SULLIVAN

v.

TEXAS

Mr. Justice Brewer,

after making the foregoing statement, delivered the opinion of the court.

By the action of the Supreme Court of the State the judgment of the Court of Civil Appeals became the judgment of the highest court in the State to which the case could be taken, and hence the writ of error properly ran to that court. The constitutional question, although not raised theretofore, was distinctly presented in the petition to the Court -of Civil Appeals for a rehearing, was considered by that court and decided adversely to the plaintiff in error. This court, therefore, has -jurisdiction. Mallett v. North Carolina, 181 U. S. 589, 592; Leigh v. Green, 193 U. S. 79; French v. Taylor, 199 U. S. 274.

Coming to the merits, it is obvious that the act of 1852 was simply a confirmation of grants made by the Mexican States. There is nothing in it which suggests the thought of new grants or of addition to old ones. The first section declares that the State “relinquishes all her right and interest in the following-described lands to the original grantees thereof,” and names the amount-of land included in this grant so relinquished, six and one-half leagues. The second section makes it the duty of claimants, to have surveys made of their existing grants. The third section makes provision in-case of the loss of the “original title papers of lands claimed by this act,” while § 5 speaks of “the confirmation herein extended to the lands mentioned in this act.”

But it is contended that there was an existing Mexican land grant binding upon the State of Texas as the successor of the former government; that the act of 1852 not only confirmed the grant, but also by the second section provided for a settlement of its boundaries through an official survey; that this was a proposition made by the State to the claimant of the grant which upon acceptance, as evidenced by the survey at the request of the owner and the return.of the field notes to the'land office, ripened into a valid contract; that when the survejf was made and the field notes returned, as required by law, it became conclusive evidence against both the State and the claimant that the land surveyed was that granted by the Mexican State and confirmed by the legislature of Texas. This argument makes the survey the pivotal fact upon which the question of contract turns. Of course, whether there ivas or was not a contract is a question which, in a case like the present, this court must determine for itself. Jefferson Branch Bank v. Skelly, 1 Black, 436, 443; McCullough v. Virginia, 172 U. S. 102, 109; H. & T. C. Railway v. Texas, 177 U. S. 66, 77; St. Paul Gas Light Company v. St. Paul, 181 U. S. 142, 147; Muhlker v. Harlem, Railroad Company, 197 U. S. 544, 570.

It will be perceived that § 2 does not name the individual to act for the State, but* only designat^eertain officials, any one of whom-may make the. survey, and imposes a duty upon the claimant of causing the survey to be made. It does not prescribe the time within which the survey must be made. In fact, it was not made until seven years after the passage of the act, and the field notes were not filed until ten years after that. The purpose of the act was to enable the claimant to acquire a patent as better evidence of title, with a more accurate description of boundaries. The surveyor is not named as an agent of the State. On the contrary, an official act, that of survey, was authorized to be made at the instance of the claimant, but a mere surveyor is not by virtue of his office empowered to change boundaries. Those were given in the original Mexican grant, and his function was.simply to resurvey, making the description more definite and certain. It could not have been within the contemplation. of the legislature that this surveyor, picked out-by the claimant, should have power to bind the State, by the mere matter of survey, to a' grant nearly double the size of that which it confirmed by this statute of relinquishment. It must be borne in mind that the original grant was not a. float—that is, a grant of so many acres', to be located inside of a larger tract, in which the surveyor might have a discretion in selecting the particular tract— but it was a grant by metes and bounds, and the sole function of the surveyor was ministerial, to locate the tract and more fully describe those metes and bounds.

In all these.proceedings the substantial elements of a contract are lacking. The State of Texas, succeeding to the sovereignty of the former government, recognized all that might, under any circumstances, be considered its international obligation and confirmed the title which had been made. It made no grant of additional land. It simply relinquished all claims to that which had been granted by the former sovereign -and confirmed the title made by that grant. It received no consideration. As the description in the original survey was defective, it provided means for perfecting that description and authorized a patent, which is the highest evidence of title. On the other hand, the grantee, holding a grant from the.State of Tamaulipas, received from the State of Texas, no grant or promise of additional land, but simply a declaration of its willingness to recognize and confirm the Mexican grant. He paid nothing to the State, but was only accorded by it the means of making his title definite and certain and the boundaries of his grant beyond question. In short, it was simply a proceeding established by the law of the State for making clear and certain the boundaries of grants which the State was willing to recognize, and in that proceeding a certain official of the State was charged with the ministerial duty of making a survey. He was given no authority to enlarge or diminish the grant, but only to ascertain what the. real boundaries were. Further, the State has never given a patent, although this suit was not commenced for fifty years after the act of relinquishment, forty-three years after the survey and thirty-three years after the filing of the field notes in the state land office.

The decision of the Court of Civil Appeals was right, and its judgment is

Affirmed.