Opinion of the Court.

extended in possession. The grant itself, as stated above, gave power and authority to the proper commissioner to extend it; and no further order for that purpose was required.

It was also objected that the testimonio was not written upon properly stamped paper. But this did not affect its validity. With a proper stamp, it would require no proof of its execution. Without a proper stamp, its execution must be proved. Jones v. Montes, 15 Texas, 351, 352; Chambers v. Fisk, 22 Texas, 504. The court finds that formal and sufficient proof of its execution was offered. We think that the testimonio was sufficient in point of form, and that it contained all the requisites necessary to invest Gonzales with title in the land delivered to him; and that the description of the land was sufficiently specific to identify it.

We are, therefore, of opinion that the court below should have admitted the testimonio in evidence, unless it was incompetent by reason of some matter or thing occurring after its execution and delivery to Gonzales.

Analyzing the various and somewhat confused and multifarious objections of the defendants, we find three such matters assigned as grounds for rejecting the evidence: First, the nonfulfilment of the conditions of the grant; secondly, that no protocol, or matrix of the concession or testimonio, was amongst the archives of the land office, nor on record in the proper county in proper time; thirdly, that, not being amongst the archives, and not being recorded in proper time, and never being followed by actual possession, the testimonio was an absolute nullity by force of the XIIIth Article of the Constitution of 1876.

These matters may constitute very good and substantial grounds of defence, and we are not disposed to intimate anything to the contrary in this opinion. But we think they can only be effectual by way of defence.

As to the supposed forfeiture for non-fulfilment of conditions of the grant, the only condition named therein is the payment of the purchase money. This was required by the 13th article of the law of the 28th of April, 1832, which, on this subject, declares as follows: "The purchaser shall deliver one

Opinion of the Court.

fourth of the value of the land granted to the state treasury, or where the executive designates, at the time of the sale; and the remaining three-fourths shall be paid, the first on the second, the second on the third, and the last on the fourth year, under penalty of forfeiting the right acquired in the part wherein this provision is not fulfilled;" that is, as we understand it, the forfeiture was to be in proportion to the amount not paid. Now, it is clear that the first payment was made in advance; for the grantee could not have obtained possession of his document of concession without such payment; and that he did obtain it is manifest, for the testimonio shows that it was exhibited to the commissioner. The other payments were to be made afterwards, and after the lands were extended, and the condition of forfeiture for non-payment was a condition. subsequent. Whether these payments were made, or not made, was not shown by proof at the trial. If not made, then there was a forfeiture which the government could enforce, either by judicial proceedings, or, perhaps, by granting the land to other parties. This forfeiture accrued, at the revolution, to the Republic of Texas, and to the State of Texas, when it became a state. By the constitution of the state, adopted in 1845, Art. XIII, it was declared that "all fines, penalties, forfeitures, and escheats, which have accrued to the Republic of Texas under the constitution and laws shall accrue to the State of Texas; and the legislature shall by law provide a method for determining what lands may have been forfeited or escheated." No such law was ever passed prior to the trial of this cause. We held in Airhart v. Massieu, 98 U. S. 491, 498, that, under this provision, the legislature must first act before any proceedings can be taken to annul the title of an alien, or any other escheatable titles; and this proposition would seem to apply with equal force to forfeitures. At all events, if a forfeiture for non-payment, or other condition subsequent, can be availed of by a private person, it can only be after he has shown some right to the land in himself, by virtue of a subsequent purchase or grant from the sovereignty of the soil; and, hence, it can only be set up by way of de

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fence after such purchase or grant is shown, and not as an objection to the admission of the plaintiff's evidence.

The importance of that evidence to the plaintiff's case is manifest. The extension of title by the commissioner, in these Mexican grants, completed the title without any patent or other act of the government, and notwithstanding the imposition of conditions subsequent. If the concession imposed conditions precedent, the case would be different. This subject is discussed in the case of Ianrick v. McKinney, 7 Texas, 384, 451, where the court, after examining some decisions of this court, says: "The conditions, in the cases cited by counsel, were conditions precedent; and not until after their performance, as we have seen, was the title to be delivered. Titles issued to colonists and purchasers under the colonization laws of Coahuila and Texas were of an entirely different character. Under those laws the title of possession was the final title, vesting the fee absolutely in the grantee. Conditions were annexed, but they were conditions subsequent, upon the non-performance of which the titles were subject to forfeiture, but until which the fee or proprietorship was in the grantee. They conveyed all the estate and interest which the government had to convey, as absolutely and to the same extent as did the delivery of the final title, or the final act of confirmation by the Spanish government, after the performance of the conditions. No act of confirmation by the government was required or was contemplated by the colonization laws; but when the title of possession issued, the government had done the final act on her part." The testimonio in that case was substantially the same as in the present, and was sustained as conferring title upon the party.

