It appears from this record that one Jacob G. Lentz, who became a resident Avitli his family in Texas in the year 1832, and so continued till his death, in 1841, Avliich gavrn him a claim under the colonization lavrs of Mexico—a claim guaranteed by Art. XY of the plan of the provisional government, as Avell as by the constitution of the republic and of the *348State—to a headlight of one league of land, as a colonist, sold and conveyed, on the 2d day of September, 1839, to one Jesse Haldeman, one-half of said league, upon which he was then settled, and in possession; and for which he subsequently obtained a grant from the State. The consideration for this sale was acknowledged in the deed to be five thousand dollars, with which the grantor therein professed to be fully satisfied. This deed was duly proven by the two subscribing witnesses, in 1840, and recorded in the proper office in the same year. It appears also, by this record, that Jacob G. Lentz, after the opening of the land office (he being one of the preferred class under the law in the location of claims), went before the board of land commissioners for Bastrop county, on the Í2th day of April, 1838, within the six months prescribed for the preferred class, and established his right to, and obtained a certificate for his headlight, which was located on the same day, on the identical land in controversy, as appears by the indorsement thereon of the surveyor of Bastrop county, the said Lentz then living on, and being in possession of the league. On the 20th of October, 1840, the clerk of the county of Bastrop, in which county the land was situate, certified that the certificate had been examined by the commissioners appointed for the detection of fraudulent land certificates, and was recommended by them for patent. On the 5th day of January, 1841, the district surveyor of Bastrop county again surveyed the same league for Jacob G. Lentz, who had then been dead six or seven years. Upon the return of the field notes to the land office the patent issued to Jacob G. Lentz, in whose name the certificate had been granted by the board of land commissioners.
There are a great many other facts suggested by the pleadings and offered in proof upon the trial; but the court does not deem them at all essential to the proper elucidation of the lights of the parties in this contest. It is believed that the substantive facts, which must determine the vital questions in this controversy, are sufficiently presented, though epitomised, *349in tliis condensed narrative, derived from a most voluminous record.
By the common law this grant by the State to a dead man would be a nullity, totally inoperative and void. So, also, would it be by the civil law ; as by each system there can be no grant without a grantee.
But by the act of the 4th Legislature, Session Acts, page 21, approved Dec. 24, 1851, which seems to have been omitted by the different digesters of the statutes of the State, but to which the attention of the court has been called by the learned and critical counsel, such a grant is made valid, whether the grant was made before or subsequent to the passage of’the act. By the statute, then, the grant or concession is valid, though made to a dead man, and makes the land granted or conceded an estate of inheritance which the heirs of the grantee will take as such—not by concession or grant directly to them, but as inheritors of the estate of the ancestor.
According to the provisions of the act of the Congress of the 14th of December, 1837, in the 11th, 12th, 14th, 15th, 17th and 19th sections of said act, it is apparent that the certificate was properly obtained from the board of land commissioners ; and the location made upon the land by the county surveyor of Bastrop county, in the lifetime of Jacob G. Lentz, nearly eighteen months before the date of the deed of conveyance to Jesse Haldeinan. Even when no survey has been made, if such location is sufficiently specific, “ so as to furnish notice to the ordinarily diligent,” said this court in Lewis v. Durst, 10 Tex. 415, and in Hollingsworth v. Holshousen, 17 Tex., 44, “that the appropriation of the land has been made,” the right is vested, as well before as after the survey. In this case it is error to suppose that the only pretended legal right of Jacob G. Lentz was founded on the Mexican laws of colonization. Those laws were abrogated before any legal right accrued to him, though the meritorious cause of that subsequent legal right was his coming in as a colonist. His legal *350right had its foundation in the recognition, by the new political authority, of his claims upon the former government as a colonist, his residence in the country at the declaration of independence, and the authentication of the character of his claim by the official agents of the government, the obtention of the certificate from the commissioners, and its location upon the land. These were public official acts, which committed the government to the fulfillment of its sacred pledge, and which the government had provided in the act itself might be judicially enforced against its ministerial agents. This constituted the legal tie, the obligation of the government, and the right of the citizen. When the certificate was presented by the holder to the surveyor, he was authorized to survey any land, belonging to the public domain, pointed out to him by the owner of the certificate; and it seems, from the indorsement of the surveyor upon the certificate, the identical land, “ League PTo. 20, on Walnut creek, west of the Colorado river,” was so pointed out to him. It is admitted in the answer of the defendants that a survey of the land had been previously made, whether by the official agents of the former, or of the new political authority, is immaterial, and an attempt made through one Robert Peebles, assuming to act as commissioner of Austin and Williams’ colony, to carry it into grant. This survey, therefore, had been returned, under the law, with the archives to the general land office. And according to the case of Chadoin v. McGee (20 Tex., 476) the applicant had a right to select land already defined by metes and bounds, which public policy only required as a notification of others wdio might be seeking an appropriation of portions of the public domain. This view was virtually reaffirmed in the same case on its final decision at the Galveston term, 1868.
