A demurrer admits facts well pleaded, but does not admit that
the construction of a written instrument set forth in the bill is
the true one or that its legal effect is contrary to that which its
language imports.
Questions affecting the validity of the Maxwell land grant as to
the authority of the Mexican government to make it are no longer
open, and a party claiming the same land under a prior grant from
the Mexican government must, to succeed in his claim, recover on
the strength of his own title.
An
empresario grant of land in Mexico operated to
designate a tract of country within which the
empresarios
might establish a colony or colonies, but no title to any land
passed to them until such colony was established.
United
States v. Arredondo, 6 Pet. 691, and
Gonzales
v. Ross, 120 U. S. 605,
distinguished from this case.
In equity. Decree dismissing the bill. Complainant appealed. The
case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is a suit in equity, brought by the Interstate Land
Company, a Colorado corporation, against the Maxwell Land Grant
Company, a corporation organized under the laws of the Kingdom of
the Netherlands and doing business in Colorado pursuant to the laws
of that state, to establish its title to a large tract of land in
Las Animas County, Colorado, for which the defendant has a United
States patent and to restrain the defendant from prosecuting
certain suits in ejectment against
Page 139 U. S. 570
various parties who are tenants of the plaintiff. A demurrer to
the original bill was sustained by the court below presided over by
MR. JUSTICE BREWER, then circuit judge, his opinion being reported
in 41 F. 275. The plaintiff then amended its bill in some
particulars, and the defendant again demurred. The demurrer was
sustained, and the plaintiff declining to further amend, the bill
was dismissed. From that decree an appeal was prosecuted to this
Court.
The case, as made by the pleadings on the demurrer, is as
follows: the lands in dispute are part of the tract embraced in the
patent to Charles Beaubien and Guadalupe Miranda dated May 19,
1879, for what is known as the "Maxwell Land Grant" in New Mexico
and Colorado, the validity of which was assailed by the United
States in the
Maxwell Land Grant Case, 121 U.
S. 325, and same case on petition for rehearing,
122 U. S. 122 U.S.
365. In that case it was held, among other things, after elaborate
argument of counsel and upon a most thorough and careful
examination by the Court of all the points involved, that the grant
by the Republic of Mexico, in 1841, to Beaubien and Miranda, as
confirmed by the Act of Congress of June 21, 1860, the title of
which had passed to the Maxwell Land Grant Company (the defendant
in this case) by various mesne conveyances, was a valid grant, and
that the survey and the patent issued upon it, as well as the
original grant, were entirely free from any fraud on the part of
the grantees or those claiming under them. The decision of the
Court in that case is not now assailed, but the contention is
substantially that the confirmation and patenting of the grant to
Beaubien and Miranda operated merely as a quitclaim of the United
States to whatever rights of property the government acquired from
Mexico by the Treaty of Guadalupe Hidalgo, and did not in any
manner affect claims to the same land derived from the Republic of
Mexico, which antedated the original grant to Beaubien and Miranda.
The claim of the plaintiff here rests upon an alleged empresario
grant to John Charles Beales and Jose Manuel Royuela, in 1832, by
the government of Coahuila and Texas, then two Mexican states under
one provincial administration. Whatever
Page 139 U. S. 571
rights to the lands in dispute were acquired by the original
empresarios or colonizing contractors have passed to the
plaintiff under various mesne conveyances. The petition of the
empresarios and the acceptance of their proposition by the
Mexican authorities, which together constitute the basis of
plaintiff's claim, are as follows:
"Petition and grants to Jose Manuel Royuela and John Charles
Beales for the years one thousand eight hundred and thirty-two and
thirty-three."
"To his Excellency the Governor of the State of Coahuila and
Texas."
