The defendant in error has filed a motion in this court for a rehearing, upon the following grounds:
1. Because the court erred in holding, that if Luke Lesassier made a valid grant of the eleven leagues of land to Rafael de Aguirre, on *Page 411 the Brazos River, his power under the concession was exhausted, and the subsequent grant to the same party by virtue of the same concession was void.
4. Because the court has passed on a point not raised by the assignments of error, nor passed on by the Court of Civil Appeals.
5. Because the point passed on by this court was not an issue raised on the trial below, and was not and is not now an issue in the record by the pleading or assignments of error.
Upon the question as to whether the point decided is before this court, counsel for the motion are in error. In the petition for writ of error, the want of power in the commissioner, Lesassier, to issue a second grant upon the concession, is made in this language: "The court erred in holding that Lesassier had power to issue a second title after exhausting the concession by his granting the eleven leagues to Rafael de Aguirre, on the Brazos. (Counsel are aware that the decision followed Hanrick v. Jackson as to this particular, which this court is respectfully asked to open.) The defendant below, Howell, assigned as error the charge of the court upon which this question arose. The Court of Civil Appeals says: "Appellant excepts to the entire charge of the court. We have considered those portions of the charge specially pointed out as objectionable." And then proceeds to pass upon the special charges requested by the defendant below, as follows: "Special charge number 20 is the first called to our attention. This instruction contains several distinct propositions. The first of these propositions is as follows: 'You are charged, that the grant to Rafael de Aguirre, of October 4, 1833, on the Brazos, is a perfect and legal title, and that the extension of such grant exhausted the power of the commissioner, Lesassier, to extend title to Rafael de Aguirre by virtue of the concession of 14th June, 1830.' We think the court's charge sufficiently informs the jury that the grant to Rafael de Aguirre, dated October 4th, was a formal grant; that the extension of this grant exhausted the power of the commissioner conferred on him by the concession of 14th June, 1830, considered with reference to the testimony of this case, can not be maintained. Hanrick v. Jackson, 55 Tex. 31."
It will be seen that the Court of Civil Appeals did actually pass upon this identical question. In the brief of counsel for plaintiff in error this point was distinctly urged, and this court was called upon to review the case of Hanrick v. Jackson. It is no doubt true that counsel for defendant in error considered the question as settled by the decision in Hanrick v. Jackson, and therefore did not discuss it in their brief.
We have carefully reconsidered the case upon this motion, and have examined the authorities cited by counsel, but we find no reason to change our opinion as heretofore expressed.
Able counsel, with great labor and research, as shown by their presentation of the question, have not presented to us any authority *Page 412 for the position that an alcalde, as such, ever had authority under the laws of Coahuila and Texas to grant the eleven leagues title.
The only authority which Lesassier had was the concession issued by the Governor on the 14th of June, 1830. This was a special authority to do a particular act, which, when done, fully satisfied and exhausted the authority vested in him.
Article 14, section 2, of the Constitution, contains this language: "All unsatisfied genuine land certificates now in existence shall be surveyed and returned to the General Land Office within five years after the adoption of this Constitution, or be forever barred; and all genuine land certificates hereafter issued by the State shall be surveyed and returned to the General Land Office within five years after their issuance, or be forever barred; provided, that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the State, evidence of the appropriation of which is on the county records or in the General Land Office, or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him."
This language applies alone to land certificates, and can not be construed to deny to any person the right to acquire any of the public domain subject to such acquisition by any lawful means, except by location under a land certificate.
We do not find it necessary in this case to determine whether this land would have been subject to location by a valid land certificate or not. In the view that we take of the case, the right of the defendant, Howell, to acquire the land under the Act of 1873, is to be determined independent of this section of the Constitution.
Howell's survey was made, as appears from the record, on the 4th day of May, 1876. At that time there was no law which prohibited the acquisition of this land under the Act of 1873, if it was unappropriated public domain. Article 3951 of the Revised Statutes of Texas was adopted in 1879, after the survey was made for the defendant, Howell. If that article had been in force at the time the survey was made, it would have presented the question as to whether the title under which Hanrick claims was such as to prevent the acquisition of the land by Howell; but, as we said before, this nor any other law was in force prohibiting settlement upon this land at the time the survey was made.
If the title under which Hanrick claims had been issued by any person authorized to grant such titles for the State of Coahuila and Texas, then such title, although voidable at the election of the State, would not have been void. But since, as we hold, Lesassier had no authority to make a second grant under the concession of June 14, 1830, his act in making the second grant, if it be a fact that he had previously made a valid grant by virtue of the same concession, was without any authority on his part, and had no more effect than if it had been made *Page 413 by a person who never had the semblance of authority; in that event this would be a void grant, and would not appropriate the public domain of the State. Smith v. Power, 23 Tex. 34; Dawson v. McLeary, 29 S.W. Rep., 1044; Lindsey v. Miller, 6 Pet., 666.
The authorities cited by counsel for the defendant in error are cases in which the grant was made by an officer who had authority under the law to make grants of land, and which were not void, but voidable. That which is void is of no effect, and can confer no right, and that which confers a right can not bevoid. It is true, that in Winsor v. O'Connor,69 Tex. 571, Judge Stayton says that the patent issued was void, but this is one of the instances in which the word void is used not in the sense of its being a nullity, but as being voidable. It was issued by an officer who had the authority to issue patents, and although issued upon a certificate which itself was wrongfully issued, yet it was the exercise of authority intrusted to him by law. In that case, Judge Stayton says: "Land is said to be 'titled' when a patent is issued, which on its face is evidence that the State has parted with its right and conferred it on the patentee. For reasons not appearing on the face of the patent, the grant may be void or voidable, but the land embraced in it is nevertheless 'land titled.' " This language has particular reference to the section of the Constitution quoted above, and that case is decided upon the construction of that section of the Constitution.
In the case of Railway v. Locke, 74 Tex. 370, there was a valid concession for each grant of land, and the commissioner had authority from the Governor of Coahuila and Texas to make each grant. It was charged, that the intention of getting the concessions to each one of the parties was to enable Beales to acquire more land than was authorized by the law; and also, that a portion of the land lay outside of the district for which the commissioner was empowered to act. In that case, the concession was the evidence of title, as in this. The extension of the title or the placing of the parties in possession of the land was the act of the commissioner. There was, as before stated, a valid concession for each survey, and valid authority for the act of the commissioner in extending the title to each.
The cases do not support the proposition, that a grant made without authority of the State, or by any person not empowered to make such grant, can confer any right whatever. If the fact be found that Lesassier had made a valid grant under the concession in question to De Aguirre, upon the Brazos River, prior to the making of the grant now in question, then the attempt to make a second grant by virtue of that concession was wholly unauthorized, and did not in any way appropriate the land or confer any right thereto, and in that event it was public and unappropriated public domain, subject to appropriation by the defendant Howell at the time that his survey was made.
The motion for a rehearing will be overruled.
Overruled.
Delivered June 24, 1895. *Page 414