Then, upon this state of facts, what was the nature and character of the interest in the land held by Jacob G. Lentz at that time ? In the case of the Commissioner of the General Land Office v. Smith, 5 Tex., 480, this court considered a location and survey, by virtue of a valid certificate, a valid right, *351a right of property, and the commissioner was compellable to issue a patent thereon; that it was a subject of taxation, capable of inheritance, and protected by the constitutional guarantees of the right of property, and consequently alienable by deed. (See, also, 3 How., 459; 1 Pet., 655, U. S. Reports. Every presumption is to be indulged in favor of the correctness of the action of the agents of the government; otherwise there would be great insecurity in all rights of property. Such indulgence is a necessary maxim in judicial polity for the stability of all civil affairs. The location was made, but the field notes were net returned to the land office until long afterwards; consequently the commissioner could not issue the patent. The surveyor indorsed on the recommended certificate that he did locate it on the land. Such location by him could only be by his then making the survey, or by his adopting a survey which he had previously made—either of which would be an actual severance of the land from the public domain. By various acts of the Legislature, the time for returning field notes to the land office was extended from time to time, and the equities of the locators were thus recognized and preserved. And from the final grant of this identical land to Jacob G. Lentz, it will be observed that the equity of his claim was respected, and was the basis of the patent. Certainly the location had never been abandoned by him; for he was then living, and continued to live upon the land till his death. Being in the actual possession of the land, with such a right and such an interest in it, it was, to all intents and purposes, property, subject to the conditions of bargain and sale, and of any mode of alienation, which he might choose to adopt. . If the circumstances of the acquisition of this right had transpired subsequent to the act of the 24th of January, 1856, upon the subject of forced heirship, he might have devised by last will and testament the whole of it to whomsoever he pleased, and have disinherited those who now claim it as his heirs. He did bargain, sell, alien and convey one-half of the league, with the right to which he was thus invested, and of which he was then in possession, to the vendor of these *352appellees, for the consideration of five thousand dollars, with which he acknowledged himself satisfied, and bound himself and heirs to make good the conveyance.
The subject matter of the sale and conveyance by Jacob G. Lentz to Jesse Hakleman, was one half of the land contained in “ league Ho. 20 ”—the identical land upon which the certificate was laid, and for which the patent afterwards issued. Even admitting, for a' moment, that Jacob G. Lentz had no title at the time of the sale, •would he be permitted, if alive, to deny that he had title ? In his deed, his seizin or possession of the land is distinctly affirmed; and both he and all in privity with him, are estopped from afterwards denying that he was so seized, or possessed at the time of his conveyance. The knowledge or -want of knowledge by his vendee of the nature of the vendor’s right, or title, or estate, is not of the least moment in the case, unless the vendor had practiced some fraud in the sale. Washburn, in his valuable work on Real Property, vol. 3, p. 99, says: “An estoppel works upon the estate and binds an after-acquired title, as between parties and privies.” It is so decided by the Supreme Court of the United States, in the case of Van Rensselaer v. Kearney et al., in 11 How. R., 325; also, in the case of the Lessee of French and wife v. Spencer et al., in 21 How. R., 228. So that, if --Lentz had no title at all at the time of conveyance, carrying the identical subject matter of the contract into actual grant afterwards, the title enured to the benefit of his vendee, as against his heirs, who were privies in estate as well as in blood. The case of McWilliams v. Nisly & Co., 2 Serg. and R., 507, 517, 518, cited by Washburn, where the ancestor had conveyed the “premises,” the particular land, and his heirs claimed that when he conveyed he had no title, but acquired one subsequently, which had descended to them, seems to be almost directly in point with the present case. In that case, the learned judge pertinently asks: “ Can the heirs recover against his grantees?” and proceeds to answer the question by saying; “ It appears to me, in such a case, they would be estopped by *353their father’s deed from denying his title; and if there were occasion for further assurance, equity would compel them to make it.” And his colleague in the same case said: “ So, in equity, a grantor conveying land for which he has no title at the time, shall he considered as trustee for the grantee, in case, at any time afterwards, he should acquire title. Chancery would compel them (the heirs) to convey to the defendants,” (the purchasers.) The authority is persuasive; and the tone of morality which it indicates, makes it not unsafe as an exemplar for imitation, when no positive law forbids judicial interpretation.
But, in addition to all this, there is a covenant of warranty in the deed against the heirs. In such cases the principle is, if the ancestor has wrongfully conveyed the land, with warranty, to make the covenant operate as a rebutter to the claim of the heirs to whom the assets descended, and thereby prevent circuity of action. Because, if they hold the land, which is real assets, it should he, in honesty and justice, subjected to the payment of the damages for the breach of the covenant of warranty. For, if the land is recovered from the covenantee, he has his right of action to recover from the heirs upon the covenant of warranty. The heirs being estopped by the deed of the ancestor to deny his title, they are equally concluded by the express and solemn recitals in the deed. Persons, not in privity with the grantor, would not he affected by such recitals. Of the amount of the consideration, and of its nature and character, which he required for the conveyance, he was the. sole and exclusive judge. No fraud, nor force, nor duress, is alleged to have been used in the obtention of the deed. If such an allegation had been made, the burden of proof would have been upon the defendants. Nothing in the statement of' facts conduces, in the slightest degree, to manifest any such undue advantage.
From the view thus far taken of this case, it will he observed that this is a contest for land between the heirs of the grantee of' the government and purchasers, deriving title under a deed of *354conveyance, with a covenant of warranty, from the ancestor of those heirs, made in his lifetime. It is clear to the mind of the court, from the principles of law adverted to in this opinion, that the heirs, under this state of case, are precluded horn taking" and holding.
But it appears that there was only one of the heirs in the occupancy of any portion of the land in controversy; and that heir, from the proof, held actual possession of only a portion of the land, by metes and bounds, as her share of the inheritance, and against whom, and those holding under her and her husband, the suit was brought. This heir, in defense, set up the statute of limitations of three years, having occupied such portion of the land from the fall of 1853 till the bringing of this suit in 1857. ISTow, if this heir was simply attempting to hold by heirship, she was equally estopped by the deed of the ancestor, and was not in a condition to plead the statute. The ancestor having disposed of his right in his lifetime, and the title, when the patent issued, having inured to the benefit of his vendee, the heir had neither title nor color of title by a regular, or an irregular, consecutive chain of transfer from the sovereignty of the soil. Without such title, or color of title, the plea is unavailing. If this were a case in which the doctrine of estoppel did not apply, there would be much force in the very able and plausible argument. of the learned counsel for the appellants, upon the construction of the three years’ statute of limitations. But the court is constrained to believe that this is not the character of case in which repose was sought to be attained by that statute.
Wherefore, the judgment of the court below is affirmed.
Affirmed.