"Sir: The citizen Jose Manuel Royuela, a native of Saltillo and
there married, and John Charles Beales, a native of England,
settled in Mexico, and there married to a Mexican subject, having
children, with all due respect represent to your Excellency that,
being very desirous of augmenting the population, wealth, and power
of the Mexican nation and at the same time of affording to a
certain number of virtuous and industrious families the means of
acquiring an honorable subsistence by cultivating a tract of land
in the ancient province of Texas, and being, moreover, acquainted
in full with the law of colonization passed by the honorable
legislature of this state on the twenty-fourth of March, one
thousand eight hundred and twenty-five, by which
'
empresarios' or colonizing contractors are allowed to
undertake to colonize under the conditions and stipulations by said
law prescribed, and being anxious to from an establishment that may
be useful to a new colony and at the same time beneficial to the
state on account of the advantages to accrue thereout, we pray your
Excellency to accept us as such '
empresarios' or
colonizing contractors, and to permit us to introduce into this
state, within the time that may be stipulated, two hundred Catholic
families of moral and industrious habits, and for the object your
Excellency will be pleased to grant us the tract of land included
within the following limits,
viz.: beginning
Page 139 U. S. 572
at a landmark set up on a spot whereat the thirty-second degree
of north latitude is crossed by the meridian of the hundred and
second degree of longitude west from London, said spot being at the
southwest corner of the grant petitioned for by Col. Reuben Ross;
from thence proceeding west along the parallel of the thirty-second
degree of latitude as far as the eastern boundary of New Mexico;
from thence running north on the boundary line between the
provinces of Coahuila and Texas and New Mexico as far as twenty
leagues of the River Arkansas; from thence east to the meridian of
the hundred and second degree of longitude, which is the western
boundary of the grant petitioned for by said Col. Reuben Ross, and
from thence proceeding south as far as the place of beginning. Your
petitioners, as '
empresarios,' pray for this grant on the
same conditions that it was formerly given to the late Stephen
Julian Wilson, whose term of six years is about to expire, on the
twenty-sixth of May in this year, without the conditions of the
grant having been fulfilled in consequence of the grantee. Besides
the conditions which are required by the colonization law of the
state, the
empresarios and their settlers agree to observe
the Constitution of the Mexican Nation and the private constitution
of this state, as well as the general and local laws that have been
or shall be hereafter promulgated. They further bind themselves to
comply with the conditions on which this petition is granted, and
to take up arms in defense of the rights of the nation against the
savage Indians or any other enemies that may attack the country, or
in any manner to alter its form of government or to disturb the
public tranquility; and, finally, to prevent the inhabitants of the
United States of North America from trading with the said Indians
and providing them with arms and ammunition in exchange for horses
and mules."
Wherefore we pray your Excellency to be pleased to grant this
respectful petition, which we shall consider as a favor conferred
on us.
Dated at Saltillo, the thirteenth of March, one thousand eight
hundred and thirty-two.
"JOSE MANUEL ROYUELA"
"JOHN CHARLES BEALES"
Page 139 U. S. 573
"
Conditions of the Grant"
"Terms on which the supreme government of the state accepts the
proposal of the citizens Jose Manuel Royuela and John Charles
Beales for colonizing certain land with two hundred foreign
families, such as are not excepted by the law of the sixth of
April, one thousand eight hundred and thirty:"
"ARTICLE 1. The government accepts the proposal made in the
foregoing petition as far as it is conformable with the law of
colonization passed by the honorable congress of the state on the
twenty-fourth of March, one thousand eight hundred and twenty-five,
and consequently assigns to the petitioners the tract of land
included within the following limits, that they may establish
thereon the proposed colony: it shall begin at a landmark which
shall be set up on the spot where the parallel of the thirty-second
degree of north latitude crosses the meridian of the hundred and
second degree of longitude west from London, said spot being at the
southwest corner of the grant petitioned for by Col. Reuben Ross.
From thence it shall proceed along the parallel of the
thirty-second degree of latitude as far as the eastern limit of New
Mexico. From thence it shall ascend north on the boundary line
between the provinces of Coahuila and Texas and New Mexico as far
as twenty leagues of the River Arkansas. From thence it shall run
east to the meridian of the hundred and second degree of longitude,
which is the western boundary of the grant petitioned for by the
said Col. Reuben Ross, and from thence it shall proceed south as
far as the place of beginning."
"ART. 2. Though the boundaries of the tract set forth in the
preceding clause are those assigned to Stephen Julian Wilson in a
grant passed by this government on the twenty-seventh of May, one
thousand eight hundred and twenty-six, yet this circumstance has
not been considered an impediment to the entering into the present
contract, inasmuch as the time allotted to the said Wilson for the
completion of said enterprise will (expire) in the month of May of
this present year without his having to this day performed the
Page 139 U. S. 574
same or any part whatsoever; but if, however, in the short time
that has to elapse, any number of the families of that
empresario should present themselves, then in that case
the present grant shall, with due respect to the part or parts
performed by the first grantee thereof, be null and void to all
intents and purposes."
"ART. 3. In consideration of the grant hereinbefore specified
the
empresarios or contracting parties agree to introduce
and settle, on their own account, two hundred foreign families,
conforming themselves as well to the general law of the republic as
to the laws of the state in this behalf provided."
"ART. 4. All lands whatsoever held under legal titles that may
be included within the limits designated in article first shall be
respected by the colonists who shall hold under this contract, and
it shall be obligatory on the part of the
empresarios to
see the observance of this clause."
"ART. 5. The state retains to itself the right of property over
all the surplus lands which shall remain of this grant after laying
off those which belong to the
empresarios and their
settlers according to the laws in that behalf provided."
"ART. 6. In conformity with article 8 of the law on colonization
hereinbefore referred to, the
empresarios are bound to
introduce the stipulated number of two hundred families within the
term of six years, which shall be computed from the date hereof,
under the penalty of being debarred from all the privileges and
advantages afforded by the said law."
