ERROR to the District Court of the United States for the Eastern District of Texas; the case being essentially thus: By the Mexican colonization law of August 18th, 1824, and the legislation of Coahuila and Texas authorized by it, the Governor of the State just mentioned had power to grant lands for colonization; but it was declared that the territory comprised within twenty leagues of the boundaries of a foreign nation, or within ten leagues of the sea-coast, could not be colonized without the previous approval of the supreme executive power.
In this state of the law, one Miguel Arceniga, a resident of Bexar, made his petition for concession of eleven leagues of land. The petition was dated March 31st, 1831, and the concession of the Governor, granting the quantity asked for, was made on the 6th of April of the same year, accompanied with a direction to the proper local officers to give possession of the land to the grantee, and to issue to him the proper title. Neither document designated the land. A petition to the alcalde, for survey, possession, and title, of the eleven leagues, in the vicinity of the 'Red River of the Nachitoches,' was followed by the appropriate action of the officer for that purpose, and on the 22d of September, 1835, by the issue to the grantee of a formal certificate of possession and title of the land thus situated. This was before the annexation of Texas to the United States, and the land thus granted laid within twenty leagues of what was then the northern boundary between Texas and the United States. Texas having become part of the Union, one Christy, claiming under the grantee, brought trespass to try title for these eleven leagues, now situated in Harrison County, Texas.
The court ruled that the grant being issued without the previous assent or approval of the supreme executive power of Mexico, was illegal and void, and excluded it from the jury. Thereupon, the jury found for the defendant. The alleged error in this ruling was the only question before this court.
Mr. T. Ewing, Jr., for the plaintiff in error:
The title, on its face, being valid and complete-its genuineness unquestioned-it comes within the principle declared by this court in Fuentes v. United States, [1] that 'the public acts of public officers, importing to be exercised by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given, or subsequently ratified;' and in Delassus v. United States, [2] that the concession, being regular in form and made by the proper officer, is prim a facie evidence that it was within the power of the officer to make it, and that he who alleges that an officer intrusted with an important duty has violated it, must show it.
The chief object of the colonization law, as is known, was to encourage the immigration of foreigners, and their establishment in colonies with liberal bounties of lands. It was decided in Arguello v. United States, [3] and affirmed in Cruz Cervantes v. The Same, [4] that this law did not restrict the distribution by the States to Mexican citizens of public lands within the littoral and the frontier leagues. As there is no other provision of the constitution or laws of Mexico requiring the assent of the national executive to the disposition of vacant lands in Coahuila and Texas, it was therefore settled by those cases that the State had the power, without the assent of the supreme executive, to make the grant in question.
Mr. Adams and Mr. Leech, contra:
The invalidity and nullity of the Mexican grants within the ten coast, and twenty border, leagues of Texas, unless the assent of the supreme executive of Mexico was affirmatively shown to such grants, have been repeatedly and firmly settled by the Supreme Court of Texas, in a series of cases. [5]
These decisions have, for years, been acquiesced in by the bar and the people, and constitute a rule of property for a very large portion of the State.
The plaintiff in this action undertook a course of litigation to overthrow these decisions; but they have been reiterated and affirmed both in the Supreme Court of Texas, [6] and in this court, in League v. Egery, [7] and Foote v. Egery, [8] until it is not possible to conceive a more fixed and settled course of decisions and rule of property than the nullity of grants of this character.
Reply: 1. All the matters necessary to a consideration of the question do not seem to have been presented to this court in League v. Egery, and Foote v. Egery, acquiescing in the Texas decisions, and were not considered in its opinion when pronounced.
The first of the Texas decisions was at the December Term, 1848-one year before plaintiff brought this suit. He was the purchaser of the land from the State of Coahuila and Texas, in 1835, and had received complete legal title. Neither Mexico, nor the State of Coahuila and Texas, nor the Republic, nor the State of Texas, ever questioned his title by proceeding for forfeiture, or by a conveyance to a third person, or otherwise. The custom of the states and territories of Mexico, while the national colonization law of 1824 was in force, to sell to Mexicans lands in the border leagues, without the assent of the national executive, which is referred to in the Arguello case, and shown in the Texas and California Reports, and in the colonization law of Tamaulipas [9]-undisputed as it was by Mexico-shows that the law was never interpreted by the national, state, or territorial authorities to impose the condition of national assent on such sales to Mexican citizens. This court, in the Arguello and Cervantes cases, in opinions from which there was no dissent, declared that this interpretation of the law by the national, state, and territorial authorities was right. It may, terefore, be assumed that such is the true interpretation of this law.
Hence, from 1835 to 1849, when this erroneous interpretation was first declared by any judicial tribunal, the plaintiff had a valid legal title by executed contract of purchase.
This court, in the Egery cases, takes the decisions of the Texas courts as a rule of property in that State. The court say, 'We do not inquire whether a more suitable rule might not have been adopted, nor whether the arguments which led to its adoption were forcible or just. We receive the decisions as having a binding force almost equivalent to positive law.' But we submit, that unless those Texas decisions have a binding force, more than equivalent to positive law, they cannot control this case. When the first of these erroneous decisions was made, Texas was a State of this Union, bound by the Constitution, and could not, even by a law, impair the validity of this contract, much less by a decision of its courts, or a series of decisions, which are only 'almost equivalent to positive law.' If, then, the plaintiff had a valid title before the earliest of these decisions, he has it still unimpaired by them. Decisions settling a rule of property cannot give or take away property, except in the very cases involved in them. They may, and of right ought to have, a persuasive influence on other courts deciding cases which originated in the past, but cannot control them any more than a statute law can control titles acquired in the past.
2. If the constitutional objection were removed, it seems to us not sound policy to give this effect to the Texas decisions. In 1855, nearly contemporaneous with the earliest of these decisions, this court, in the Arguello case, settled the construction of this part of the Mexican colonization law. That decision, affirmed in the Cervantes case, has stood for eleven years as an exposition of the settled law of such titles in all those states and territories which were acquired from Mexico.
It is, doubtless, still the received construction in those states and territories. Now, because the Texas courts refused to adopt that construction, and pertinaciously adhered to their own, will this court, by adopting the construction of the Texas courts, reverse its decision in the Arguello case, and destroy the titles resting on it? If the interpretation in the Arguello case is to be adhered to in deciding on titles in the states and territories acquired from Mexico, it cannot be abandoned in titles in Texas; for if a grant within the border leagues in California be not impaired by want of assent of the Mexican government, a like grant in Texas cannot be, without conceding to the Texas courts the power of establishing, by a train of decisions, a rule of property which destroys the obligation of contracts.
Mr. Justice FIELD delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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