Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 21
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AUSTIN; 1849. 41-42
McMullen v. Hodge.
but the court said that as the Governor by law had authority to make larger
grants, the mere recital of the order could not limit or prejudice the grant,
tlhe officer having sufficient power. As to the saw-mill, the building of it lnot
having been carried into the decree as a condition, it could not be held a condition
of the grant. How, then, can it be contended that in the case at [41i]
bar the mere reference by one of tile attorneys to the law of composition, if
such be the reference, can make this grant a title by composition? According
to the case of Rodmina, the recital of the law of composition in the decree itself
would not make it a title by composition, where the grant itself declares
it to be a title "by way of sale." The breadth of the title is to be measured
by tlhe granting words, and not by the recital of laws and things which do not
enter into the conditions of the grant. So where the petitionlel, reciting his
services, asked for a grant of five miles square of land to build a saw-mill on
and it was granlted(-the decree reciting the inducement-the building of the
mill, without making it a condition expressly, the court refused to imply oile.
(United States v. HIIuason, 16 Pet. R., 196.)
II. Such being the nature of the grant, for whose benefit was it made, and to
whom was it grated? Not to the church. Not to the friars of the order of
Gaudalulpe. After tlhe first application for the two leagues, which wAas not listened
to, they appear to lave withdrawn from the contest. At tile public sale
the Indians of tile mission of San Jose appear as ordinary purchasers, and bid
the lighlest price for tle lands, and they are struck down to them, and subsequelitly
confirmed to the "native Indians" of that mission " by way of sale."
'They are purchased by onerous title with the private property of tile Indians.
'These lands cannot be lield the property of tle church or mission without
holding that the Indians and the church were one and the same tiling. Now,
these lands formed no part of the foundation of the mission, wllichl hel lno
lands for pasture in right of property, but only a general right to use tle vacant
lands-the mission having nlo particular charter, but being organ-ized
under general laws. The grant shows that it was the intention of the audiencia
to confer these lands by sale upon tlhe Indians in private property,
separate and apart froin the friars and the church. The statement of the
officer of the church in Mexico shows that the mission, as an establishment, had,
withdrawn all pretension, and that all difficulty [42] was removed by the Indians,
as a community, becoming the purchasers.
'Ihat the laws of Spain gave a right to Indians to purchase and hold property,
both as individuals aI(l communities, cannot, at this day, be a matter of
doubt. (2 White 34; Id., 51, 54.) Such a right is repeatedly and fully recognized
by the laws of the Indies, which not only gave the Indians the right to
purchase and hold, but gave them a preference over others. They were tile
favored subjects of the law. And even if we did not find in the laws of Spain
this express recognition of the right we should be bound, in absence of contrary
proof, to presume it. It is a familiar principle that tile courts will indulge
all presumption in favor of the validity of a grant made by an officer
having the power; and lie who alleges tile invalidity of a grant takes upon
himself tle burden of proof, and must show it. (Phillips v. Robertson, 2 Teln.
R., 420; Patterson v. Jenks, 2 Pet. R., 227.)
But if the Indians, by the general laws of Spain, had not a right to purchase
and holl lands, either as individuals or as a community, tile decree passing
the title to tie Indians of tile mission of San Jose was sufficiellt for that purpose,
whether viewed as a legislative or judicial act. It was within the power
of the audieccia to confer this capacity on the Indians. Such Twould be tile
common-law as well as the civil-law rule of construction. A legislative grant
to an :alienl lnd his heirs has been lleld to authorize him to take and transmit.
(Jacksom v. Gootell, 20 Johns. R., 707.) So with regard to a granlt to an Indian.
(lb.) So a patent issued from tie land office in pursuance of a statute
is equivalent to a legislative grant, anid would convey the right to take if the
grattee had nlone before. (Jackson v. Lervey, 5 Cow. R., 397.) The decree
of tile audiencia of Mexico is therefore of equal dignity with a legislative
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/29/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .