Sam Houston, President, etc., Appellant, vs. James F. Perry, Executor of S. F. Austin, and Sam'l M. Williams, Appellees, 3 Tex. 390

Chief Justice Hemphill delivered the opinion of the court,. Mr. Justice Lipsoomb not sitting. The defendant at the trial excepted generally to all the documents offered as evidence by the plaintiffs, consisting of a translation of the contract between the empresarios and the government of Coalmila and Texas, the original being in the land office; a power of attorney from S. M. Williams, one of the empresarios, to Stephen F. Austin; the other, the commission of the commissioner, R.

Peebles; the abstract of titles issued by the commissioner to the colonists, and two books-from the general land office, purporting to contain the original titles issued to the colonists in the said colony. No special objection to these documents, or any of them, is specifically stated; and whether they are all impugned on the same, or on what grounds particularly, we are not informed. Waiving all remark on the imperfection of the bill of exceptions, we proceed to state our conclusions on some of tlie principal points discussed in tlie able argument of the counsel for the appellant.

The circumstances under which this opinion is prepared will not permit an examination of all tlie questions suggested or investigated in the brief. I am of the opinion that there was no error in permitting the translation of the contract between the appellees and the state of Coahuila and Texas to be offered in evidence.

The translation was legally authenticated, and, by law, is rendered prima, fade evidence, if the original record would have tieen evidence. [Laws of 1846, p. 387.] The original is stated, in the bill of exceptions, to be in the land office; and this is authenticated in the form required by law, for the authorization of papers emanating from the executive department of the state of Coahuila and Texas. [Decree 19, Art. 51, p. 31, Laws C. and T.; Art. 141, Constitution of Coahuila and Texas.] The presumption of law is, that the document in the land office is not a second or third copy of the protocol remaining in the archives of the government of the' state of Coahuila and Texas, but is the original copy or testi-monio issued to the empresarios at the time of the execution of the contract.

Yarious provisions of law required empres-arios, under severe penalties on refusal, to deliver to the-•commissioner of the general land office all documents in relation to land titles which had been and were considered archives-[Laws of 1837, p. 44]; and the contract with the empresarios, being an essential constituent of the archives of a colony, it is but. a reasonable inference that this paper was deposited in compliance with the requisitions of law.

The commissioner was under no legal obligation to receive any other document in evidence of the contract between the state and the empresarios, than the one forming a portion of the archives of the land titles of the colony, and the translation offered must, prima fade, be presumed to be a copy of the document thus legally received. The translation is admissible only on the supposition that the original document could be offered in evidence without proof of its execution.

This appears to be conceded; but as-the judgment will be reversed and the cause remanded, the question will he left open for future consideration and decision. There was no necessity for proof that Austin was duly empowered by Williams to act on his behalf in making this joint contract with the government. The question! of his authority was one of the determination of the executive; and having been decided by him, is not open to re-examination. They are treated throughout the instrument containing the terms of the •contract, as joint empresarios, and as such they must be regarded.

As the ground of exception to the introduction of the commission is not stated, I shall not undertake to conjecture and examine all the possible objections which might be raised to this document, as an instrument of evidence to establish facts for the purposes of this suit. Why it has remained in the hands of the commissioner to this period is not explained; and ■no question appears to have been raised as to the necessity of the proof of the signatures of the executive and secretary.

I ■can perceive no advantage in introducing both the abstract of titles as well as the originals themselves, unless for the purpose •of comparison, and of showing that there are no others in the book of titles except such as were found there at the formation of the abstract. The object of their introduction was to prove the number of titles that had issued, and of this fact the originals furnished the highest evidence, and which must be ■conclusive, unless upon proof of their forgery, or that they were issued fraudulently, or to fictitious persons.

No suspicion has been thrown upon any of the titles produced as evidence, ■and which were issued before the closing of the land offices. For these, according to the decisions at the last term, the •empresarios would, certainly, be entitled to the premium corresponding with the number of titles issued. But for those issuing after the close of the land offices, the empresarios are not entitled to recover any premium.

The former furnish presumptive evidence that the grantees are colonists settled within the limits of the contract; the latter being illegal and contrary to law, are not evidence of any such facts as would authorize a recovery in this action. The act? of an officer having competent authority may be presumed to be in conformity with law, .and as affording proof of the facts upon which such action was founded; but when done in the exercise of usurped powers, they are not only null, but raise no presumption that such facts existed as would, had the jurisdiction been vested which justified its exercise.

The empresarios are entitled to their premium for all settlers introduced into the colony or country before the declaration of independence, through the agency, or at the expense, of the former. And where no titles have been issued, or they are ■contrary to law, the fact of the introduction of colonists, and that they should be regarded as settlers of the colony, must be proved by appropriate evidence.

The jury, in their verdict, state that titles were issued to one hundred and fifty settlers, as appears from the abstract of titles in the land office, and the original titles on file therein, and the testimony of Horace ■Chrisman. Had all of these titles been issued by a legitimate commissioner, the finding, upon their evidence, would not have been vitiated by the additional statement that the verdict was based also upon the testimony of a witness to the same facts.

As a matter of practice, juries should either not state the evidence upon which their conclusions or facts are founded, or, should they do so, and the facts have been established upon the highest evidence, this should alone.be referred to, and not to such secondary evidence as may have been admitted during the progress of the trial. The depositions of the witness might have been received had the titles been inaccessible. The observations are applicable to such titles only as emanated before the business in the land office was suspended.

The titles issued after that period, and the testimony of the witness that there were such titles prove no facts conducing to support the claims of the petitioners. Had the -witness stated that these illegal titles had issued to actual settlers in the colony, this would have been competent evidence to establish the fact of the actual existence of the guarantees, and that they have been received as colonists under the empresario contract. But there is no legal evidence in the record to prove the number of settlers who, in consequence of the closing of the land offices, had not received their titles.

The jury, in a subsequent portion of the verdict, described the one hundred and fifty grantees as families, and award a corresponding premium to the petitioners. The -slightest examination of the titles shows that many of them were issued to single men; and the verdict can only be accounted for on the supposition that the titles were either not inspected, or the jury were not aware that the amount of their award should be affected by any considerations in relation to the-capacities of the grantees as single men, or as heads of families.

Their attention does not appear, in any shape, to have been directed to the law which should have regulated their action in this particular. Their verdict is so palpably against the evidence (had it been all legally admissible) that, on that ground, a motion should have been made for a new trial. And had there been no other objection to the judgment, it would have been found, perhaps, impossible, under the rules of practice, for the want of that motion, to have revised the decision of the lower court,, although the verdict is contrary to the evidence.

The important points raised in this cause have been glanced at very cursorily; and it is to be regretted that, under the circumstances, they could not have received a more thorough examination. The judgment of the court below is reversed, and the cause remanded for a new trial.