"ART. 7. It shall be obligatory on the
empresarios not
to introduce or suffer to remain in the colony men guilty of
atrocious crimes or of bad conduct; as also to endeavor that no
person whatsoever shall carry on traffic in arms and ammunition
with the barbarous tribes of Indians in exchange for horses and
mules."
"ART. 8. Whenever there shall be a sufficient number of men, the
national militia shall be duly organized and regulated according to
the laws of the state in that respect provided."
"ART. 9. The colony shall be regulated by the person whom the
government shall appoint to allot the respective settlements
Page 139 U. S. 575
or possessions, and he shall duly observe the laws on
colonization in force throughout the state, the general law of the
eighteenth of August, one thousand eight hundred and twenty-four,
and likewise the instructions to commissioners which have been
appointed by the honorable Congress, taking care to afford
protection within the limits of the colony to such persons only as
shall be approved of by the said
empresarios."
"ART. 10. All official communications, instruments, and other
public documents emanating from the colony, must be written in the
Spanish language."
"ART. 11. In reference to all matters not provide for or
expressed in these articles, the
empresarios or the new
settlers holding under them shall abide and the laws of this state.
And his Excellency the governor of the state, as also the citizens
Jose Manuel Royuela and John Charles Beales, having agreed in the
articles of this contract to grant and bound respectively to the
observance and performance thereof, afterwards signed the same
before me, the undersigned secretary of this government. And having
been directed to give the
empresarios this certified copy
of all the documents relating to the grant, that they may serve
them as security and as formal title (or as a title in form)
thereto, the original will, according to law, remain filed and
recorded in the secretary's office under my charge."
"Dated City of Leona Vicario, the fourteenth day of March, one
thousand eight hundred and thirty-two."
"JOSE MARIA DE LETONA"
"JOHN CHARLES BEALES"
"JOSE MANUEL ROYUELA"
"SANTIAGO DEL VALLE,
Secretary"
"The foregoing is copied from the original documents filed and
recorded in the secretary's office under my charge, whence it was
ordered taken by his Excellency the governor."
"City of Leona Vicario, the fourteenth of March, one thousand
eight hundred and thirty-two."
"SANTIAGO DEL VELLA,
Secretary"
Page 139 U. S. 576
The bill in this case was filed January 20, 1888. After some
introductory matters, it set out with much particularity the
various proceedings had in the matter of the grant to Beaubien and
Miranda, both under the Mexican law and subsequent to the Treaty of
Guadalupe Hidalgo, by which the territory was acquired by the
United States, up to and including the acquisition of the grant by
the defendant, substantially as they are detailed in the
Maxwell Land Grant Case, 121 U. S. 325, and
averred that that grant, being an alleged
empresario
grant, was absolutely void because at the date it was made there
was no law of Mexico in existence under which there was any
authority for it. It then set out with equal precision the various
proceedings had in relation to the alleged
empresario
grant to Beales and Royuela, and the various mesne conveyances by
which the plaintiff became possessed of it. The amended bill
averred that the Mexican government, by sundry and divers official
acts, which are set forth and described, recognized that Beales and
Royuela, by virtue of their
empresario contract, had the
title in fee to the lands in question. It then averred that the
plaintiff and its tenants were in the exclusive possession of the
premises in dispute and that the defendant had never been in
possession of them. One of the official acts of the Mexican
government referred to was said to be the following order made by
the President of the Republic of Mexico, dated Mexico, July 12,
1836, addressed to Beales:
"His Excellency the President
ad interim has been
advised of the judicious and circumspect course which you may have
taken in employing your influence to allay the disturbances which
have broken out and to sustain order and the obedience due to the
general government, and in correcting public opinion through the
medium of the newspapers in the United States of the north, and his
Excellency, being satisfied with this and the like proceedings on
your part, which are such as belong to a good citizen, has directed
me to return you thanks as an acknowledgment for the same, and to
require that you will continue in the most effectual manner in your
power your good offices in defense of the just cause of the nation,
and to maintain and impress a
Page 139 U. S. 577
spirit of order and peace upon the inhabitants of the colonial
district placed under your charge, and also upon all other persons
who may be interested in the benefits which will ensue from a like
course of conduct. In consideration of which services afforded to
this nation in its present struggle, an order has been issued by
this department at the instance of the general in chief to the army
of operation to afford protection to the colonial establishments of
yourself and Senor Edgerton, who has concurred in the course of
proceedings which you have taken, and his Excellency cooperates in
the recommendation in his favor as well as yours, in the manner
indicated by this communication."
