Horton v. Brown , 2 Tex. 79 ( 1847 )

After stating the facts of this case, the opinion of the court was delivered by

Thoicas J. JeNNINgs, Esq.,

special associate justice, as follows:

After this cause was argued in a manner manifesting great ability and research, and submitted to us for consideration, the opinion of the court was delivered by the chief justice in the case of The Heirs of Kinchen Holliman v. Robert Peebles, 1 Tex. 673. As we fully concur in the reasoning and conclusion of the court in that case, that opinion turning, as it does, upon facts which are of like import in both cases, but which are even more fully exhibited and definitely ascertained in the record before 11s than in that case, is decisive of this cause. The doctrine advanced and fully sustained by argument and authority in that opinion, when applied to this case,, decides that the defendant, by not in fact fixing his domicile-in Texas, and by admitting that he never intended to do so; oxv if he ever had his domicile in this country, by transferring it to a foreign country, with a declared and admitted intention of never returning; ol’, in other words, bj abandoning the country, would have forfeited his title under the colonization law under which he claimed, and the land in controversy would haveim-mediately reverted to the government, even if the defendant had, previously to such abandonment, attained the status, by acquiring the qualifications, of a citizen, and performed the condition of cultivation imposed by the law of his grant.

2. And that to entitle another to a regrant of land thus forfeited and reannexed to the public domain, under the land laws-of Ooahuila and Texas, as interpreted by the rules prescribed by the civil law of Mexico and Spain, no inquest of office, or other judicial proceeding or sentence, was necessary.

Tested by these rules the defendant, upon the state of facts-presented by the record, had no valid title of any grade to the land in controversy, when the petitioner applied for a patent, for the same, and the claim of the defendant constituted no-legal obstacle to the success of the petitioner in that application. "We are, therefore, of opinion that the judgment of the-district court ought to be reversed; but we are asked to go-further and give such judgment as the district court ought to have given, upon the facts and admissions presented by the-record.

The authority of Mr.'Bunton to represent the defendant in the conduct of this cause appears to have been fully recognized in the court below, and has not been called in question here: The fact that a general demurrer, to the petition had been filed by him shows that he was not unmindful of the difference, in legal effect, between the implied admission for the sake of argument ” of the truth of facts, which that plea imports, and the express and positive admission of “ the facts alleged in said plaintiff’s petition,” stated in the entry of the judgment of the court to have been made by him in the name of the defendant. It may be urged that the statement of this admission and what immediately follows it is but an awkward entry of the action of the court upon the demurrer. This may possibly be so, but we can only know the grounds upon which the court proceeded in rendering its judgment from the language of that part of the record which purports to state them. And that language, in this instance, we think, imports that this cause was submitted to the court for decision upon the admitted truth of the facts stated in the petition. And this opinion is fortified by a stipulation in an agreement signed by the counsel of both parties (contained in the record) “ that the pleadings in the case shall be sent up to the supreme court for adjudication and decision, without any other statement of facts accompanying the record.” Now there was no evidence offered in the case, as the manner of proceeding indicated by the entire record shows, and what can the phrase, “ other statement of facts,” be intended to have its contrasting reference to, if not to the ■“ statement of facts ” contained in the petition (a part of the pleadings), and verified by the defendant’s admission? Wherefore, it is ordered, adjudged and decreed that a judgment of the district court be reversed, and that the mandamus issue in accordance with the prayer of the petitioner, on payment of all costs by appellant.