 T., 29. The only recognized exception to this rule is where a title m the reserved leagues has been issued under the specific authority of a decree of the Congress of the State of Conhuila and Texas. (lBlount v. Webster, 16 T., GIG, Johnston v. Smith, 21 T., 722; Johnson v. Shaw, 41 T., 428.)

We have said that there is one exception to the authority of the commissioner to act independent of the empresario in the issuance of titles to the colonists, as to their qualifications, and that is in the case of colonists who are foreigners, and refers to the certificate they are required to produce from the authorities of the country from which they came, thereby proving themselves to be of the Christian religion and of good moral character; and in 2d article of the instructions above referred to it is enjoined upon him, “In order to guard against “false certificates, the commissioner shall admit none until after the empresa-rio, to whom they shall previously be transmitted for the purpose, shall give “information in writing relative to the legitimacy of the same.” We believe, therefore, that, unless in the case of foreigners asking to become colonists and to receive title, the commissioner could have acted upon his own responsibility, and decided without a reference to any one; and if he should seek information on the subject, he was not required to embody the information acquired nor the sources from whence obtained in the titles he extended to colonists. The title would have been valid without such information being set out in it. We believe, therefore, that the information derived from Yenebides is mere matter of surplusage, and as such it cannot vitiate the title extended to Sanches, and that title being a valid and perfect title, there was no error in permitting it to be read in evidence to the jury.'

From the views we have expressed, it is not material, as to the result of this suit, to inquire whether the court erred in the charges given and in the charges refused to be given upon the statute of limitations, because the title of the defendant having been shown by documentary evidence to be perfect and valid, the land embraced by it was not a part of the public domain, and was not subject to be located upon by the plaintiff; and that being the case, he is not prejudiced by the supposed erroneous rulings of the court on other matters. The judgment is therefore affirmed.

Judgment affirmed.  