The amended bill then continued as follows:
"And the plaintiff further avers that the said Mexican
government, in pursuance of said order, did at all times maintain
and protect the possession and title of the said Royuela and Beales
to the said lands, and continued so to do until the successful
revolution of Texas (one of the grantors) rendered it utterly
impossible to afford further protection. And the plaintiff further
avers and alleges that in addition to having taken actual
possession of the lands embraced in said grant and having
sectionized a large part thereof, the said Beales, in further
performance of the condition of said grant, had introduced a
portion of the families, as required by its terms, and would have
introduced all the families of the class described therein, and
would have performed all the conditions of the said grant had he
not been wholly prevented from such performance by the said
revolution of Texas, which resulted in its independence of Mexican
authority."
Attached to the bill as exhibits and made part of it are copies
of the records of the proceedings in the matter of both of the
claims in question, and in the consideration of the questions
involved herein it will be necessary to refer to some of them
somewhat more in detail.
The proposition of counsel for appellant that the effect of the
demurrer is an admission
pro hac vice that the Interstate
Land Company has the title in fee to the lands in dispute needs
only the single reply that a demurrer admits facts well
Page 139 U. S. 578
pleaded, but does not admit that the construction of a written
instrument set forth in the bill is the true one, or that its legal
effect is contrary to that which its language imports. The very
object of a demurrer in such case is to submit the question
presented by the instrument as a matter of law for the
determination of the court. Story's Eq.Pl. (9th ed.) ยง 452, note
a;
Dillon v.
Barnard, 21 Wall. 430,
88 U. S. 437;
United States v. Ames, 99 U. S. 35,
99 U. S. 45.
Passing now to the merits of the controversy, the first question
to be disposed of relates to the patented grant of the defendant.
We have already stated that in the
Maxwell Land Grant Case
it was held that the grant to Beaubien and Miranda, which is the
foundation of the defendant's title, was a valid grant and that the
decision of the Court in that case is not directly assailed. The
effect of the decision in that case, however, is evidently
misunderstood by the appellant, for one of the main points urged on
this appeal is that the grant was void
ab initio for the
reason that, being an alleged
empresario grant, authority
for it must be found in the colonization laws of Mexico, and those
laws have been repealed by a law of the republic passed in 1837,
four years prior to the date of that grant. It becomes necessary,
therefore, to state with some degree of particularity what was
actually decided in that case.
A reference to that decision will show that the validity of the
grant was one of the principal questions there considered. As
stated in the opinion, the first question presented for
consideration was:
"Do the colonization laws of Mexico in force at the time the
grant was made to Beaubien and Miranda -- namely the decree of the
Mexican Congress of August 18, 1824, and the general rules and
regulations for the colonization of the territories of the Republic
of Mexico of November 21, 1828 -- render this grant void
notwithstanding its confirmation by the Congress of the United
States?"
121 U.S.
121 U. S. 360.
The Court then discussed that question very fully, and came to the
conclusion that the grant certainly partook very largely of the
nature of an
empresario grant, and was evidently so
considered by Congress when it was confirmed. Among other
Page 139 U. S. 579
things, it was found that juridical possession had been given to
the original grantees by the alcalde, one Cornelio Vigil, who
accompanied the delivery of possession with a
diseno or
plat showing the boundaries of the tract granted. But the decision
was not rested solely upon the fact that the grant was generally
understood to be an
empresario grant, but upon the
proposition that the action of Congress in confirming it as made to
Beaubien and Miranda, and as reported for confirmation by the
Surveyor General of New Mexico, without any qualification of
limitation as to its extent, was conclusive upon the Court. In this
connection, the Court said (pp.
121 U. S.
365-366):
"But whether as a matter of fact this was a grant, not limited
in quantity, by the Mexican decree of 1824 or whether it was a
grant which in strict law would have been held by the Mexican
government, if it had continued in the ownership of the property,
to have been subject to that limitation it is not necessary to
decide at this time. By the Treaty of Guadalupe Hidalgo, under
which the United States acquired the right of property in all the
public lands of that portion of New Mexico which was ceded to this
country, it became its right, it had the authority, and it engaged
itself by that treaty to confirm valid Mexican grants. If therefore
the great surplus which it is claimed was conveyed by its patent to
Beaubien and Miranda was the property of the United States, and
Congress, acting in its sovereign capacity upon the question of the
validity of the grant, chose to treat it as valid for the
boundaries given to it by the Mexican governor, it is not for the
judicial department of this government to controvert their power to
do so,"
citing
Tameling v. United States Freehold &c. Co.,
93 U. S. 644.
Afterwards it was said:
"At the time that Congress passed upon the grant to Beaubien and
Miranda, whatever interest there was in the land claimed which was
not legally or equitably their property was the property of the
United States, and Congress having the power to dispose of that
property, and having, as we understand it, confirmed this grant,
and thereby made such disposition of it, it is not easily to be
perceived how the courts of the United States can set aside
this
Page 139 U. S. 580
action of Congress. Certainly the power of the courts can go no
further than to make a construction of what Congress intended to do
by the act which we have already considered, confirming this grant
and others."
