The alien heirs of a colonist in Texas, who died intestate in
1835, cannot inherit his landed property there. The courts of Texas
have so decided, and this Court adopts their decisions.
This was an action of trespass to try title brought by
Middleton, a citizen and resident of the State of Missouri, to
recover a tract of land in the County of Refugio, in the southern
and western margins of the San Antonio and Guadalupe Rivers, being
the same land which was granted to a certain Joshua Davis, by the
proper authorities of the State of Coahuila and Texas, in the
colony of Power and Hewetson, and bounded as follows, to-wit, on
the north by the rivers San Antonio and Guadalupe, on the south by
vacant lands, on the east by the league of land granted to P. Hines
and on the west by the league granted to Dona Josefa Galan, widow
of _____ Hernandez, deceased, having a front, when reduced to a
straight line, on said river of about eight thousand eight hundred
and eighty-seven varas and running back about fourteen thousand and
sixty varas, and containing five and one-fourth leagues.
The amended answer of the defendant, McGrew, said that the
plaintiff ought not to have and maintain his action herein, because
he says that the said Joshua Davis, in the petition named, under
whom the plaintiff claimed, died in the year 1835. That his next of
kin and pretended heirs, under whom the plaintiff claims, were, at
the date of his death, aliens to the Republic of Mexico, being
citizens of the United States of America residing in the State of
Missouri, and thenceforward
Page 64 U. S. 46
continued and remained aliens as aforesaid, and aliens from the
Republic of Texas, being citizens of the United States, resident in
the State of Missouri as aforesaid. And that the said next of kin
and pretended heirs did not at any time prior to the annexation of
Texas or ever after take possession of the land sued for, and did
not, prior to said annexation, make sale of the same, but the said
land remained, from the time of the death of said Davis,
continuously until the present time in the adverse peaceable
possession of this defendant and those under whom he claims,
holding and claiming the same adversely to the pretended right and
title of the said next of kin, which is the title under which
plaintiff claims in this suit, and this he is ready to verify.
Wherefore he prays judgment &c.
After much evidence was given upon the trial which it is not
necessary to recite, the court charged the jury that if they found
by the evidence that Joshua Davis, the grantee under whom the
plaintiff claimed, departed this life in the year 1835 having no
other kindred than three brothers, citizens and residents of the
United States, and aliens to Mexico, such brothers, by reason of
alienage, could not take real estate by descent from him in Mexico.
To the opinion of the court in thus charging the jury the said
plaintiff excepted. Whereupon the jury found a verdict for the
defendant, and the plaintiff brought the case up to this Court.
Page 64 U. S. 47
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This action was instituted for the recovery of land in the
colony of Power and Hewetson, in Texas, in the possession of the
defendant and claimed by the plaintiff through a conveyance by the
brothers of Joshua Davis, deceased, a colonist, who died in June,
1835, intestate and without issue. These brothers were citizens of
the United States and assumed to be the heirs-at-law of the
decedent. The only question presented for the examination of this
Court is whether the brothers were capable of taking by inheritance
real property within the limits of Mexico, or were they disabled by
their condition as aliens? The solution of this question must be
found in the jurisprudence of Mexico, as it is understood and
applied to cases at they have arisen within the State of Texas. If
there is found in the decisions of the supreme court of that state
clear and consistent testimony to the existence of a rule of
descent under such circumstances, the duty of this Court will be
performed in ascertaining and enforcing that rule in this case.
The defendant has referred the court to a series of decisions as
containing such testimony.
The case of
Hollomon v. Peebles, 1 Tex. 673, was that
of heirs claiming the land of a colonist in the settlement of
Austin who after his location had returned to the United States and
died, leaving heirs who were citizens of them. The court intimates
that by the laws of Spain as adopted in Mexico, these heirs had no
heritable blood, and proceed to say:
"Whatever may be the true construction of the laws of Spain or
of colonization on the subject matter, there can be
Page 64 U. S. 48
no doubt that the capacity of aliens to hold lands in the
Republic of Mexico, if it ever existed under the laws of Spain, was
extinguished by the decree of the 12th March, 1828."
4 vol. Ordenes y Decretos 155. The sixth article of this decree
is expressed in the following terms,
viz.:
"Foreigners introduced and established in conformity with the
regulations now prescribed or which shall be hereafter prescribed
are under the protection of the laws, and enjoy the civil rights
conferred by them upon Mexicans, with the exception of acquiring
landed rural property, which, by the existing laws, those not
naturalized cannot obtain. . . . This provision covers all
acquisitions of real property, whether by purchase or inheritance,
and is so understood by the Mexican editor of
Murillos de
Testamentos."
The case of
Yates v. Iams, 10 Tex. 168, was that of a
citizen of the United States claiming through an ancestor who had
died in 1827 in Texas, holding land by a head right acquired in
1824. The court announce their conclusion
"That, upon general principles pervading the law of 1823, under
which this grant was made, and upon the general policy of the
government in relation to the right of property in lands granted
for the purpose of colonization at the time of the death of the
intestate, an heir domiciliated out of the Republic of Mexico could
acquire no right by inheritance to lands of persons dying in the
province of Texas."
The case of
Hornsby v. Bacon, 20 Tex. 556, was that of
citizens of the United States claiming to share as heirs in real
property of a citizen of Texas, who died in 1835, with other
relations of the same degree, who were citizens of Texas. The court
said:
"The right of the plaintiff's vendors the alien heirs to claim
this land by inheritance must be tested by laws anterior to the
Constitution of the Republic, and by them, as appears from our
previous decisions, such right cannot be sustained. The plaintiff
can claim nothing through them by his conveyance."
The case of
Blythe v. Easterling, 20 Tex. 565, is that
of heirs claiming the landed estate of an immigrant to Texas who
died in November, 1833, they being aliens and nonresidents.
Page 64 U. S. 49
The court decided
"That it is too well settled by repeated decisions of this court
to be longer regarded as an open question that at the period of the
death of the decedent, his heirs, being aliens, could not inherit
his estate."
We understand these decisions to declare a law of descent
applicable to the landed property of Texas generally, and not to
lands in a particular colony, or settled under a particular act of
colonization. The case before the Court falls within the control of
these decisions.
The judgment of the district court is affirmed.
