Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 33
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AUSTIN, 1849. 65-66
3McMlullen v. Hodge.
the same conditions and restrictions as contained in the original deed, and as
prescribed by tlhe laws il force at the time of the change of the Goverllment.
Nothing but a subsequent act of the new Goveirnment could hlave removed
those restrictions. If the mere act of tlhe Revolution destroyed tlhe restrictive
clause of the grant as intended, it certainly destroyed every clause. Such we
lave no doubt was tl'e c.lse. The law of 1781 was conltilned in force ill
Mexico, with all its prohibitions against Iiidiasl , till the Declaration of Independence
of the Republic, and in Texas even down to the year 184O.
But it is said the consent of the Government must be presumed from tle execution
of the sale by the officer. No such consent is even mentioned. By the
decree we have referred to it require(l tle consent of the fiscal or atto:lney general.
The same law was continued in Mexico.
This grant was made without prejulliCe to tile right of the Kilng or a third
party. There seems to be some little obscurity ii the latter clause in tile
granting of tle deed. The language, literally translated, is as follows: 'IAnd
is made to them " (the Indiaiis of the population of the mission of San Jose)
"a gift of them," (the eleven leagues of pasture lalld,) " by way of sale, for
labors, pastures, rearing of cattle, andl other necessary plrposes, without being
permitted to alienate or sell aiy part of said lands, except with the express
license of the Superior Government of this Kingldoln, under paill of nullity of
this gift, without prejudice to his majesty or a third person."
It is said that the expression l' without prejudice to his majesty or a third
person" las reference to the penalty pronounced; that is, that the nullity
should be without prejudice to his majesty or a third person. It is tile gift
(merced) which is made without prejudice to his majesty or of a tlird person.
It, is an universal rule in all Spanish grants to insert the clause without prejudice
to a third person, and as this was a mere tenancy at will the same clause
was reserved [66] in relation to the grantor. If we supply the word "and,"
and punctuate differently, thle sentence will be perfectly clear: "And is made
to them a gift, &c., for their labors, &c., without the permission of alienating,
ceding, or selling any part of said lands, except witl express licellse of the
Superior Government of this Kingdom, under pain of nullity of this gift,"
"and " without prejudice to his 1Majesty or a third "person." Thlat is, the gift
was made without the power of selling anld without prejudlice to his majesty
or a third person. It is susceptible of no other construction. The sale itself
annuls the gift.
V. The grant in question, whatever may have been the amount or quantity
of interest in the estate intenldetl to be granted, was in favor of a corporation
or civil society which has ceased to exist for more thln a quarter of a century;
and by operation of law, as well as by the action of tile Governmelt, all the
property belonging to the said corporation or society at tle time of its dissolution
revestedl in the public or grantor, and became subject to distribution
according to the laws of the country.
In support of this head see the whole subject exhausted in the case of Turpin
v. Locket. (6 Call. Va. R., 113.)
On the 13th of September, 1813, the cortes abolished the missions, declaring
the Indians should no longer be under the control of the fathers, bltt that their
effects should be delivered over into the hands of the ordinary, and alone subject
to the control of the civil authorities. The sixth and last article of the
decree provides that the lands belonging to the missions should be distributed,
in the same manner as provided for in the decree of 4tlh January, 1813. (See
Col. Dec., vol. 5, p. 106.) Finally, by decree of 1st of October, 1823, all the
monastic orders of every kind, colleges, and charitable, of every class, were
suppressed. (Dec. Mex., vol. 5, p. 36; also Col. Dec., pp. 1-5; Id., pp. 106,
135-138.) In December, in the year 1823, Sancedo acting as political chief,
the provincial deputation of Texas, acting under an order of the Supreme
3 38
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/41/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .