The petition, with its amendments, was in effect a suit for specific performance of a contract by William Whitaker for the sale of land granted to him as a colonist, by the State of Coahuila and Texas, covenanting to convey the land as soon as the restriction on its alienation should be removed. The defendants' demurrer to the petition was sustained, and this has been assigned as error. The contract in this case does not differ materially from that presented in the heirs of Hunt v. The Heirs of Robinson, 1 Texas, 748, and other contracts which have since been adjudicated on the authority of the case cited. The rule laid down in the first case has been uniformly maintained, and such contracts have not been enforced, unless sustained by possession, and equities independent of the contract. No such equities are averred in this case.
But it is insisted that there has been an erroneous construction of the provision of Art. 27 of the Decree of Colonization of the 24th March, 1825, p. 20, L. C. and T., which declares that settlers shall be authorized to alienate their land when they shall have completed the cultivation thereof, and not before ; that this is but a prohibition of sale, until after cultiva*73tion, and not until six years from the date of the grant. Had there been an averment that the colonist had cultivated his league, in its totality, before the date of the contract of sale, such fact might have perhaps rendered a review of its former decisions incumbent upon the Court. No such fact has been alleged or proven in any case which has been brought up for revision, and if such were the fact, it would not operate a modification of the decision.
The cultivation of land in its totality, (en su totalidad,) as required of settlers, in the 27th Art., is not a very intelligible expression. It could not mean that a league should be cultivated to the utmost extent of its capacity, before the settler would be authorized to make a sale. If it did, the restriction might not be removed for generations, as the cultivation might not in the mean time be completed. Rejecting this construction as too onerous and unreasonable and considering the provision in connection with other articles of the decree, the conclusion is inevitable, that the term total cultivation refers not to the extent of the cultivation, the improvements made or the cattle pastured, but to the length of time or period of cultivation. Lands were granted to both purchasers and colonists for the purpose of settlement and cultivation, and both were required, under penalty of forfeiture, to cultivate them within six years from the date of their acquisition. A grantee by purchase, however, could sell Ins lands at any time, provided Ms vendee obligated himself to cultivate the same within the prescribed period of six years from the date of the grant, and this is the effect of the first part of Art. 27, and then follows the provision that the settler shall not alienate until after total cultivation. This is intended to he the contrary of the previous part of the Article, that allowed the purchaser to sell within six years, his successor being obliged to finish the cultivation within the prescribed time. This prohibits the colonist from sale until after he has finished the cultivation, or, in other words, until the six years have expired. This is the
*74•f* general limitation for the performance of all the conditions of his title, for the payment of the price as well as the cultivation, &c., (Arts. 22-26,) and at the end of six years it is either totally cultivated or it is not cultivated at all, in legal contemplation : that is, so cultivated as to save it from forfeiture. We are satisfied with the construction of the provision as given in Desmuke v. Griffin, 10 Texas, 113, and are of opinion that the judgment below should be affirmed.
Judgment affirmed.