As to the matter of registration, the laws of Texas prior to the adoption of the constitution of 1876, so far as we can discover, did not require that a title should be registered in the county, or deposited amongst the archives of the land office. in order to give it validity. It was only void as against third persons acquiring title from the sovereignty of the soil, not having notice of it. In this respect the laws of Texas were not dissimilar to those of most of the states of the Union.

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Indeed, the original titles could not be deposited in the land office when, as was often the case, they belonged to the archives of the foreign government at Saltillo, or other place where they were originally deposited. Copies of them, amounting to second originals, or testimonios of the final title, might be so deposited, or might be registered in the proper county; but even that was not necessary to their validity, although it might be necessary to protect the owners against titles subsequently acquired without notice of their existence. It is manifest, however, that titles thus subsequently acquired, if relied on by a defendant, must be proved as matter of defence, and cannot be urged against the competency of the plaintiff's evidence of his title.

This, as we understand it, was the condition of things (except with regard to certain extensive and fraudulent grants, which were specially abrogated by constitutional or legislative enactment) until the adoption of the constitution of 1876. By the XIIIth Article of that instrument it was decreed as follows:

ARTICLE XIII. SPANISH AND MEXICAN LAND TITLES.

"SECTION 1. All fines, penalties, forfeitures, and escheats, which have heretofore accrued to the Republic and State of Texas, under their constitutions and laws, shall accrue to the state under this constitution; and the legislature shall provide a method for determining what lands have been forfeited, and for giving effect to escheats; and all such right of forfeiture and escheat to the state shall, ipso facto, enure to the protection of the innocent holders of junior titles, as provided in sections 2, 3, and 4 of this article.

"SEC. 2. Any claim of title or right to land in Texas, issued prior to the 13th day of November, 1835, not duly recorded in the county where the land was situated, at the time of such record; or not duly archived in the General Land Office; or not in the actual possession of the grantee thereof, or some person claiming under him, prior to the accruing of junior title thereto, from the sovereignty of the soil, under circumstances reasonably calculated to give notice to said junior

Opinion of the Court.

grantee, has never had, and shall not have, standing or effect against such junior title, or color of title, acquired without such or actual notice of such prior claim of title or right; and no condition annexed to such grants, not archived, or recorded, or occupied as aforesaid, has been, or ever shall be released or. waived, but actual performance of all such conditions shall be proved by the person or persons claiming under such title or claim of right in order to maintain action thereon, and the holder of such junior title, or color of title, shall have all the rights of the government which have heretofore existed, or now exist, arising from the non-performance of all such conditions. "SEC. 3. Non-payment of taxes on any claim of title to land, dated prior to the 13th day of November, 1835, not recorded, or archived, as provided in § 2, by the person or persons so claiming, or those under whom he or they so claim, from that date up to the date of the adoption of this constitution, shall be held to be a presumption that the right thereto has reverted to the state, and that said claim is a stale demand, which presumption shall only be rebutted by payment of all taxes on said· lands, state, county, and city or town, to be assessed on the fair value of such lands by the comptroller, and paid to him, without commutation or deduction for any part of the above period. "SEC. 4. No claim of title or right to land, which issued prior to the 13th day of November, 1835, which has not been duly recorded in the county where the land was situated at the time of such record, or which has not been duly archived in the General Land Office, shall ever hereafter be deposited in the General Land Office, or recorded in this state, or delineated on the maps, or used as evidence in any of the courts of this state, and the same are stale claims; but this shall not affect such rights or presumptions as arise from actual possession. By the words 'duly recorded,' as used in sections 2 and 4 of this article, it is meant that such claim of title or right to land shall have been recorded in the proper office, and that mere errors in the certificate of registration, or informality, not affecting the fairness and good faith of the holder thereof, with which the record was made, shall not be held to vitiate such record."