Thomas G. McGehee v. Mariana A. Dwyer, Ex'x, &c., 22 Tex. 435

Wheeler, Ch. J. There does not appear to he the slightest foundation in the evidence, documentary or oral, for the supposition that the plaintiff’s title was fraudulent, or a forgery. On the contrary, it hears upon it every mark of genuineness, and is supported by full and satisfactory evidence of its fairness, in every particular. The existence, genuineness, and loss of the original concession, is proved by ample evidence to that point. It is shown to have existed, and to have had public notoriety, by documentary evidence which is indisputable, as well as by the testimony of witnesses. (Lewis v.

San Antonio, 7 Tex. Rep. 288.) It is objected, that the concession, as copied in the communication of the political chief, is wanting the signature of the governor. But it is proved, that the original had his signature; and apart from the oral evidence, the fact that it was recognized as genuine, and acted on by the political chief, to whom it was communicated by the governor, is proof of its genuineness.

That the political chief did not copy the signature in his communication, is no evidence that it was wanting to the original.’ Many instances might be shown of the communication, by officials, of the orders of their superiors, which give only the date and contents of the order, omitting the signature, as in this instance. Some of them may be found in Austin’s pamphlet, addressed to his colonists, in 1829, republished by Mr. White, in his Collection, (1 White’s Recopilación, pp. 586, 597.) Such, I apprehend, was the general, if not the universal custom, in similar communications.

It is supposed to cast suspicion on the concession, that it is not found upon the list furnished by the secretary, Del Yallee, as certified from the General Land Office. But this does not purport to be a list of all the concessions, or titles, which had been made by the government; but only of those, “the original documents of which are on file in these archives,” of which copies had been furnished to the party. Why the original of this concession was not on file in those archives, and consequently not includéd in this list, is fully explained by the evidence.

It is no objection to the title extended by the commissioner, Navarro, that the land was without the limits of De Witt’s colony. The commissioner did not act, in this instance, by virtue of his authority as commissioner of the colony, but by virtue of a special authority, delegated to him for this particular service; which was entirely independent of his office, as commissioner of the colony.

The commissioner derived his authority to act from the governor, through the political chief, under whose immediate instructions he acted; the latter had to judge of the genuineness and effect of the governor’s order; and the commissioner had only to look to the instructions of the political chief, and carry them into effect; and it must be presumed that he obeyed those instructions, in executing the commission, and extending the title, until the contrary appears.

It is objected, that the consent of the empresario of Milam’s colony, was not obtained to the appropriation, by the grant, of the lands within that colony. It is to be observed, that this was not one of the objections to the title pleaded in the court below. If it were not a matter of the public history of the country, that there was in fact no acting empresario of that colony, to give his consent, we might hold, in accordance with Norton v. Mitchell, 13 Tex.

Rep. 47, that the objection first taken in this court, should not be entertained; for that, as the consent of the empresario was not required to be embodied in the title, had objection been made to it on this ground, the consent of the empresario might have been proved.

But this would be presuming against the known fact, that the empresario of that colony never carried his contract into effect; that no commissioner ever acted in conjunction with the empresario, to extend titles to colonists within this colony; and that the commissioner, (Talbot Chambers,) who was appointed (in 1834,) long after the contract had expired, (in January, 1832,) in extending titles, did not act in conjunction with the empresario, hut with Williamson, his reputed agent; that, in fact, there was no acting empresario at the time, to consent, or whom it was' necessary to consult.

But if we may not judicially take notice of these matters, connected with the history of that colony, and are to suppose that Milam was acting as empresario of the colony, at the time, the failure to obtain his consent would not invalidate the title. The additional

article to the instructions to commissioners, of the 4th of September, 1827, requiring the consent of the empresario, was solely for the benefit of the latter. It was a matter between him and the grantee, with which the government had no other concern than to see that his rights, when he saw fit to assert them, were not prejudiced, by action to which he had not consented. But this question is put at rest by the decree, No. 314, (Laws and Decrees, p. 308,) which annuls the additional

article to the instructions to commissioners, and declares, in its third article, that “ no change shall be made in any “ of the possessions, that should have been given with the consent of the empresarios, or without it, provided that the express “ concession of the executive, and the other formalities the laws “provide, shall have preceded.” And the succeeding

article provides, that if prejudice shall have resulted to the empresarios, by the previous distribution of the lands, their sole recourse shall be, to be compensated by other vacant lands, sufficient for the families for which they contracted. This is an express legislative affirmation of the validity of the grants there located, and removes all room to question their validity, on that ground.

The objection, that the grant was divided, and titles issued to the land in several parcels, is answered by the fact, that this was the customary mode of disposing of grants, by the officers entrusted by law with the disposition of lands, and not in contravention of any provision of law. There is no ground to question' the legality of these dispositions of grants like the present, and they have received the repeated affirmative sanetion of'the decisions of this court. (Jenkins v. Chambers, 9 Tex. Rep. p. 231; Hancock v.

McKinney, 7 Id. 384.) We are of opinion, that there is no well founded objection to the validity of the plaintiff’s title; and that there is, therefore, no error in the judgment, and it is affirmed. Judgment affirmed.