121 U.S.
121 U. S.
382.
We conclude, therefore, that questions affecting the validity of
that grant -- that is, as to the authority of the Mexican
government to make it -- are no longer open. The action of Congress
in confirming it, and the subsequent proceedings in the Land
Department, together with the proceedings in the courts to set
aside the patent, have certainly settled those questions forever.
True, those proceedings do not estop a party claiming the same land
under a prior grant from the Mexican government. But to succeed in
his claim he must recover on the strength of his own title. In
other words, he must establish the validity of his own grant in
order to defeat a subsequent grant which has been adjudged valid in
proper legal proceedings. The confirmation and patenting of the
grant to Beaubien and Miranda operated to divest the United States
of all their rights to the land embraced in the grant which this
country acquired from Mexico by the Treaty of Guadalupe Hidalgo.
And the only way that that grant can be defeated now is to show
that the lands embraced in it had been previously granted by the
Mexican government to some other person.
This leads naturally to the consideration of the nature and
extent of the grant to Royuela and Beales in 1832, which is the
foundation of the appellant's title. On the one hand, it is
contended that the contract of the States of Coahuila and Texas
with the
empresarios operated as a grant of the fee to the
contractors of all the land described in the instruments of title,
subject to be defeated only by the failure of the
empresarios to perform the conditions subsequent of the
grant; that the performance of those conditions became impossible
by reason of the fact that one of the grantor states engaged in
open war with the Republic of Mexico, and achieved its independence
prior to the time within which such performance was required, and
that the grant was thereby relieved of those conditions and became
absolute. The tract thus claimed
Page 139 U. S. 581
embraces about 60,000,000 acres. On the part of the defendant it
is insisted that the conditions of the grant were precedent, and
that therefore no title passed to the contractors until those
conditions were performed, and that in no event under the contract
could the
empresarios have acquired a title to the whole
body of land described, even if all the conditions had been
performed. In other words, it is said that the grant in question
operated simply to designate a large tract of country within which
the
empresarios might establish a colony or colonies; that
no title to any land passed to them until such colony was
established; that if a colony was established, the colonists were
to be supplied with land taken from this large body of land; that
the amount of lands to which the
empresarios would be
entitled upon the establishment of a colony was to be determined by
the number of families introduced by them, and must also be taken
from this large body of land, and that, of necessity, those premium
lands of the contractors, as they were called, must be of a less
quantity than the grant as designated by its outboundaries.
The circuit court adopted substantially the views of the
defendant. In this we think the court was correct. In fact, the
opinion of the learned judge who presided on the hearing of the
case was a comprehensive and exhaustive review of the case, as
presented by the original bill and demurrer, and leaves little to
be said on the questions then presented. A few observations, we
think, will demonstrate the correctness of that conclusion. In
construing the instruments of title, reference must be had to all
parts of them. The mere fact that the word "grant" is used many
times in them, sometimes apparently in its general and unrestricted
sense of a conveyance of the title, ought not to be permitted to
outweigh other parts of the instruments which clearly negative that
idea. Referring to the first article of the "conditions of the
grant," its language is found to be as follows:
"The government accepts the proposal made in the foregoing
petition as far as it is conformable with the laws of colonization
passed by the honorable congress of the state on the twenty-fourth
of March, one thousand eight hundred and twenty-five, and
consequently
Page 139 U. S. 582
assigns to the petitioners the tract of land included within the
following limits, that they may establish thereon the proposed
colony,"
etc. As was well remarked by Judge Brewer, this article "may be
considered as most nearly like the granting clause in an ordinary
deed." Now does it in any sense purport to convey the fee in the
lands specified to the
empresarios? We think not. The
government "assigns" to the contractors the tract of land
described. But did it do so absolutely? Certainly not, but for a
particular purpose,
viz., the establishment thereon of a
colony. The establishment of a colony was the consideration for the
assignment. And if, as is contended, the
empresarios
thereby became possessed of the fee to that vast region of country,
where were the colonists provided for? Where were they to get
lands? An answer to those questions shows at once the fallacy of
the appellant's position. Again, that idea is wholly inconsistent
with article 5, which provides that
"The state retains to itself the right of property over all the
surplus lands which shall remain of this grant, after laying off
those which belong to the
empresarios and their settlers,
according to the laws in that behalf provided."
How could there be any surplus lands if the
empresarios
got all of them? That section, if it means anything at all, clearly
negatives the appellant's contention and is in complete harmony
with the law of 1825, to which we shall presently refer.
