Ferris v. Coover. listed and valued by the assessor. This is fatal to the deed. The listing and valuation of real estate for the purpose of taxation, is an essential pre-requisite to the validity of all subsequent proceedings. It is from the list made by the assessor, after it has been corrected by the board of equalization, that the auditor prepares the duplicate, which gives to the officer his authority to demand the tax, and to levy and sell the property of the delinquent. If no valuation was placed by the assessor upon the property, none could be placed upon it by the board of equalization. The board may alter the valuation in order to equalize it, but can not place the valuation in the first instance. That is the duty of the assessor. In consequence of the neglect of the assessor, the duplicate would reach the officer without any valuation placed upon the property, and of course no authority would exist in him to levy upon and sell the property. We do not notice the want of a seal to the deed, because its absence has not been alluded to by counsel, and it is probably an omission of the copyist. Judgment affirmed. On an application for an extension of time to file a petition for a re-hearing, FIELD, J., delivered the opinion of the CourtBALDWIN, J., Concurring. This is an application for an extension of the time to file a petition for a re-hearing. The application is based upon the affidavit of Mr. Weeks, that he has just been retained as counsel in the cases, and is unable to present the petition within the time prescribed by the rules of the Court. There is nothing in the reason assigned which entitles the defendants to any extension. These cases were submitted more than a year since, and elaborate written arguments were subsequently filed by the original counsel of the respective parties. They have been the subject of long and mature consideration by the Court. The questions involved in them are not new; they have been the subject of discussion with the profession for the last seven years; they have attracted the attention of the ablest jurists of the State, and been placed before the Court, in every possible view, and it would be no disparagement to the learning and ability of the counsel to say that we think it highly improbable that he could throw sufficient new light upon the questions to induce us to change our deliberate judgment. The counsel of the plaintiffs, and one of the counsel of the defendants, have repeatedly called the attention of the Court to the cases, and invoked a decision. The cases were placed on the calendar for the present term, like all other cases previously submitted, to be argued only in the event they were not decided before they were reached, and, like a great number similarly situ Ferris v. Coover. ated, they were so decided. No oral arguments could have been more elaborate or perfect than the written arguments on file. Application denied. [NOTE A.] TRANSLATION OF THE DECREE OF THE MEXICAN CONGRESS, of auGUST 18TH, 1824, RESPECTING COLONIZATION. [The Translation is taken from White's New Recopilacion, Vol. I, p. 601.] The Supreme Executive Power, provisionally appointed by the General Sovereign Constituent Congress, to all who shall see and understand these presents: Know ye, that the said Congress has decreed as follows: ARTICLE 1. The Mexican nation offers to foreigners, who come to establish themselves within its territory, security for their persons and property; provided, they subject themselves to the laws of the country. ART. 2. This law comprehends those lands of the nation, not the property of individuals, corporations, or towns, which can be colonized. ART. 3. For this purpose, the Legislatures of all the States will, as soon as possible, form colonization laws, or regulations, for their respective States, conforming themselves, in all things, to the constitutional act, general constitution, and the regulations established in this law. ART. 4. There can not be colonized any lands comprehended within twenty leagues of the limits of any foreign nation, nor within ten leagues of the coasts, without the previous approbation of the General Supreme Executive power. ART. 5. If, for the defence and security of the nation, the Federal Government should deem it necessary to use any portion of these lands, for the construction of warehouses, arsenals, or other public edifices, they can do so, with the approbation of the General Congress, or, in its recess, of the Council of Government. ART. 6. Until after four years from the publication of this law, there shall not be imposed any tax whatever, on the entrance of foreigners, who come to establish themselves for the first time in the nation. ART. 7. Until after the year 1840, the General Congress shall not prohibit the entrance of any foreigner, as a colonist, unless imperious circumstances should require it, with respect to the individuals of a particular nation. ART. 8. The Government, without prejudicing the objects of this law, shall take such precautionary measures as it may deem expedient, for the security of the Confederation, as respects the foreigners who come to colonize. ART. 9. A preference shall be given, in the distribution of lands, to Mexican citizens, and no other distinction shall be made in regard to them, except that which is founded on individual merit, or services rendered the country, or, under equal circumstances, a residence in the place where the lands to be distributed are situated. ART. 10. The military who, in virtue of the offer made on the 27th March, 1821, have a right to lands, shall be attended to by the States, in conformity with the diplomas which are issued to that effect, by the Supreme Executive Power. ART. 11. If, in virtue of the decree alluded to in the last Article, and taking into view the probabilites of life, the Supreme Executive Power should deem it expedient to alienate any portion of land, in favor of any officer, whether civil or military, of the Federation, it can do so from the vacant lands of the Territories. ART. 12. It shall not be permitted to unite, in the same hands, with the right of property, more than one league square of land, suitable for irrigation, four square leagues in superficies, of arable land, without the facilities of irrigation, and six square leagues in superficies, of grazing land. Ferris v. Coover. ART. 13. The new colonists shall not transfer their property in mortmain (manus muertos.) ART. 14. This law guaranties the contracts which the empressarios make with the families which they bring, at their own expense, provided they are not contrary to the laws. ART. 15. No person who, by virtue of this law, acquires a title to lands, shall hold them, if he is domiciliated out of the limits of the Republic. ART. 16. The Government, in conformity with the provisions established in this law, will proceed to colonize the territories of the Republic. MONTEREY, 18th August, 1824. CAYETANO IBARRA, President, PEDRO DE AHUMADA, Member and Secretary, Therefore, we command it to be printed, circulated, and obeyed. NICHOLAS BRAVO, Members of the Supreme Executive Power. TRANSLATION OF THE GENERAL RULES AND REGULATIONS FOR THE COLONIZATION OF TERRITORIES OF THE REPUBLIC OF MEXICO, NOVEMBER 21, 1828. [The translation is taken from Rockwell's Spanish and Mexican Law in relation to Mines and Titles to Real Estate, Vol. I, p. 453.] It being stipulated, in the sixteenth Article of the General Law of Colonization, of the 18th of August, 1824, that the Government, in conformity with the principles established in said law, shall proceed to the colonization of the territories of the Republic; and it being very desirable, in order to give to said Article the most punctual and exact fulfillment, to dictate some general rules for facilitating its execution, in such cases as may occur, his Excellency has seen fit to determine on the following Articles: 1st. The Governors (Gefes Politicos) of the territories are authorized (in compliance with the law of the General Congress, of the 18th of August, 1824, and under the conditions hereafter specified,) to grant vacant lands, in their respective territories, to such contractors, (empressarios,) families, or private persons, whether Mexicans or foreigners, who may ask for them, for the purpose of cultivating and inhabiting them. 2d. Every person soliciting lands, whether he be an empressario, head of a family, or private person, shall address to the Governor of the respective territory a petition, expressing his name, country, profession, the number, description, religion, and other circumstances of the families, or persons, with whom he wishes to colonize, describing, as distinctly as possible, by means of a map, the land asked for. 3d. The Governor shall proceed, immediately, to obtain the necessary information, whether the petition embraces the requisite conditions, required by said law of the 18th of August, both as regards the land and the candidate, in order that the petitioner may at once be attended to; or, if it be preferred, the respective municipal authority may be consulted, whether there be any objection to making the grant or not. 4th. This being done, the Governor will accede, or not, to such petition, in exact conformity to the laws on the subject, and especially to the before-mentioned one of the 18th of August, 1824. 5th. The grants made to families, or private persons, shall not be held to be definitively valid without the previous consent of the Territorial Deputation, to which end the respective documents (expedientes) shall be forwarded to it. 6th. When the Governor shall not obtain the approbation of the Territorial Deputation, he shall report to the Supreme Government, forwarding the necessary documents, for its decision. 7th. The grants made to empressarios, for them to colonize with many families, shall Ferris v. Coover. not be held to be definitively valid, until the approval of the Supreme Government be obtained; to which the necessary documents must be forwarded, along with the report of the Territorial Deputation. 8th. The definitive grant asked for being made, a document, signed by the Governor, shall be given, to serve as a title, to the party interested, wherein it must be stated that said grant is made in exact conformity with the provisions of the laws, in virtue whereof possession shall be given. 9th. The necessary record shall be kept, in a book destined for the purpose, of all the pretitions presented and grants made, with the maps of the lands granted, and the circumstantial report shall be forwarded, quarterly, to the Supreme Government. 10th. No capitulization shall be admitted for a new town, except the capitulizator bind himself to present, as colonists, twelve families, at least. 11th. The Governor shall designate to the new colonist a proportionate time, within which he shall be bound to cultivate, or occupy, the land, on the terms, and with the number of persons, or families, which he may have capitulized for, it being understood that, if he does not comply, the grant of the land shall remain void; nevertheless, the Governor may revalidate it, in proportion to the part which the party may have fulfilled. 12th. Every new colonist, after having cultivated or occupied the land, agreeable to his capitulization, will take care to prove the same, before the municipal authority, in order that, the necessary record being made, he may consolidate and secure his right of ownership, so that he may dispose freely thereof. 13th. The reunion of many families into one town, shall follow, in its formation, interior government, and policy, the rules established by the existing laws for the other towns of the Republic, special care being taken that the new ones are built with all possible regularity. 14th. The minimum of irrigable land to be given to one person, for colonization, shall be 200 varas square, the minimum of land called de temporal shall be 800 varas square, and the minimum for breeding cattle (de obsevadeso) shall be 1,200 varas square. 15th. The land given for a house-lot shall be 100 varas square. 16th. The spaces which may remain between the colonized lands may be distributed among the adjoining proprietors, who shall have cultivated theirs with the most application, and have not received the whole extent of land allowed by the law, or to the children of said proprietors, who may ask for them, to combine the possessions of their families; but on this subject, particular attention must be paid to the morality and industry of the parties. 