Joseph P. Bradley

“ The citizen Juan Gonzales, before your excel'y, with greatest respect, states that, in accordance with the provisions of the law of colonization of the state, your excel'cy will please grant me the sale of eleven sitios of land of those vacant lands of the department of Monclova and places by me designated, promising to introduce in them the number of stock required by the same law, and paying the value, delivering at once the fourth part of the same, and binding myself to fulfill all requirements of the same law. ”

“ One of these objections was that it does not connect itself with any grant, concession, or primitive title, nor contain any petition for a concession, or for a survey of the land, or execution of final title of possession, nor any order referring it to an empresario's order of survey. It is a sufficient answer to the first part of this objection to refer to the testimonio itself, which does in terms refer to the original contract between the government and Juan Gonzales, giving its date, and purporting to be executed in accordance with its provisions. ”

“ 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 ”

“ A man whose title was good in 1876, when the constitution was adopted, whether his nuniments of title were on record or not, could not be deprived of it by a simple ipse dixit of the constitution any more than by a legislative act. ”

“ In Yoakum's History of Texas (volume 1, p. 317) we find the following notice of the colony: 'During the latter part of the year 1833 began the settlement of the colony of Beales and Grant. They had obtained a concession for 800 families, to be located between the Rio Grande and the Nueces. In the last days of December, about sixty colonists, under Mr. Beales, reached the new settlement, and laid off the town of Dolores, on Las Moras, a small stream about ten feet wide and two feet deep. ”

“ This is an action of trespass to try title, brought by the heirs of Juan Gonzales against the International & Great Northern Railroad Company and their tenant in possession, (Ross,) to recover 11 leagues of land situate in Kinney county, Texas, adjoining the Rio Grande. The defed ants pleaded not guilty, and title from the sovereignty of the soil. At the trial a jury was waived, and the court found the facts specially, (which are set out in a bill of exceptions,) and rendered judgment for the defendants. The judgment is based upon the failure of the plaintiffs to make out their title ”

“ 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 ”

“ This objection assumes that possession was given on the date of the testimonio. But that does not appear. The latter was executed at Dolores, ten or a dozen miles from the premises in question. The document had to be prepared after the parties returned to the village. They may not have returned the same day. All favorable presumptions will be made against the forfeiture of a grant. As before said, it will be presumed, unless the contrary be shown, that a public officer acted in accordance with the law and his instructions. ”

“ The objection is wholly without foundation. Gonzales had a grant which authorized a commissioner to extend it is possession. The proper commissioner did so extend it, and this was shown by the testimonio,-the proper documentary evidence for that purpose. In the recent case of Hanrick v. Jackson, 55 Tex. 27, the supreme court of texas says: 'We know of no authority for saying that the title is void because [the officer] has not incorporated into it the evidence of the concession or sale. If there was in fact no concession, there could be no legal grant by the alcalde. ”

“ It has vices before the law, and is defective in manner and form, using bad grammar, awkward construction, and a form and style diverse from the usual general practice, and contains unaccustomed clauses, without any reason therefor. ”