Kilpatrick v. Sisneros , 23 Tex. 113 ( 1859 )

Wheeler, C. J.

The special defences pleaded and relied on are: 1st, That the plaintiffs are aliens, and incapable of maintaining this action; and that they forfeited their title by leaving the republic and settling in Tamaulipas, in 1836 and 1837, and the land became vacant. 2d, That Martin De Leon had no authority to colonize within the coast leagues, and the grant being for land within the coast border, was void. 3d, The statute of limitations of three, five, and ten years.'

First, as respects the plea of alienage and abandonment of the country. The plaintiffs were residing in Texas at the date of the declaration of independence, (the 2d of March, 1836,) but afterwards went west of the Rio Grande, some of them in 1836, and others in 1837, and did not return to the state until 1847 or 1848. Did they thereby become, and are they to be deemed aliens to this government ? We think not. They may have forfeited their right of citizenship and their title to their lands, but until the forfeiture has been ascertained and adjudged by some proceeding, to be authorized by law for that purpose, their civil status is not changed, nor their rights of property divested. This is the doctrine which has been uniformly maintained by the decisions of this court upon this subject, and it is believed to be in accordance with the settled doctrine of other courts in similar cases. (Hardy v. De Leon, 5 Texas Rep. 211; McIlvaine v. Coxe’s Lessee, 4 Crunch, Rep. 209; Swift v. Herrera, 9 Texas Rep. 263; Jones v. Montes, 15 Texas Rep. 351; Jones v. McMasters, 20 Howard, Rep. 8.)

In the case of Hardy v. De Leon, (5 Texas Rep. 211,) this court decided, that the constitution of the Republic, (General Prov. § 10,) fixed the civil status of all persons residing here at the date of the declaration of independence, by declaring that “All persons (Africans, and the descendants of Africans and Indians 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.” This accords with the doctrine maintained by the Supreme Court of the United States. Thus, in McIlvaine v. Coxe’s Lessee, (4 Cranch, 209,) where a person, born in New Jersey before the year 1775, remained there until 1777, and then joined the British army, and ever after adhered to the British, claiming to be a British subject, and demanding and receiving compensation from that government for his loyalty and sacrifices as a refugee—because he was residing in New Jersey on the 4th of October, 1776, when the state had declared herself a sovereign state, and the laws declared all persons residing there, at the time, citizens, and required their allegiance—the court held that, notwithstanding his subsequent conduct, in adhering to the enemy, in violation of the laws, which denounced forfeitures against him, he was not an alien, but must be deemed a citizen of New Jersey, and as such, entitled to take by descent, lands in that state. Residing in the state when her sovereignty was declared, and remaining there until after she had passed laws by which he was declared a member of, and in allegiance to the new government, his civil status was fixed by the law of the state, and his citizenship was not affected by his subsequent conduct. His title to real estate remained vested in him, until the state, by its laws, saw proper to declare it forfeited for his political offences. The laws of the state governments, were the laws of sovereign states; and no doubt was entertained, that the person whose status was in question, lost his right of election by remaining there until after the 4th of October, 1776; that he thereby became a member of the new society, entitled to the protection of its government, and owing to it his allegiance.

This decision was expressly approved by the same court in the case of Inglis v. The Sailor’s Snug Harbor, 3 Peters, Rep. 99 ; and more recently in White v. Burnley, 20 How.. Rep. 250. In the former it was said: “ The court in that case recognized fully the right of election, but considered that Mr. Coxe had lost that right by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to, the new government. (Id. 124.) Because he was residing there, the law of the state fixed his status, by declaring who were to be members of the new government ; and being thus fixed, it remained unchanged in the contemplation of her laws, until the state should see proper to declare it changed. (Terrett v. Taylor, 9 Cranch, 50; Kelly v. Harrison, 2 Johns. Ca. 29, and note; Jackson v. Lunn, 3 Id. 109 ; and see Ainslee v. Martin, 9 Mass. 454.)

So, the constitution of the Republic, fixed the status of those who were residing here at the date of the declaration of independence. They were declared to be citizens. It is to be observed, that there was no declaratory act of the United States thus determining the right of election; and hence the American rule is, to refer to the date of our independence, as the era at which the American antenati ceased to be subjects of Great Britain; while the English rule is, to take the date of the treaty of peace of 1783. Her doctrine is, that by the treaty of peace, Great Britain,and the United States became respectively entitled, as against each other, to the allegiance of all persons who were at the time adhering to the governments respectively; and that those persons became aliens to the government to which they did not adhere. This is held to be the meaning of the treaty of 1783. (2 Kent, 59, 60, 61). But in Coxe’s case, the law of New Jersey determined this right of election, and fixed his citizenship, as to that state, before the treaty; and he was consequently a citizen of New Jersey by force of her laws. So did the constitution of the Republic fix the status of the plaintiffs in this case, by declaring them citizens.

The constitution also declared what should work a forfeiture of citizenship, and the title to lands, thus: “All persons who shall leave the country for the purpose of evading a participation in the present struggle, or shall refuse to participate in it, or shall give aid or assistance to the present enemy, shall forfeit all rights of citizenship, and such lands as they may hold in the Republic.” (Ib. sec. 8.) The terms of the provision leave no room to doubt, that the denunciation of forfeiture, was directed against those who should adhere to the Mexican cause, in the then struggle for independence; but, until the forfeiture was incurred and adjudged, all who were residing here, at the date of the declaration of independence, were, in the language of the constitution, to “be considered citizens of the Republic, and entitled to all the privileges of such.” Adhering to the cause of Mexico, and going there to reside, did not, ipso facto, and without any action taken to declare the forfeiture by the government, make them aliens, or vacate their titles, and restore their land to the mass of vacant domain. This is the conclusion to which the established general principles of the law upon this subject, inevitably lead. It is the sound and prevailing doctrine in other courts; and it is the doctrine which the decisions of this court, have uniformly maintained. And this disposes of the questions of alienage and forfeiture, in this case.

But great reliance seems to be placed upon the defence of abandonment of the country, as it is called, by the plaintiffs; and it may be thought that this question deserves a distinct consideration. It is insisted, that this case is within the principle of the case of Holliman v. Peebles, 1 Texas Rep. 673. The defence, as presented by the original and amended answer, is, that the plaintiffs “broke the condition of their grant or title, by abandoning the country in the year 1836, and settling in Tamaulipas, one of the Mexican United States.” “ Estevan and Eliza, in the year 1836 ; Rosalia and Maria, in the year 1837, during the struggle for the independence of Texas, went on the other side of the Rio Grande, into the government of Mexico, and remained in the said government of Mexico, until 1848, by which they elected to be citizens of Mexico, and aliens to Texas, and by which leaving, and aiding the enemy, they forfeited all right of citizenship in the republic of Texas; and that the said Sisneros, plaintiffs in the above entitled cause, have not since been naturalized, according to the laws of the country, and are now aliens,” &c. This, it will be seen, is substantially the same defence, in so far as concerns this question, which was pleaded in the case of Swift v. Herrera, 9 Texas Rep. 263. On motion, the plea was stricken out by the court below, as presenting no defence to the action, and this court affirmed the judgment.

In Paul v. Perez, 7 Texas Rep. 338, the title of the defendant was assailed, on the ground of abandonment of the country; and the case of Holliman v. Peebles was cited and relied on as an authority for holding that the land had become vacant when the plaintiff obtained his survey and patent. It was admitted that the defendant left in 1836, and resided in the town of Rio Grande, on the west side of the Rio Grande River, from 1836, until his return in 1847. The District Court sustained the title of the defendant, and gave judgment in his favor, notwithstanding the plaintiff'had, in the meantime, obtained a patent for the land; and this court affirmed the judgment. The question was distinctly proposed and considered by the court, whether the defendant’s right had been so forfeited as to re-annex the land to the public domain; and it was decided that it had not. It is plainly to be seen from this case, though imperfectly reported, that if the having removed from Texas into Mexico, and having taken up a residence there in 1836, would have vacated the title on the doctrine of Holliman v. Peebles, this case must have been decided differently.

So in Bissell v. Haynes, 9 Texas Rep. 556, the plaintiff averred that Sanches, the grantee of the title under which the defendants claimed, abandoned the country in 1836, and went beyond the Rio Grande with the enemy, where he died ; other proof was, that he left Texas in 1835 or 1836, and went to Metamoras with the Mexicans, when they retreated from Texas; and it did not appear that he ever returned. The District Court sustained the defendants’ title, and this court affirmed the judgment.

Again, in the case of Jones v. Montes, 15 Texas Rep. 351, the same ground was relied on as vacating the title of Montes. The ease had been fully argued by able counsel, and had been held under advisement for several terms, on account of another question involved in its decision, on which the court had not formed a decisive opinion. In disposing of the case, Judge Lipscomb said: “We have regarded every point presented to our consideration in this ease, as settled by previous decisions of this court, excepting the single one, that the title extended to Montes does not appear to be upon paper of the proper stamp.” And after disposing of that question, he proceeds briefly to notice the present ground of objection to the title, thus: “It is said that Montes has lost his right of citizenship, by going off to Mexico at the time the Mexicans, under General Wool, retreated. * * * In this case, it is not pretended, but that Montes was a citizen at the date of the declaration of independence; and all the right he then had to the land in controversy was secured to him; and if he left under circumstances that, in the opinion of this court ‘would forfeit his citizenship, the facts by which such onerous penalties were incurred, would have to be tried by a due course of law.” And after quoting from the constitution of the Republic, and distinguishing the ease from that of Casanovas’ administratrix, the judge concludes, by saying that, in that suit, Montes “was defending his rights to property acquired before the declaration of independence; and as he acquired citizenship under the government of Texas, he had a right to its enjoyment, until deprived of it by due course of law.”

These references will suffice to show, that it has been settled by repeated decisions of this court, that removing from the Republic of Texas into Mexico did not, ipso facto, vacate the title of the owner to his lands, acquired under.the colonization laws.

There is no more firmly settled or universally approved principle of law, than that a revolution works no change in previously vested rights of property. Upon the division of an empire, the rights of private property remain precisely in the same condition as before, unaffected by the political division of the empire; except in so far as the new political society may see proper to declare and effect a change, by a direct exercise of sovereign power. Revolution in itself works no change. Property is held by the same right, and upon precisely the same terms and conditions, under the new as under the former government. The rights of the owner are neither enlarged nor diminished by the change of government.

In Calvin’s case, 7 Co. 1, 27, it was resolved by the decision of all the judges, that if the kingdom should be divided, and governed by different kings, “ yet all those who were born under one natural obedience while the realms were united, would remain natural born subjects, and not become aliens by such matter ex post facto,” and that the division of an empire worked no forfeiture of previously vested rights of property. The doctrine is said to have been laid down at a much earlier period by Bracton ; and in Apthorp v. Backus, Kirby’s Rep. 413, it received the assent of the judges, who say that “ it would be against right, that a division of a state or kingdom should work a forfeiture of property previously acquired under its laws.” This is the acknowledged doctrine of the American courts. In Den v. Brown, 2 Halst. 337, the court say: “ The obvious inference from this doctrine is, that if a British subject, born antecedent to the declaration of independence, while America and England were under the authority of the same government, and owed allegiance to one monarch, was considered as a natural born subject of that crown, and entitled, in every part of his dominions, to the rights and immunities' which belonged to that character, nothing has occurred subsequent to that period, which can deprive him of those privileges. Is there any statute law or adjudged case, which shows him to have forfeited, or in any .manner lost them ? Lord Coke, and all the judges in Calvin’s case say, that he cannot be deprived of them by any matter ex post facto.” (2 Johns. Cas. 29; 3 Id. 109; 9 Crunch, 40; United States v. Percheman, 7 Pet. Rep. 86, 87 ; Jones v. M‘Masters, 20 Howard, Rep. 20; White v. Burnley, Id. 250; M‘Mullen v. Hodge, 5 Texas Rep. 34; 2 Kent, Com. 56, 57.)

It is upon this principle, that the titles to lands acquired under the colonization laws, before the separation of Texas from the states of the Mexican confederacy, are not affected by the revolution and change of government, nor by the owner becoming or remaining domiciled in Mexico, after the dismemberment of the empire. The thirtieth article of the state colonization law of the 24th of March, 1825, relied on as working the forfeiture, declares that: “New settlers, who shall resolve to leave the state, and establish themselves in a foreign country, shall be at liberty to do so with all their property, but after thus leaving, they shall no longer hold their land; and should they not have previously disposed of the same, or should not the alienation be in conformity to Art. 27, it shall become entirely vacant.” (1 White’s Land Laws of California, Oregon, and Texas, 438; Holliman v. Peebles, 1 Texas Rep. 673.) Thus the condition upon which, by the law of the grant, the land was to become vacant, was that the colonist should have established himself in a foreign country; that is, of course, a country foreign to the Republic of Mexico. This was the condition annexed to the grant, by the law of the contract between the government and the grantee. The law entered into and formed a part of the contract, and bound the government to respect the title of the grantee, so long as he remained domiciled within the Republic of Mexico. If he did no act violative of the contract, as it existed at the time of its execution, his -grant could not be dedared forfeited, and the land vacant. The condition of the grant, and the rights of the grantee, were unaifected by the revolution, except in so far as the new government saw proper to change them. After the revolution, as before, the title was held under and by virtue of the colonization law, subject to the conditions annexed by that law, at the date of its emanation; unchanged in its terms and import. The duties and obligations imposed by the law upon the grantee, remained as before. The revolution left his rights precisely as it found them, except in so far as the new government saw proper to change them. The only change which was made, was to dispense with some of the conditions of the grant, leaving that imposed by the thirtieth article of the colonization law, untouched. It was declared simply not repealed, by the law which dispensed with other conditions. (Hart. Dig. Art. 1860, p. 1802.) Of consequence, it remained in its original force, with its original signification, extent, and operation. It imposed upon the grantee the same obligation and duty after the; revolution as before, and none other or greater. Such is the conclusion to be deduced from the acknowledged doctrine, that the rights of private property are unaffected by the change of government and' allegiance effected by revolution.

This doctrine was considered in its application to the land titles of this country, and expounded with great clearness and force, by Judge Lipscomb, in McMullen v. Hodge, 5 Texas Rep. 34. “In the case of conquest,” he said, “it is undoubtedly true, that it is in the power of the conqueror to destroy all the rights of the conquered; but in doing so, the most flagrant outrage, would be done to the moral sense of the age, and such as would never be presumed to have been perpetrated, without the most positive and explicit affirmation of its author.” So, in the case of a change of government by the people by their delegates in convention, “ It would be in the power of such convention to take away or destroy individual rights; but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable, would require the support of the most direct and explicit affirmative declaration of such intent.” It would be difficult, he said, to conceive, on any known principles of reason or justice, why a change made by the people themselves, (as in the case of the revolution of 1836,) should subject their rights to different and harsher rules of construction, than those which had been applied in the case of a cession of territory. (Ib. 72, 73.)

The convention that framed the constitution of the Republic, retained “ in full force, until declared void, repealed or altered, or expired by their own limitation,” all laws then in force not inconsistent with the new constitution. (Sched. sec. 1.) But while they made no change in the existing laws under- which the colonists held their lands, they imposed other conditions upon the holders of land titles within the Republic, with reference to the new order of things, and the new political relation we sustained towards the government and people of Mexico. Thus, as we have seen, they declared citizens, and asserted a claim to the allegiance, of all persons residing here at the date of the declaration of independence; and they denounced a forfeiture of citizenship and the title to their lands, against all who should leave the country, to evade a participation in the struggle for independence, or who should give aid or assistance to the enemy. But they did not see proper to declare any change in the laws under which they- held their grants, or to enlarge or restrict the terms of these conditions. They might have declared that all persons holding lands within the Republic, who were residing in Mexico, or who should go there to reside, should no longer hold their lands, and that they should become thereby vacant. But they did not so declare. It is said, that the policy of the government requires that this construction be given to the effect of the revolution. But it was for the political department of the government, in the exercise of the law-making power, to declare its policy; and it is for the courts to follow the lead of the political authority upon such a subject, and pronounce the law as we find it. It may have been thought the better policy in the new government, to hold over the Mexican population, who might be supposed likely to take sides with the enemy, the terror of the forfeiture denounced in the constitution, but at the same time, not to remove all motive to their return to their allegiance, by declaring their land vacant, by the mere fact of their having gone to the west of the Rio Grande. Whatever may have been the policy which dictated the action of the government, it did not see proper to declare any change in existing rights of property. The intention to produce such effect by the change of government, cannot be presumed. In the language of the court, in McMullen v. Hodge, to produce such effect would require an affirmative declaration of such intention.

Such, it is believed, is the view which has been always heretofore taken of this question. If it had been supposed, that the going- to Mexico worked a forfeiture under the colonization laws, the able counsel who argued the cases of Paul v. Perez, Swift v. Herrera, Bissell v. Haynes, Jones v. Montes, and other cases where the situation of the parties had been similar, would, certainly have pressed the argument with sufficient earnestness, to have elicited a full and direct expression of opinion by the court. Such is believed not to have been the understanding of those who framed the constitution and laws of the republic; or of the bench and bar concerned in the exposition of them. It is certainly contrary to the opinion of the court expressed in its solemn judgments, in the cases to which reference has been made. The decisions of this court, where that question was involved, have all proceeded upon the contrary doctrine to that now contended for by the appellants. And to admit such a doctrine, at this day, would unsettle titles, supposed to have been settled by the repeated decisions of the court, to an unknown extent, and work incalculable mischief. It would destroy the confidence and security, which, after years of vexatious litigation, retarding the settlement and prosperity of the country, is at length coming to be felt in the titles to land; and it would be violative of well established general principles of the law upon this subject.

It was objected at the trial, and is insisted in argument, that Martin De Leon had no authority to colonize within the coast border; and that the plaintiffs’ grant is consequently void. This question has been settled by repeated decisions of this court; which hold it a matter of the public history of the country, of which the courts will take notice judicially, that De Leon had such authority. If it had not been so determined, the evidence in this case would place it beyond doubt, that his right was recognized and upheld by the authorities of the government, and admitted or acquiesced in by the party in whom it is now claimed the right was, in such a manner as to conclude all further discussion. But there was no necessity for the production of evidence upon that subject, as the question had been put at rest by the decisions. (Bissell v. Haynes, 9 Texas Rep. 556; De Leon v. White, Id. 598 ; White v. Burnley, 20 How. 235, 246.)

It remains to consider the defence of the statute of limitations. It is clear, that the defendants were not protected by the limitation of three years, under the fifteenth section of the statute, (Dig. Art. 2391,) for the reason, that they produced no evidence of title or color of title, as defined in that section. (Smith v. Power, sufra, 29 ; Wofford v. McKinna, supra, 36.) The possession of neither defendant is connected by the evidence with the possession taken by .the purchasers at the tax sale in 1842, under any claim or color of title. The possession of the defendant Kilpatrick, dates its commencement, under claim of title, in 1844; that of Blair in 1847 or 1848. This suit was commenced in 1853. Neither defendant, therefore, had a possession continued for a sufficient length of time to claim the protection of the ten years’ limitation prescribed by the statute. The defendant, Kilpatrick, relied on the plea of five years’ possession, claiming under deeds duly registered, under the provision of the sixteenth section of the statute. (Dig. Art. 2392.) The deeds under which he claimed were recorded in 1845, more than five years before the institution of the present suit; but they did not contain any description of the land in question. If the owner, seeing the defendant in possession of the land, had consulted the record, he would not have been apprised thereby, that the defendant was claiming under these deeds. The description was false in some respects, and so imperfect in others, as to be calculated rather to mislead, than to put the owner upon inquiry, such as would lead to the discovery that the party in possession was claiming the land under these deeds. The falsity of description ran through the tax deeds and all the mesne conveyances; and was such, there being, no other- circumstance of identity or certainty in the description of the land, as naturally to induce the supposition, upon inspection, that they did not embrace the land in question. The object of the statute, in prescribing registry of the deed, as necessary to enable the possessor to avail himself of the five years’ limitation, is, to give notice to the owner that the defendant in possession is claiming under the deed. And if there is such falsity, or uncertainty of description, as that it will not answer the purpose intended, it cannot be considered a deed duly registered, within the meaning of the statute.

But for other reasons, it is clear, the defence of limitation cannot avail this defendant. He failed to prove a continued possession for five years after the registration of his deeds. His possession was interrupted for one year after 1847. The witness says somebody had been living on the land; but there is no evidence to connect the possession of that person with the defendant. Moreover, there is no evidence that the defendant was in possession of that part of the league claimed by him under his deeds. The possession, to avail the defendant under the statute, must have been a possession of the land claimed by him under his deeds, continued for the space of time required by the statute. The evidence does not show such a possession.

The tax deeds were void upon their face, for the want of certainty, and the falsity of description of the land', and are not to be deemed deeds duly registered within the provision of the law. (Wofford v. M‘Kinna, supra, 36.)

The defendants manifestly failed to make out their defence of limitation of three, ten, or of five years, under"the statute. In arriving at this conclusion, we have considered the filing of the petition in this case as the commencement of the suit, leaving out of view the former suit by one of these plaintiffs, as administratrix, for the recovery of the land. It is unnecessary, there-, fore, to inquire, whether the plaintiffs can claim the benefit of that suit as an interruption of the statute; and the ruling of the court upon that subject is therefore immaterial. The defendants wholly failed to make out their defence in any view of the question. We are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.