17th. In those territories where there are missions, the lands occupied by them can not be colonized at present, nor until it be determined whether they are to be considered as the property of the establishments of the neophytes, catechumens, and Mexican colonists. [NOTE B.] "By the sixteenth Article of the law of the 18th of August, 1824, the whole subject of colonization, in the territories of the republic, was committed to the Supreme Government. The regulation of the 21st of November, 1828, was made for the purpose of carrying out that provision of the law, and constitutes the source from which the Mexican authorities in California derive this power to make grants of lands. The grant under consideration was clearly made by virtue of this authority, and, in order to ascertain its true nature and extent, it will be necessary to examine it with reference to the provisions contained in the regulation. "In making this examination we are met, at the very threshhold, by a marked distinction between this regulation and the laws of Coahuila and Texas, before referred to. By these laws, it will be recollected that the empressario received no title to any lands, until the terms of his contract had been complied with, and then only to that portion which he was to receive as a compensation for introducing the colonists, and the settlers themselves received the title for their respective parcels directly from the government, through the agency of a commissioner, appointed for that purpose. On the other hand, Ferris v. Coover. the regulation of 1828 contemplates the issuing of the grant, in the first instance, directly to the empressario. Its language is, that the political chiefs of the territories are authorized to grant vacant lands in their respective territories, to empressarios, families, or individuals, making no distinction, either in the character of the grants, or the several classes of persons to which they might be made. The second, third, and fourth Articles, prescribing the preliminary steps and modes of proceeding, both on the part of the petitioner and the Governor, apply equally to the several classes referred to in the first. The fifth and seventh make a distinction between grants to individuals and families, and those made to empressarios. The fifth provides that grants made to individuals and families shall not be definitively valid, without the previous consent of the Territorial Deputation, and the seventh, that grants made to empressarios, for them to colonize with many families, shall not be held definitively valid, until the approval of the Supreme Government be obtained. "The language of this last Article indicates clearly the person in whom the title to lands granted for the purpose of colonization was to vest, as well as the condition on which the grant was made. The tenth Article prescribes the minimum number of famlies for the settlement of which a colonization grant could issue. The eleventh requires the Governor to designate to the new colonist a proportionate time within which he shall be bound to cultivate and occupy the lands, on the terms, and with the number of persons, or families, which he may have contracted for, and imposes the penalty of a forfeiture, or avoidance of the grant, for a failure on the part of the grantee to comply with its terms; reserving, nevertheless, the power in the Governor to revalidate it, in proportion to the part which the party may have fulfilled. The twelfth Article directs the new colonist, after having cultivated or occupied the land, agreeably to his contract, (capitulacion,) to prove the same before the municipal authority, in order that he may consolidate and secure this right of ownership, so that he may dispose freely thereof. The Articles above enumerated embrace all the material provisions of the regulation having reference to grants made to empressarios, for the purpose of colonization, and, from them, we come to the following conclusions: "First-That the Political Chiefs, or Governors, of the territories of Mexico, were authorized to make grants of lands directly to empressarios, or contractors, for colonization, in the same manner, and with the same legal effect, as private grants to individuals or families, with the exception that the former required the approval of the Supreme Government, to give them definitive validity, while the latter only required the consent of the Territorial Deputation for that purpose. "Second-That the effect of such grant, when ratified by the Supreme Government, was to vest the legal title to the land in the grantee, or empressario, in consideration of which he was bound, within a specified time, to settle on the lands a stipulated number of families, which should in no case be less than twelve, thus constituting it a grant with conditions subsequent. "Third-That the grant so made was subject to forfeiture, for the failure of the grantee to comply with the conditions, leaving it, however, discretionary with the Governor to remit the forfeiture, and revalidate the grant, to the extent within which the party may have fulfilled them, or, in other words, in proportion to the number of families he may have introduced and settled on the land. "Fourth-That the grantee, having complied with the condition of his grant, and proved the same before the proper municipal authority, and due record of the fact being made, the grant was discharged of the condition, and became single, vesting the title absolutely in the grantee. "A careful analysis of the language and terms of the regulations fully sustains the correctness of these conclusions. The first Article confers upon the Political Chief the power to make grants to empressarios, as fully, and in the same terms, as to the other parties described in it. The seventh provides for the approval of the Supreme Government, precisely as the fifth requires the consent of the Territorial Deputation, in the other cases. It moreover declares the object for which such grants were to be made, namely, to colonize with many families, thus making the settlement of the land a consideration for the grant, to be discharged in futuro. "The eleventh Article prescribes the penalty for the failure of the grantee to comply with the conditions of the grant, and clearly treats them as conditions subsequent, the non-performance of which involved the avoidance or forfeiture of the rights which had vested under it. It will thus be seen that the regulation makes no distinction in the legal effect of the several classes of grants provided for by it. The only difference is in the purpose for which it is made, and the consequent variance in the character of the |