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Opinion of the Court.

possession of the said sitios, and will extend the corresponding title to the same, first classifying the quality of said lands, so as to be able to state the amount to be paid the state, which payment must first be paid by the interested party in the manner and terms specified in the last part of said article 13, making the payment at once as provided by this article, in the treasury of the state, receipt of which he will present to the secretary, so that the secretary, upon sight of it, will proceed to give [the] interested party copy of his petition, with which he will go to the commissioner and have its requirements. complied with.

"ECA Y MUSQUIZ. (One rubric.)

"SANTIAGO DEL VALLE, Secretary. (One rubric.) "

The court next found as follows:

"Second. That Fortunato Soto was duly appointed by the proper authority of the state of Coahuila and Texas, as commissioner to extend titles in the colony contracted for by Juan Carlos Beales and Diego Grant. That his commission of authority was dated March 13th, 1834, and was signed by Francisco Vidann y Vallasteñor, the then governor of the state of Coahuila and Texas and by J. Mijuel Falcon, the then secretary of state of Coahuila and Texas.

"Third. The plaintiffs are the legal heirs of Juan Gonzales, the beneficiary and grantee of the concession referred to in decision number one, above set forth.

"Fourth. That defendants are in possession of the land described in plaintiff's petition.

"Fifth. That the boundaries of the colony contracted for by Juan Carlos Beales and Diego Grant are shown by the following contract of colonization entered into with the citizen Diego Grant and Don Juan Carlos Beales as empresarios to introduce 800 families in the vacant lands of the state."

The contract referred to, between the government of Coahuila and Texas and Juan Carlos Beales and Diego Grant, is then set out in full, the application bearing date October 5, 1832, and the concession October 9, 1832. It included, first,

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Opinion of the Court.

a grant for the whole territory lying between the Rio Grande and Nueces rivers, and bounded south by the state of Tamaulipas, and north by the 29th parallel of latitude; secondly, a grant of a tract formerly granted to Woodbury and Vehlein, and subject to their right to colonize 200 families, embracing a territory over 200 miles in length, bounded north by the 32d parallel of latitude, south by the old road leading from Rio Grande to Bexar, west by the 100th degree of west longitude, and east by other grants in the interior of Texas. The first tract adjoins the southwest corner of the second; and Kinney County, in which the lands in question are situated, lies in the angle between the two tracts, but outside of both.

The 9th article of the concession to Beales and Grant has the following provision: "This colony shall be regulated and their lands divided by a commissioner of the government, who in proper time will be appointed, and will discharge his duties in accordance with the laws and instructions that for said officials have been approved by the honorable Congress."

The bill of exceptions then exhibits two maps given in evidence by the plaintiffs, certified by the Secretary of State of the United States, one being a copy taken from Disturnell's map of the united Mexican states, published in 1847, and deposited with the treaty of Guadalupe Hidalgo, 1848; the other showing the boundary line between the United States and Mexico, as laid down in Melish's map, published in 1818, and agreed to in the treaty of January 12, 1828. These maps show that the province of Texas did not then embrace any territory west of the river Nueces.

In view of this evidence and the findings of the court thereon, the plaintiffs then offered in evidence a paper purporting to be a testimonio, with formal and sufficient proof of its execution, by which testimonio it appeared that in April, 1834, the possessory title of the land in controversy was extended to Juan Gonzales, the ancestor of the plaintiffs, by Fortunato Soto, commissioner for the state in the colony of Rio Grande. This paper was in the Spanish language, and together with the authentications and translation thereof, had been recorded in the clerk's office of Kinney County on the 21st of June,

Opinion of the Court.

1878, as appears by the clerk's certificate thereon. The following is a copy of the said document as translated, to wit:

"In the village of Dolores, state of Coahuila, Texas, on the 18th day of the month of April, 1834, I, the citizen Fortunato Soto, as commissioner for the supr. government of the state in the colony of the Rio Grande, and in compliance with the contract celebrated (entered into) between said government and the citizen Juan Gonzales, and in accordance with the requirements and stipulations which the law provides in this matter, I extend the present title, in the name of the government and in accordance with the provision in its superior decree of the 16th of October, 1832, contained in the aforesaid contract, to the citizen Juan Carlo Beales, as attorney of the said citizen Juan Gonzales, which power of attorney he presented, of the eleven sitios of land to which said contract has reference, which said lands in their actual state I have classed as pasture lands, and which said boundaries are: Commencing from the place where the boundary line of the property of Doña Dolores Soto de Beales forms an angle between south and west, a line will be drawn to the south, prolonging in the same direction, which will there terminate the said section at a distance of thirteen thousand seven hundred and fifty varas ; from whence another line will be drawn in a right angle, which, crossing the arroyo (creek) of Piedra Pinta, will have the length of twenty thousand varas; and from this point another line will be drawn towards the north parallel with the first, and of the same length, and ends with another line to the east that, crossing the same arroyo (creek), will extend up to the place of beginning; so that in all form and right he, the said citizen Juan Gonzales, may at all times prove his rights to the said eleven sitios of land, I went with his attorney, citizen Juan Carlos Beales, which, after being surveyed by the surveyor, C. Guillo Egerton, I put him in possession, and taking him by the right hand, and in the name of the supreme government of the state, walked him over the said eleven sitios of land and caused him to perform all the other ceremonies, as provided by the laws in this case of real possession, being witnesses the citizens Eduardo Little, Enrique

Opinion of the Court.

Brown and George Colwell, beside those of my assistance, all residents of the village, who for the validity of it signed with me, and the interested party said day, month and year, pledg ing himself to replace the proper paper with the seal that is required, not having at present any of the seal in this village nor its surroundings.

"FORTUNATO SOTO.

"THOS. H. F. O'S. ADDICKS, De Assistencia.
"THOMAS PLUNCKETT, De Assistencia.
"JUAN CARLOS BEALES.

"ENRIQUE BROWN.

"EDUARDO LITTLE.

"GEORGE COLWELL."

"I, the citizen, Fortunato Soto, commissioner for the Supreme Government of the state of Coahuila and Texas in this colony, certify that the preceding testimonio is a literal copy legally taken from its original, which is of record in the proper book of these archives, and in compliance with article 8 of the instructions of the 25th of April, 1830, I give the present to the interested party as title, which is given on common paper, not having any of the proper seal, and for the validity of the same I signed it with the assisting witnesses in said village the 18th of April, 1834.

"FORTUNATO SOTO.

"THOS. II. F. O'S. ADDICKS, De Assistencia. "THOS. SAM. PLUNCKETT, De Assistencia."

To the introduction of this paper the defendants objected for the following reason:

1st. It has not been proved and recorded according to law, and its registration was not authorized by law when it pretends to have been recorded. No protocol or matrix of it has been shown ever to have been filed in the archives of the General Land Office, and no such is or ever was an archive of such office; no possession of the land claimed by any one holding under it has been shown; no payment of taxes thereon by plaintiffs, or any one for them, has been shown; no com

Opinion of the Court.

pliance with or fulfilment of the conditions of the law under which it purports to have been issued has been or attempted to be proved; and if it ever had any validity, it appears from the face thereof that it is such a claim as was never perfected, but wholly abandoned, and the land remitted to the public domain, and that it is a stale demand and void.

2d. It does not contain and is not based upon any executive grant, concession, or primitive title, nor does it contain any petition or application of the pretended grantee for a concession or for a survey of the land or the execution of final title of possession, nor any order referring it to the empresario order of survey, surveyor's field notes, or other constituent element of an expediente of final title, nor apt words to express a grant of land from the state by way of sale as required by law at its date; but it purports to be a kind of grant unknown to and not authorized by such law, and it appears therefrom that the same issued without authority of and against law.

3d. It purports to have been issued by one unknown to the law, claiming to exercise the powers and perform the functions of an office not then existing, but the existence, powers, and jurisdiction whereof had already been repealed, styling himself commissioner of a colony not shown to have existed, and which, it is well known, never did exist; and it is claimed to be title embracing and relating to land situated in Kinney County, as averred in the petition, which is well known to have been embraced within the Woodbury colony district at the date it bears, for which colony the person purporting to have issued it was not, and does not by the terms of the instrument pretend to have been, a commissioner or officer.

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4th. It appears therefrom that its matrix or protocol, if it is in fact a testimonio of such, contained no executive concession or petition for such; no petition or application for a survey of the land, nor for the execution of final title; no reference to the empresario order of survey nor surveyor's field notes, and no one of the requisite antecedent steps, papers, documents, or acts entering into and forming the expediente of a valid final title or grant under the law in force when and where it purports to have been issued; none of which can be established by parol.

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