
61 U.S. 235 (____)
20 How. 235
SAMUEL A. WHITE, WILLIAM M. COOKE, CHAMBERS ETLER, JOHN H. BALDWIN, HENRY J. HUCK, AS ADMINISTRATOR OF HERMAN H. RODGERS, AND IN HIS OWN RIGHT, JOHN P. O'BRIEN, OLIVER H. STAPP, AND THOMAS ROOKE, PLAINTIFFS IN ERROR,
v.
ALBERT T. BURNLEY.
Supreme Court of United States.

*246 It was submitted on printed argument by Mr. Reagan for the plaintiffs in error, and argued by Mr. Bibb and Mr. Hughes for the defendants. There was also upon that side a brief filed by Mr. Ballinger.
Mr. Justice CATRON delivered the opinion of the court.
This suit was brought and tried in the District Court of Texas, to recover a league of land lying in that State, fronting in part on Matagorda bay, east of the mouth of the Guadalupe river, and purporting to be in Martin De Leon's colony or empresa.
1. The first objection made on the trial, was to the introduction of the grant offered in evidence, on the ground that the land did not lie in the colony, and therefore the officers of the same wanted jurisdiction, and had no power to grant to Benito Morales, under whom Burnley claims. If the premises were true, the conclusion would certainly follow. (McLemore v. Wright, 2 Yerger's Ten. R.)
It is a historical fact, established as such by the decision of the Supreme Court of Texas, in the case of De Leon v. White, (9 Texas R., 598,) that the empresario contract of Martin De Leon was so amended by order of the General Government of Mexico as to include the littoral leagues along the coast of the Mexican gulf, including that portion thereof where the land in dispute lies.
It is not only established by the history of the country; but *247 here, it was also proved by witnesses, after proof had been made to the court, that many of the documents of the empresa had been destroyed by the soldiers of the Texas army during the revolutionary struggle. The court left it to the jury to determine whether the land lay in the empresa of Martin De Leon, and they so found. In doing this, we think there was no error committed as against the defendant.
2. The next question appears on the face of the grant. All the steps leading to the grant, with one exception, are regular.
The quantity of land that the lines of survey include, is equal to two leagues, whereas only one league is called for; and the reason the surveyor gives in his certificate of survey for the excess is, that he included in the survey a bay of the ocean, which was not subject to grant, a quantity equal to a league.
This statement was proved to be untrue  almost entirely. The grant contains two leagues and more of fast land; and for this reason it was insisted at the trial that it was fraudulent and void. But the court charged the jury to the contrary, with several qualifications. These we deem to have been useless; as our opinion is, that a regular grant (that is, a completed title, made by those exercising the proper political power to grant lands) is not open to this objection, by an opposing claimant setting up a younger title; and we understand, that on this principle the well-considered cases of Hancock v. McKinney, (7 Texas,) and of Swift v. Herrera, (9 Texas,) proceed. Such is the settled doctrine elsewhere. (Overton v. Campbell, 5 Hayw. Ten. R.)
How far the Government of Texas might interfere by "due course of law," (that is, by a suit in its name and behalf,) is a question for that Government to decide. Owen v. Rains's Lessee (5 Haywood's Ten. R., 106) is to the effect that it can only be done by suit.
To hold that this grant was void, because the surveyor returned an excess in his survey, without any evidence that the grantee participated in the matter, as is the case here, would be an alarming doctrine through a wide-spread portion of the United States. No instance is recollected where the State has interfered by suit to reform a land patent for excess of quantity. The consideration of more or less of excess, to constitute a prima facie case of fraud, would give a latitude of discretion to the judicial department over the executive and granting power, inconsistent with the independence of the latter in this branch of administration. Under the Spanish and Mexican Governments, the judiciary had no authority to interfere at all in any case. The political department retained to itself all the power to reform or to annul titles.
*248 But where the executive authority intervenes, and calls on the courts of justice to aid "in the due course of law," no collision between the two departments can occur.
That a case of excess sufficiently gross could arise to justify a proceeding by suit on the part of the State of Texas, to reform a Spanish grant, we do not doubt. (United States v. Hughes, 11 How., 552.) But the question here is not of reform; it is of original nullity.
What was the condition of Morales's title? He applied for a league of land as a colonist; his petition was granted, and a survey ordered. The surveyor made return of his survey to the commissioner, who in effect exercised the granting power in De Leon's colony. The lines of the survey call for other adjoining tracts, and their corners previously made. On the faith of this survey, the commissioner proceeded to extend the title to Morales. It is probable that no actual survey was made on the ground; and hence it happened that the surveyor's certificate stated that more than one-half of the boundary shown on the plat was covered by water, and not subject to grant. Of this matter, the surveyor and the commissioner, as the judge of land distribution, had jurisdiction; it was their duty to act justly between the Government and the grantee. The commissioner acted by extending the title of possession, and thus yested a full title in Morales. No one at that time had any right to complain, if the Government was content; it has so far acquiesced, and younger grantees are bound by that acquiescence.
There is not the slightest evidence that Morales had any knowledge that the statement made by the surveyor in his certificate of survey was untrue; and therefore the grant as to him is not void, and could only be voidable in part, if it could be reformed at all.
3. Morales conveyed to Manso, who was a citizen of Texas, residing in De Leon's colony when resistance to the Central Government of Mexico was first agitated by the inhabitants of Texas.
All Spaniards were ordered to leave the country by the party which eventually proved successful; and Manso, being a Spaniard, left and went to Louisiana; and it is insisted that this forced removal was an abandonment of the country, and a forfeiture of his land, according to the colonization laws of Coahuila and Texas. Manso took no part in the revolutionary movement, quietly left, and resided in Louisiana from the fall of 1834 up to the time when he conveyed to Grayson, in April, 1836. Such was the only proof of his acts, so far as they affect this controversy.
*249 The evidence did not warrant any charge from the court on the ground of abandonment of the country by Manso. The case of Hardy v. De Leon (5 Texas R.) is conclusive on this ground of defence. To hold otherwise, would violate the entire doctrine laid down in the case of McMullin v. Hodge, (5 Texas R.)
There must be some evidence on which a charge to the jury is founded, otherwise it cannot be lawfully given. As there was no evidence from which an abandonment could be found by the jury, an instruction on the subject could only mislead. (Chirac et al. v. Reinecka, 2 Pet., 625.)
In the next place, we are of the opinion that there was no evidence introduced on the trial below which could have warranted the court to give any instruction to the jury destructive of Grayson's title, on the supposition that Manso was an alien enemy at the time of conveying, and therefore had no capacity to convey.
When one nation is at war with another nation, all the subjects or citizens of the one are deemed in hostility to the subjects or citizens of the other; they are personally at war with each other, and have no capacity to contract. Here Manso was a citizen of Coahuila and Texas, when he was forced to leave his country, and continued away, subject to the same coercion, until after independence was declared by Texas, March 2d, 1836. The Constitution of Texas was adopted March 17th, 1836; by the tenth section of which it is provided, that "all persons (Africans, &c., excepted) who were residing in Texas on the day of the declaration of independence shall be considered citizens of the Republic, and entitled to all the privileges of such." Manso conveyed to Grayson in April, afterwards. There was a suspicion (he being a Spaniard) that he sympathized with the federal authorities of Mexico, and might take sides with the enemies of Texas; but this record affords no proof that he did so, up to the time when he conveyed to Grayson; nor is there any proof showing that he had abandoned his domicil in Texas, which he was forced to leave some sixteen months before independence was declared; nor is it of any consequence, whether he did, or did not, become domiciled in Louisiana, if he was not an alien enemy to the Republic of Texas, and to her citizen Grayson, the grantee; as an alien friend can convey his lands situate in a foreign Government; and that the title is defeasible, is nothing to the purpose in this case.
It is again insisted that Manso, after he conveyed to Grayson, removed to Mexico, and that this must be taken as evidence that he was an alien enemy when independence was *250 declared. The Texas courts hold that forcing a party to leave the country should not operate to his prejudice. (Hardy v. De Leon, 5 Tex. R.) And this court held, in the case of McIlvane v. Coxe's lessee, (4 Cra., 216,) that a citizen of New Jersey did not forfeit his citizenship by joining the British army during our revolutionary war, and that his heirs took by descent, although their ancestor continued to reside abroad. Nor did the expression in the deed that Manso was a citizen of Mexico establish alienage, as the State might claim his citizenship, notwithstanding. To this effect is Coxe's case; and which is followed by the doctrine maintained in Ingle v. The Trustees of the Sailors' Snug Harbor. (3 Peters R.)
4. The conveyance from Manso to Grayson is dated April 6, 1836, and was executed before a notary public in Louisiana. It embraced seventeen leagues in all, including the one in dispute. It was a civil-law conveyance, made in a notary's book, and a copy furnished to the grantee, as a second original. This copy was offered in evidence. In December, 1836, the Legislature of Texas enacted, that "the common law of England, as now practiced and understood, shall, in its application to juries and evidence, be followed and practiced by the courts of this Republic." The conveyance had two attesting witnesses to it, besides the signature of the notary. To let in the copy, it was proved by a witness that he had examined the original on file on the notary's book; that the copy was a true one; that the notary before whom the conveyance was executed was dead; that the witness knew his handwriting, which was genuine; that he, the witness, was well acquainted with the handwriting of John Simonds, one of the subscribing witnesses to the act of sale, who was also dead, and that the signature of Simonds was genuine.
The original of the conveyance from Manso to Grayson remained in the archives of the notary in Louisiana, and consequently could not be produced, and the copy was of necessity offered. This is according to the case of Watrous v. McGrew, (16 Tex. R., 512.) We are of opinion that the paper offered was sufficiently proved to be admitted on common-law principles.
The copy from the notary's books was also duly authenticated, according to the act of Congress of 1804, as a record of another State. The Supreme Court of Texas held, in the case of Watrous v. McGrew, that as the sixth article of the Constitution of Texas of November, 1835, creating a provisional Government, had recognized the civil code and code of practice of Louisiana; and as the ordinance of January 22, 1836, (Hart Dig., 321,) had adopted, "in matters of probate the laws and principles in similar cases in the State of Louisiana," the *251 courts of Texas must recognise the Louisiana laws, and the proceedings under them, in cases of conveyances executed by notarial act in Louisiana; and on this ground the copy of the conveyance then before the court was admitted in evidence, being in all its features a copy of a record like the present.
5. The remaining question is, whether the defendants are protected by the act of limitations of three years? They pleaded, specially, that they, and those under whom they claim, have been in adverse possession of the premises sued for under color of title for three years next before the commencement of this suit; and that the plaintiff's cause of action accrued more than three years next before the commencement of said suit.
The fifteenth section of the act of 1841 (Hart. Dig., 729) declares that every suit to recover real estate as against any one in possession under title, or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards.
The defendants had both title and color of title, as required by the act; and they, or some of them, had been in actual possession of their lands more than three years before this suit was commenced.
The younger title, owned and occupied by the defendants, lapped over one side of the grant to Morales, and to this interference the dispute extends. But no one of the defendants had been in actual possession of the disputed part for three years when the suit was brought.
The act of 1841, section 15, requires suit to be instituted within three years "next after the cause of action shall have accrued." And we think it too plain for reasoning or authority to make it plainer, that, until the land of the plaintiff was trespassed upon, this action of trespass, to try title, could not be maintained. Such are the decisions of the elder States on statutes having corresponding provisions. (Trimble v. Smith, 4 Bibb Ky.; Pogue v. McKee, 3 Mar. Ky.; Talbot v. McGavock, 1 Yer. Ten. R., 262.)
We have endeavored carefully to follow the doctrines of the Supreme Court of Texas in this opinion, because we are bound to follow the settled adjudications of that State in cases affecting titles to lands there.
On the effect of excess of quantity in a grant, and on the three years' act of limitations, we had no direct guide, and therefore have expressed our independent views on these questions.
For the reasons here stated, it is ordered that the judgment of the District Court be affirmed.
Mr. Justice DANIEL dissented.
