This case has been argued with great ability, for the appellant, and it is to be regretted that most of the authorities which he cites in support of his positions, are inaccessible to the Court. We will review only such points in the assignments of error as may be necessary to a decision of the cause. The second and fourth assignments are in . diametrical opposition to each other. The former alleges error in setting aside the dismissal of the infant child, and the latter that there was error in permitting the suit as to the infant to be dismissed. Both positions cannot be right. The appellant may select his ground, but he cannot assume opposite positions, ensuring success whatever may be the decision on the controverted point. These assignments neutralize each other, and we leave them without further comment.
The first assignment alleges error in setting aside the judgment dismissing the petition on the demurrer, and reinstating the case upon the docket. Some of the grounds urged in support of this assignment are substantially the same with those involved in the third, fifth and seventh assignments, and they will be considered together.
It is contended that the joinder of the infant child, as a party, was ground of exception, and that the demurrer should therefore have been sustained. The rulings in relation to the admission and dismissal of the infant were quite inconsistent and irregular. If the entries be taken literally, it appears that at the instant of filing the exception the infant had been dismissed. But however that may be, and whether the infant should have been a co-defendant or not, the error of her joinder, if any, was not such as to authorize a dismissal of the petition. The improper joinder of parties is not a ground for dismissal of the suit as to those properly sued. (7 Tex. R. 173.) It may affect the costs, but does not reach the legal sufficiency of the pleadings.
*27The next ground in support of the demurrer is, that the contract was illegal and void under the laws in force at the time of its execution, and that consequently its specific performance cannot be judicially enforced. I am not aware of the existence of any law in December, 1836, which would have prohibited the sale of incipient rights or titles to lands or the creation of trusts for the benefit of locators by whose funds and services the lands were to bd secured.
The decrees of colonization of the State of Coahuila and Texas, Eo. 16, and Eo. 190, had been repealed, the first in 1832, and the latter in 1834, and had no force except in relation to contracts and titles made and emanating under their provisions. The restrictions, in these laws, on the alienation of lands, were qualified by the provision in the decree of the 26th March, 1834. But none of these restrictions, with or without the qualification of the law of 1834, can be held as operative after the adoption of the Constitution of the Republic. By that, headrights were secured to citizens ; and it is manifest that some new land system was to be adopted before these could be established, and the lands under them secured. The right of property itself, where there is no restriction, gives the power of disposition. Eo restriction was subsequently enforced on headlights secured by the Constitution. Their transfers have been recognized as valid, and purchasers have been allowed for their own benefit to prove and establish the rights of their assignors. A very large portion of the lands of the country is held under titles emanating on such assignments. If the transfer of the whole of a headlight be valid, and be recognized and enforced by law, the sale of the one-half cannot be void. We are of opinion that the contract was valid in its origin, and was such as to entitle the plaintiff, on discharge of his obligations, to a decree for specific performance.
It is urged further, that the demand is stale, and that the plaintiff from his laches in carrying out the contract, and in claiming a specific performance, is not entitled to a decree. This defence was not pleaded, and does not appear, in any *28shape, to have been brought to the notice of the plaintiff or of the Court below. Had it been set up, the plaintiff might have explained his apparent dilatoriness by facts showing such diligence as was compatible with the circumstances of the case. True, a long period had elapsed between the date of the contract in 1836, and the suit in 1848. But the Land Offices of the country were not opened for any purpose until 1838 ; and in the case of Dobbin v. Bryan, we held that the General Land Office was not practically opened until some time in 1844. The plaintiff could not be justly charged with delay in procuring the patent until after that period. The certificate was obtained in 1838; the land surveyed in 1841, and in 1846 it appears that an attorney was employed to perfect the title and have partition of the land. The patent was obtained in 1847, and this suit commenced in 1848: Possibly the patent might have been obtained more expeditiously, and reasonable diligence should be enforced. But the embarrassment in perfecting title to lands, especially where they lie remote from the General Land Office, are notorious and should be duly estimated, on a question of diligence in the locator. This land was surveyed in 1841, and although not patented until 1847, it might have been settled and occupied as a home long before that period. Ho complaint is made of the quality of the land. For aught that appears, Mrs. Jones was satisfied with the selection. She accepted it, and no attempt was made by her to rescind the contract, or to incur any of the charges incident to the title. She attempted its repudiation in 1846, by a sale of the whole of the land to Emmons, but neither she nor her vendee made any effort to procure the patent; and this was subsequently issued at the charges of the plaintiff. She, or her vendee, claims the land thus secured by plaintiff, and we are of opinion that any apparent delay of the plaintiff was not, under the circumstances, of such character as to defeat his right to a decree.
The appellant insists here, that the location and survey were of the essence of the contract, and there being no proof of *29the performance of such acts by the plaintiff, he is not entitled to recover. One of the difficulties in this case is, that some of the grounds assumed and urged do not appear to have been suggested below. No charges were asked by the defendant, as to the proof to be introduced by the plaintiff. No intimation as to the deficiency of proof appears, from the record, to have been given. No instructions, in fact, were asked by either party., Some one must have ordered and paid for the location, survey and patent. It is not pretended that these acts were done by the defendant. If they had been, facts so important to the defence would doubtless have been established by proof. These acts were stipulated for by the plaintiff. It is alleged that they were performed by him, and it was proven that the final act, the consummation of title by patent, was done through his agency and at his expense. The jury, from all the facts; there being no evidence to the contrary, might well have presumed that the stipulations of the contract had been discharged by the plaintiff.
The ninth assignment is that the Court erred in its charge to the jury. The charge in substance was, that the parties could lawfully make such contract, and that if the jury believed from the testimony, that the contract was made in good faith, and that the plaintiff did comply with the stipulations on his part, and that Emmons had notice of the contract, they would find for the plaintiff. There is no error certainly in these instructions. But the Court, in addition, charged the jury, that the most important question for their determination was as to the notice to Emmons. If he purchased with notice of the existing equities of Oldham, he bought in trust for Oldham, and is bound to relinquish in his favor, and as they found the facts, they would find for either, plaintiff or defendant. This is objected to by appellant, as directing the attention of the jury from the substantial matters in issue, to one comparatively unimportant, and as inducing the jury to believe that the question of notice was the only one of moment for their decision.
*30This we believe to be an erroneous deduction, as to the effect of the charge. Juries are presumed to be men of common understanding, who can place a common sense construction upon the language of the Court, in its instructions. They were charged to find several facts, among which was notice. For some reason the Court in a separate and subsequent charge, treated this as the most important fact. The jury had, perhaps, agreed on the other facts, or requested further instructions as to this particular point. It certainly was a most important fact. For although the contract may have been valid, and faithfully executed by the plaintiff, yet he would not have been entitled to recover, had the defendant purchased without a knowledge of his rights. There is nothing in the charge which would lead the jury to consider the other vx facts as unimportant. It may be inferred from this special charge, that the effect of the notice was the principal point of contest below. We are of opinion that there was no error in the charge of the Court, and that this assignment cannot be maintained.
The land divided should have been described as amounting to a league and labor, and not to a league of land. But as all the lands within the boundaries of the patent are equally divided, there can be no doubt that the plaintiff is entitled to one-half of the league and labor, and not one-half of the league. The description of the boundaries in the patent will govern, and not the amount at which the land is, by mistake, estimated.
There is no error in the judgment, and it is ordered that the same be affirmed.
Judgment affirmed.