Melton v. Cobb (21 Tex. 539, 1858)

Wheeler, J.

That the contract of the 29th of January, 1844, if valid, reserved the land in question from location and appropriation, by the plaintiff’s certificate, cannot be doubted. But it is insisted that the contract was invalid, for the want of authority, on the part of the President of the Republic, to confer on the grantee the benefits contemplated by the Joint Resolution of the 16th of February, 1843. (Hart. Dig. Art. 2103.) He undoubtedly had authority under the Act of the 4th of February, 1841, (Id. 2005, et seq..) and the amendatory Act of the 5th of February, 1842, (Id. 2087 and 2088,) to contract with the grantee to colonize vacant land of the Republic, for that purpose, and to set apart and reserve from location the territory within certain boundaries, which he should designate, for the period of three years, from the date of the contract. (Hart. Dig. Art. 2008, 2010.) And if the reservation in this case had been for the period of three, instead of five years, from the date of the contract, that period had not elapsed when the plaintiff’s location was made. If, therefore, the contract was valid to the extent of the powers of the agent, the land was not subject to location at the date of the plaintiff’s attempted appropriation of it. But it is not necessary to consider that question, or to decide whether the President had authority originally to make the contract with the stipulations it contained ; for the reason that the contract was recognized as valid by subsequent legislation. The Act of the 3rd of February, 1845, refers to this contract in express terms, requires the contractors to have the lines of their colony surveyed, and marked by the 1st day of April thereafter, and declares that a failure to comply with this requisition, shall work a forfeiture of the contract. (Hart. Dig. Art. 2145, 2146.)" This Act cannot be regarded as anything less than a virtual ratification by the government of the Act of its agent in making the contract; and its legislative affirmation of its'validity. If, therefore, it be conceded that the agent had not authority thus to contract, at the time of enter-' ing into the contract, it must he admitted that this recognition of it, by political authority, as a valid subsisting contract, was equally effectual to validate it. as an original grant of authority, The contract was again expressly recognized and treated as an existing contract by the Act of the 25th of June, 1845, (Id. Art. 2151-2,) and these Acts were passed prior to the plaintiff’s location and survey.

It is unnecessary to refer to more recent Acts containing similar recognitions of the validity of the contract. It will suffice to say that these legislative recognitions of its validity must be deemed to have put that question at rest. (Houston v. Robertson, 2 Tex. R. 1, 23 ; Hancock v. McKinney, 7 Id. 384, 441-2.)

It is contended that, as the Act of the 3rd of February, 1845, (Id. Art. 2145,) required the contractors to have the lines of their colony surveyed and marked ; and the Act of the 25th of June thereafter, (Hart. Dig. Art. 2151,) authorized patents to issue to claimants to lands, surveyed within the limits of the colony, where the surveys had been filed in the office of the Surveyor of the county, or the Surveyor by whose direction the survey was made, previous to notice to the Surveyor, of the-limits of the colony, the plaintiff’s survey is protected. But it is to be observed that the last mentioned Act refers to, and, by its terms, appears to have been intended to embrace only locations and surveys which had been previously made ; the -words are, “ Provided the locations or surveys, in pursuance of which said patents are or may be demanded, were filed in the office of the County Surveyor,”