This was an action to try the title to a tract of land situated in the County of Harrison, in the State of Texas.
The plaintiff relied for recovery upon title derived under a grant from the Governor of Coahuila and Texas, made whilst Texas was a province of Mexico. The defendant rested his defence upon the invalidity of the grant in question, and this invalidity was asserted upon the admitted fact that the land it embraces was situated, at the time the grant was made, within the twenty frontier leagues bordering on the United States, and the absence of any evidence tending to show the assent to the grant, or its approval by the national executive of the republic. The court held the grant, without such assent or approval, to be illegal and void, and excluded it from the jury. The ruling in this respect constitutes the only error assigned, which is properly before us for consideration.
The irregularities in the record mentioned by counsel we cannot notice, as they do not constitute the ground of any alleged error.
The absence of the signature of the judge of the court to the bill of exceptions is not made the subject of objection by the parties, and we hence infer that its omission was a mere clerical error.
The doctrine, that prior possession is sufficient evidence of title to maintain the action against a mere intruder and trespasser, we do not find at all controverted or doubted by the court below.
The only question presented by the bill of exceptions, and this arises upon the ruling mentioned, relates to the validity of the grant produced. The petition to the Governor upon which the grant was made, solicited, by way of sale, eleven leagues from the vacant lands of the department. This bore date in March, 1831. The decree of concession, which followed in April of the same year, gave the quantity as solicited, and directed the proper local officers to give possession of the land to the grantee, and issue to him the appropriate title. Neither the petition nor the concession designated the land; and, in September, 1835, the grantee applied to the alcalde of the district to place him in possession, and to issue to him the title of the eleven leagues in the immediate vicinity of the 'Red River of the Nachitoches.' By order of this officer the land was surveyed, and on the 22d of the same month formal evidence of title was given to the grantee. The land thus ceded lay within twenty leagues of what then constituted the boundary between the province of Texas and the United States.
The power of the Governor of Coahuila and Texas to make the grant was derived from the Mexican colonization law of August 18th, 1824, and the legislation of the State, which that law authorized. The object of that law was to induce the settlement of the vacant lands of the Republic. To this end the several States were empowered, under certain restrictions, to provide for the colonization of the lands within their limits. Their legislation was, of course, subject to the provisions of the fourth article of the law mentioned, which declares that 'those territories comprised within twenty leagues of the boundaries of any foreign nation, or within ten leagues of the sea-coast, cannot be colonized without the previous approval of the supreme general executive power.'