But furthermore, the proposition of the petitioners was
accepted, and the assignment was made "as far as it is [was]
conformable with the laws of colonization passed by the honorable
congress of the state on the 24th of March, 1825." To ascertain
with precision the meaning of the contract, its terms must be read
in the light of that act. It is found in Rockwell's Spanish and
Mexican Law, p. 641, and consists of 48 articles. The articles
bearing particularly upon the question under consideration are as
follows:
"ART. 8. The projects for new settlements, in which one or more
persons offer to bring at their expense one hundred or more
families, shall be presented to the government, and if found
conformable with this law they will be admitted; and
Page 139 U. S. 583
the government will immediately designate to the contractors the
land where they are to establish themselves, and the term of six
years, within which they must present the number of families they
contracted for, under the penalty of losing the rights and
privileges offered in their favor in proportion to the number of
families which they fail to introduce, and the contract totally
annulled if they do not bring at least one hundred families."
"ART. 9. Contracts made by the contractors or undertakers,
empresarios, with families brought at their expense, are
guaranteed by this law, so far as they are conformable with its
provisions."
"ART. 10. In the distribution of lands, a preference shall be
given to the military entitled to them by the diplomas issued by
the supreme executive power, and the Mexican citizens who are not
military, among whom there shall be no other distinction than that
founded on their individual merit or services performed for the
country, or, in equal circumstances, a residence in the place where
the land may be situated. The quantity of land which may be granted
is designated in the following articles."
"ART. 11. A square of land, which on one side has one league or
five thousand varas, or, what is the same thing, a superficie of
twenty-five million varas, shall be called a 'sitio,' and this
shall be the unity for counting one, two, or more sitios, and also
the unity for counting one, two, or more labors shall be one
million square varas, or one thousand on each side, which shall
compose a labor. The vara for this measurement shall be three
geometrical feet."
"ART. 12. Taking the above unity as a basis, and observing the
distinction which must be made between grazing land, or that which
is proper for raising stock, and farming land, without the facility
of irrigation, this law grants to the contractor or contractors for
the establishment of a new settlement, for each hundred families
which he may introduce and establish in the state, five sitios of
grazing land, and five labors at least, the one-half of which shall
be without the facility of irrigation; but they can only receive
this premium
Page 139 U. S. 584
for eight hundred families, although a greater number should be
introduced, and no fraction whatever less than one hundred shall
entitle them to any premium, not even proportionally."
"ART. 13. Should any contractor or contractors, in virtue of the
number of families which he may have introduced, acquire in
conformity with the last article more than eleven square leagues of
land, it shall nevertheless be granted, but subject to the
condition of alienating the excess within twelve years, and if it
is not done, the respective political authority shall do it by
selling it at public sale, delivering the proceeds to the owners
after deducting the costs of sale."
"ART. 14. To each family comprehended in a contract whose sole
occupation is cultivation of land, one labor shall be given; should
he also be a stock-raiser, grazing land shall be added to complete
a sitio, and should his only occupation be raising of stock, he
shall only receive a superficie of grazing land equal to
twenty-four million square varas."
The following articles of the "instructions to the commissioners
appointed by the legislature of the state" for the partition of the
lands among the colonists, under the Act of March 24, 1825, found
in Rockwell's Spanish and Mexican Law, p. 649, relate to the
question at issue:
"ART. 4. He shall issue, in the name of the state, the titles
for land in conformity with the law, and put the new colonists in
possession of their lands, with all legal formalities, and the
previous citation of adjoining proprietors, should there be
any."
"ART. 6. He shall take care that no vacant lands be left between
possessions, and, in order that the lines of each one may be
clearly designated, he shall compel the colonists, within the term
of one year, to mark their lines, and to establish fixed and
permanent corners."
"ART. 7. He shall appoint, under his own responsibility, the
surveyor, who must survey the land scientifically, requiring him
previously to take an oath truly and faithfully to discharge the
duties of his office."
"ART. 8. He shall form a manuscript book of paper of the
Page 139 U. S. 585
third stamp, in which shall be written the titles of the lands
distributed to the colonists, specifying the names, the boundaries,
and other requisites and legal circumstances, and a certified copy
of each title shall be taken from said book on paper of the second
stamp, which shall be delivered to the interested person as his
title."
"ART. 10. This book shall be preserved in the archives of the
new colony, and an exact form of it shall be transmitted to the
government, specifying the number of colonists, with their names,
and the quantity of land granted to each one, distinguishing that
which is farming land, with or without the facilities of
irrigation, and that which is granted as grazing land."
The act of 1825, and the instructions issued to carry it into
effect, when read in connection with the terms of the "conditions
of the grant," abundantly show, we think, that the extravagant
claim of the appellant is utterly without foundation. In this
connection we can do no better than quote the words of MR. JUSTICE
BREWER, then circuit judge. After quoting from the law of 1825 and
the instructions just mentioned, he said:
"Article eight of the law quoted above prescribed what the
government will do when the petition of an
empresario for
colonization is presented. If found conformable with this law, the
government will immediately 'designate' to the contractors land
whereon to establish themselves. This, of course, does not mean
that the government will grant them the land, but simply that it
will select and designate the place where a colony may be settled.
So that when we find in the first article of the grant that the
government assigns a given tract to the petitioners for the
establishment of a colony, the assignment is made by virtue of this
article eight of the law, and means simply the selection of a place
for the colony. Passing on to article 12, we find what the
government will give to the
empresario specifically
declared, to-wit: for each hundred families, five sitios of grazing
land and five labors at least the one-half of which shall be
without the facility of irrigation. This article makes plain the
meaning of article three of the grant, and shows that that means
simply that, in consideration of
Page 139 U. S. 586
the setting apart of this large tract of land, the petitioners
agree to introduce and settle on that land two hundred foreign
families. Articles 12 and 13 together provide what shall be given
to the
empresario who introduces eight hundred families,
and receives more than eleven square leagues of land. This last
article shows a clear intent that no party should obtain title to
more than eleven square leagues, no matter what services in
colonization he may render to the state. Articles 14, 15, and 16
provide what the individual settlers are to receive, and sections
from 12 to 16, inclusive, explain fully the meaning of article five
of the grant, which declares that the state retains title to all
the surplus land within the grant after laying off that which
belongs to the
empresarios and their settlers. Thus the
law makes plain the meaning of the contract, and shows that it was
not a conveyance passing title. In other words, the grant must be
presumed to have been made in pursuance of the law, and to be
limited by the terms of the law. Indeed, it is doubtful whether a
grant made in excess of the authority given by the law would be
valid. This grant, in terms, refers to the law under which it was
made and shows that it was made in pursuance of the authority
conferred by that law, which provides that the government will
select a tract of land upon which the
empresario may
establish a colony, and that if he does, he will be paid in land at
a fixed rate, and that the colonists that he introduces will also
receive definite amounts of land. This grant, made thus in
pursuance of this law, means just what the law says it may mean,
and was simply a designation of a tract within which the
petitioners might establish a colony. It of itself passed title to
no portion of the land to them."
41 F. 281, 282.
All this is in exact harmony with what this Court said in
Spencer v. Lapsley, 20 How. 264,
61 U. S.
270-271, speaking of the colonization law now under
consideration:
"The contract of an
empresario obliged him to introduce
colonists into a specific district. The colonist having a family
was entitled to one league of land of a particular quality, for
which he paid a small sum to the government. The
empresario was paid five leagues and five labors for
everyone hundred families introduced.
Page 139 U. S. 587
Of course, the excess of land within the limits of the colony,
after supplying the colonists and the empresario, remained to the
government. The commissioner of distribution was an officer of the
government, who superintended the fulfillment of the contract by
the empresario. He ascertained the character of the colonists,
allotted to them and the
empresario their shares of land,
and for that purpose appointed surveyors, received returns of
survey, and executed the final titles. Usually this officer was not
appointed until colonists were introduced and a community was to be
formed. The sale of the land within the limits of the colony might
disturb the interest of the
empresario or of the
colonists, and hence reference of the contracts of sale to the
commissioner for execution. If there were no colonists and the
empresario opposed no objection, there was no reason why
sales should not be made, nor was there any occasion for the
services of a commissioner."
See also Glenn v. United
States, 13 How. 250.
With respect to the averments of the bill that the Mexican
government placed Beales in possession of the land and recognized
in divers and sundry ways that the fee in the land passed to him
and Royuela very little need be said. The official act of the
Mexican government relied upon on is set out in full, as before
stated, and a reference to it shows that it does not necessarily
refer to this grant. In fact, the inference is, if its very terms
do not show it, that it does not. Its language is that an order had
been issued to the army of operation "to afford protection to the
colonial establishments of yourself and Senor Edgerton." In view of
the historical fact, noticed in
Gonzales v. Ross,
120 U. S. 605,
that Beales was interested in other
empresario contracts,
the above averments are, to say the least, very vague and
uncertain. And the averment that Beales was put in possession of
the tract is inconsistent with the Mexican colonization law and the
empresario contract relied upon. He could not have been
put in possession of the whole region of country described, under
the law of 1825, and he could not have been put in possession of
any specific portion of it without first establishing a colony
Page 139 U. S. 588
of at least one hundred families. As that was confessedly not
done by him, no rights of property were acquired.
With respect to the averment that, by reason of the Texas
revolution, the
empresarios were prevented from carrying
out their contract, it is sufficient to say that if such had been
the case, the contractors might have perfected their claim under
the laws of Texas, as passed soon after that revolution.
Houston v. Robertson, 2 Tex. 1. As there is no averment of
any attempt to so perfect the claim, it is difficult to see what
rights can be asserted under it at this late day.
Moreover, as the claim had never been perfected prior to the
Treaty of Guadalupe Hidalgo, it was not protected by virtue of that
treaty. It needs no citation of authorities to support the general
proposition of international law that private rights of property in
a ceded territory are nowise affected by a treaty cession. But that
is not this case. There could be no private rights of property, no
vested interest, until the conditions of the contract had been
complied with. This claim was one of the class which was expressly
refused to be recognized by the treaty. Article 10 of the original
draft of the treaty, as agreed upon between the commissioners
representing this government and Mexico, was as follows:
"ART. 10. All grants of land made by the Mexican government or
by the competent authorities in territories previously appertaining
to Mexico and remaining for the future within the limits of the
United States shall be respected as valid to the same extent that
the same grants would be valid if the said territories had remained
within the limits of Mexico. But the grantees of land in Texas, put
in possession thereof, who, by reason of the circumstances of the
country since the beginning of the troubles between Texas and the
Mexican government, may have been prevented from fulfilling all the
conditions of their grants shall be under the obligation to fulfill
the said conditions within the periods limited within the same
respectively, such periods to be now counted from the date of the
exchange of ratifications of this treaty, in default of which the
said grants shall not be obligatory upon the State of Texas in
virtue of the stipulations contained in this article. The
foregoing
Page 139 U. S. 589
stipulation in regard to grantees of land in Texas is extended
to all grantees of land in the territories aforesaid elsewhere than
in Texas, put in possession under such grants, and in default of
the fulfillment of the conditions of any such grant within the new
period, which, as above stipulated, begins with the day of the
exchange of ratifications of this treaty, the same shall be null
and void."
Message of the President of the United States, transmitting
papers relative to the Treaty of Guadalupe Hidalgo, February 18,
1849, Ex.Doc. 50, H.R. 30th Cong., 2d Sess. p. 17.
That article, however, was stricken out by the Senate of the
United States, and in the message of President Polk the reasons for
its rejection are stated in the following language,
ib.,
32:
"The objection to the tenth article of the original treaty was
not that it protected legitimate titles, which our laws would have
equally protected without it, but that it most unjustly attempted
to resuscitate grants which had become mere nullities, by allowing
the grantees the same period after the exchange of the
ratifications of the treaty, to which they had been originally
entitled after the date of their grants, for the purpose of
performing the conditions on which they had been made. In
submitting the treaty to the Senate, I had recommended the
rejection of this article. That portion of it in regard to lands in
Texas did not receive a single vote in the Senate. This information
was communicated by the letter of the Secretary of State to the
Minister of Foreign Affairs of Mexico, and was in possession of the
Mexican government during the whole period the treaty was before
the Mexican Congress, and the article itself was reprobated in that
letter in the strongest terms. Besides, our commissioners to Mexico
had been instructed"
"that neither the President nor the Senate of the United States
can ever consent to ratify any treaty containing the 10th article
of the Treaty of Guadalupe Hidalgo in favor of grantees of land in
Texas or elsewhere."
"And again,"
"should the Mexican government persist in retaining this
article, then all prospect of immediate peace is ended, and of this
you may give them an absolute assurance."
"It is contended, however, that the case of
United States
v.
Page 139 U. S. 590
Arredondo, 6 Pet. 691, governs this case in favor of
the contention of the appellant. In that case, however, the grant
to Arredondo was of a specific tract of four square leagues, with
the condition that he should establish a colony thereon. This
condition was held to be a condition subsequent. It differs from
this case in that here there was no grant of any specific body of
land, but a mere designation of a large tract within which a colony
might be formed and established, after which the land to the
colonists was to be allotted, and the premium lands to the
empresarios measured off."
Neither does the case of
Gonzales v. Ross, 120 U.
S. 605, control this case. They are entirely dissimilar.
In that case, the grant was made under and by virtue of a law of
Coahuila and Texas passed in 1832, and a commissioner appointed
under that law put the grantee in possession of the tract at the
same time giving him the usual testimonio or deed. This Court held
that the grant was absolute in form and sufficient to pass the
title. The reasoning of the Court in that case, instead of
supporting the theory of the appellant, in reality is against it.
In support of the general theory of this case which we have
adopted,
See Fremont v. United
States, 17 How. 542;
United
States v. Amijo, 5 Wall. 444;
Miller v.
Dale, 92 U. S. 473;
United States v. McLaughlin, 127 U.
S. 428.
There are other questions presented, but the foregoing virtually
disposes of them. In no aspect of the case can the appellant
recover. There is no error in the decree of the court below, and it
is
Affirmed.