This was an action of trespass to try title. The plaintiff, (who is appellant,) claimed the land by virtue of a certificate and survey thereupon, in 1850.
The defendant justified his possession under a title for two leagues of land issued to Flores and Menchaca, as colonists, by the Commissioner of Power & Hewitson’s colony, in 1834; obtained through the agency of an attorney representing the grantees, and who was also one of the assisting witnesses.
There were objections to the evidence of title introduced by the plaintiff, which it is not material to notice.
The defendant offered in evidence a certified copy of the title, relied on by him, from the General Land Office, to which the plaintiff objected, 1st, That it wanted a stamp; 2nd That it had but one assisting witness; 3rd That it was made to an agent; 4th, That it was a title in joint tenancy; and 5th, That it conveyed only a life estate. The Court overruled the objections and admitted the title in evidence. Witnesses were introduced by the plaintiff, who testified, in substance, that they had been acquainted in Power & Hewitson’s colony since before 1834, and that they had never known the persons named as the grantees in the title introduced by the defendant; but that they could not say they knew all the persons in the colony; the persons named might have been there without their knowledge.
The Court instructed the jury, at the request of the defendant, that, “ actual residence of the grantees in the colony pre- “ vious to the grant was not necessary; and that they had six “ years after the issuance of the title to cultivate and occupy “ the land.”
The plaintiff asked the following instructions, which were refused. 1st, that if the grantees in the original grant, were never domiciliated in the colony; or 2nd, if the grantees abandoned the country previous to, or during the struggle for independence ; or, 3rd, if the grantees were never in the colony, the grant is void.
There was a verdict and judgment for the defendant and the plaintiff appealed.
*614The title relied on by the defendant was the elder title, and if valid, must prevail. Our opinion as to its validity will supersede the necessity of inquiring into the sufficiency of the evidence of title introduced by the plaintiff.
The first and second objections taken to the title are not supported by the record. It appears by the copy from the Land Office, introduced in evidence, that the title was not wanting in either of the particulars indicated. The paper appears to have been duly legalized; and the attorney of the grantees does not appear to have had any interest to disqualify him from being one of the assisting witnesses.
To the third and fourth objections, it is a sufficient answer, that there is nothing in the Colonization Laws, nor is there any general principle of law, which forbade the colonist to employ the instrumentality of an agent, or attorney, in obtaining his grant. Nor are we aware of any inhibition in the law, against comprising in one final title, the lands granted to two colonists.
The remaining objection is equally untenable. The title introduced in evidence was the final title, vesting the fee, with the possession, in the grantees. It is less formal in its statements and recitals than colonial titles usually are; but it is not, on that account, the less effectual to pass to the grantees the ultimate proprietorship of the soil. It adjudges to the grantees the title and possession of the land, which had been surveyed for them by a Surveyor appointed for that purpose ; the Commissioner recites that he put the grantees in possession, “ performing all the acts of true possession and he formally executed to them the title. There remained no act to be done on the part of the government to complete the title. No further act of confirmation or investiture of title was contemplated or required by the law; and nothing further was requisite to vest in the grantees a perfect title. This subject has been so fully considered in cases heretofore decided, that it is unnecessary, and would be quite superfluous, to. enter anew upon its discussion. The several objections to the title, *615relied on by the defendant, must be held to be untenable, upon the principles, settled by repeated decisions of the Court, which are too familiar to require particular reference.
The Court did not err in the instruction given at the instance of the defendant. Actual residence in the country, previous to the making of the grant, has never been held necessary to the validity of the title. Such was never the construction placed upon the Colonization Laws. The colonists were allowed the time prescribed by the law to comply with the conditions annexed to their grants, most of which have been dispensed with, in reference to grants, of the character of the present; thereby discharging the titles of the colonists, of such conditions, and rendering them absolute, and indefeasible by reason of their non-performance.
The ruling of the Court, in refusing instructions asked by the plaintiff, was manifestly correct; for the reason, that the instructions proposed involved the assumption of facts not warranted by the evidence ; or the assumption of a right, on the part of the plaintiff, to impeach the title for the non-performance of conditions, of which it bad been discharged, or for other causes of forfeiture by acts subsequent to the grant. There can be no pretence that there was any evidence conducing to show an abandonment of the country by the grantees. The burden of proof rested with the party impeaching the grant. It devolved on him to make out, in evidence, the fact of abandonment clearly and conclusively. Tet there is not the slightest foundation in the evidence, for the assumption, that the grantees had abandoned the country; thereby subjecting their titles to the operation of the 30th Article of the law of the 24th of March, 1825, or of any other provision of the Colonization Laws on that subject, whereby the land would have become vacant and subject to location. And to have given the instruction asked, would have been calculated to mislead the jury, by inducing them to suppose there was evidence sufficient to warrant them in finding for the plaintiff on that ground. To have given the instruction, therefore, would have been improper.
*616It was not competent for the plaintiff to impeach the title, on the ground that it was forfeited by reason, of the grantees ■ having left the country to avoid a participation in the struggle for independence; or by reason of the non-performance of conditions subsequent; even upon the supposition that those conditions had not been discharged. (7 Tex. R. 384; Swift v. Herrera, 9 Tex. R. 263, 279, 280.) And the instructions asked, which were based upon the assumption of such a right were properly refused. Besides, the evidence did not authorize the instructions, if they would have been otherwise legally proper.
There were other rulings of the Court assigned as error, which in the view of the case we have taken, it is not necessary to notice; “ because” (as was said by this Court in the case of Bissell v. Haynes, 9 Tex. R. 588) “ the title of the plaintiff (in “ this case of the defendant) having been shown by document- “ ary evidence, to be perfect and valid, the land embraced in “ it was not a part of the public domain, and was not subject “to location.” Consequently, the rulings of the Court upon the admissibility of the plaintiff’s evidence of title was immaterial. (And see as to this case generally, Bissell v. Haynes, Id, 556, 585, 586, 587.) The judgment is affirmed.
Judgment affirmed.