session of Jose Lerma during his1ife, and since his death in the posses-sion of the said plaintiff, Felix Lerma; and that the confirmation of the grant to Jose Lerma and the protocol are among the archives of Paso del Norte, Mexico, and have been since the year 1828, as well as the protocol since 1823, or evidence of said grant, as provided under the Span.. ish and Mexican law. (3) That the land contained in the grant to said Jose Lerma was within the jurisdiction of Paso del Norte, and .in the territory ceded by Mexico to the United States in the year 1848 by the treaty of Guadalupe Hidalgo. (4) That the plaintiff's title was proven up and filed for record in the clerk's office of El Paso county, Tex., in which the grant of land October 4, and recordec1 on October 9, 1887. (5) That the survey of the lines of the grant, as per survey on file, is correct. That the "Sierra Blanca," "Eagle Peak," and "Hot Springs" are natural calls, also stone monuments; these three natural calls being corners, and known notoriously as such corners. That the beginning corner On the Rio Grande (formerly Rio Bravo del Norte) is opposite to Ojo del Toros (Bull Springs) and Sierra de los Todos Santos, natural points and places well known, the beginning corner being opposite thereto. (6) That Jose Lerma cultivated a part of the grant ante. rior to the execution thereof, and used the land for his cattle, horses, sheep, and goats, and that his possession was continuous until 1847 , at the time General Donophan's command from Missouri passed into Mexico at Paso del Norte, when Jose Lerma moved into the now state of Chihuahua, and remained, the land being vacant until 1849 or 1850. That in one of these years the plaintiff put tenants on the same, and used the land for pasturage for his stock. That when the United States troops abandoned Ft. Quitman, in 1861, he again ·left the land, but left stock on it. That since the abandonment of the United ·States troops, in 1861, .the Indians were hostile, and constantly at war with the settlers, and until within the last four or five years. (7) That Jose Lerma. died in 1852, and that Felix Lerma is his sole heir at law, and the plaintiff herein, and that he resides in and is a citizen of Mexico. That the defendant filed his location for pre-emption on the 15th day of December, A. D. 1887, and has possesl'ion of the same. That he has complied with the laws regulating pre-emptions in this state toper-feet title thereto,and that his claim is embraced within the boundaries of the grant to Jose Lerma." It is proper hereulso to state that tbeoriginal grant to plaintiff's ancestor, Jose Lerma, said to contain 50 leagues of land, was conceded by counsel for defendant, on the ment, to bea valid grant as originally extended by the Mexican authorities.
OONCLUSIONS OF LAW.
eredlto the iJilteresfedrparty:as his,av,idence,dftitle.·, )'llhe was issued in 1823,ttnd certified ,copy 'made ,byPila.r, ,del Laso, second alclildeJ()f Paso ,del Norte, in 1852. and delivered, to, the plaintiff,' who. at Iawdfthe ,original grautee JoserLerma. The, title ex. would seem to, be ratbera-second: or subsequent copy of the origirial, 'buts determmation of this question; and to be given a seOOnd copy,becOmes unimportant in view of thlUl,greed statement of faCtsf' See; Escriehe, Title Verbo-Instrumento, 891.'11II.;, Houstoo v. Blythe, 60 Tex. 513,514; vo Preston, 65 Tex. 457-459; Btate':v..'Ca'l'dinas, 47'Tex. 290, 291;, Pa8chal v. 7,Tex. 360-363; Herndonv. Casiano, Id.332, 333; Wor&,v. Tex. 268, 270. ,31111n view of'the concession made by defendant's counsel and the miBsidns of ,defendant;lllsembodied in the first, Sedbnd,. third, and fifth . findings 'of: (act, tHe grant to Jose Lerma" for the pUI1poee of this suit, and as'betlteen the partiesthereto,will be assumed to, ba,a ,valid,grant, as originally, extended and oonfirmedby the Mexican authorities. As to presumptions which may be indulged touching the regularity and ity of the acts of officials under a former, reference is made to the following authorities: Gonutle8v. Ross, 120 U. S. 619, 622, 7 Sup. Ct. Rep. 705; Johns v. Schutz t 47 Tu.,582; Clark v. Hills, 67 Tex. 144, 145 t 2'S. ,W. Rep. 3.56; Jones v. MuiBbach, 26 Tex. 237; Jones v. G(Lrza, 11 Tex. 206....209; Jenk:i.nsv. Chambers, 9 Tex. 235; Hancock v. McKin"my;: ,7 Tex. 442, 443; Holliman v. Peebles, 1 Te:lt.698..,.702; Uhl v. Musquez, Tex.' Unrep.Cas. 655, 656 ·. 4. The registratiollin the land-office of the Spanish document styled "te8timonw" did 'not constitute the paper an archive of said office. Paschal 355..,.360;!Hel""(l.don v. Casiano,ld. 333, 334; Rev. St. Tex. arts" 57-59; Hatchettv. Ganner, 30 .Tex. 110,; Dikes v. Miller, 11 101, The constitution of 1876 (article, 13, § 4) prohibits the deposit .of plaintiff's claim of title in the land-office, and it further provides that'cluims of that class shall not be "reCorded in this state, or delineaMdon .the map8'j or. :usedas evidence in any of the courts of this sw,te, an'd the same are stale claims; but this shall notatfectsuch rights 'or presiimptions as arise from actlilalpossessioil." Under this provision "Of the: cdnstitu.,tion thedepoait of the paper in· the ·land-office conferred no additionalmights upon the plaintiff. It neither enhanced ishedthe \lalueofhis ! The act of depositing it there was·simply a nullity, lUI well las its registration, in the records of: EI Paso county; and a certified copy,of such title Bodeposited in'theland-office, or registered in"the recoidsof admissible in 'evidenoe. See foregoing authorities. 5. Plaintiff is not in actual possession of the land embraced in the grant:, .siQce 1861;; ,and it is a matter of his actual p,()§ls,ession"lluchas the.law Cbute:Qlplales, did not :1849 or 181)0. The fact .thatplaintiff orhiaan. hadcattle over th l.grant, 50 leagues in extQnt, afford, DO he. owned or. it. Ar(/U'r