Cryer and Wife v. Andrews and others, 11 Tex. 170

Hemphill, Ch. J. George Duty, a citizen of the Republic of Texas, departed this life, in the fall of 1837, leaving, as a portion of his estate, three-fourths of a league of land lying in the county of Fayette, and as his heirs, several brothers and sisters and their descendants, among whom was his sister Mildred Cryer, wife of Morgan Cryer, then and now residing in the State of Arkansas.

In the year 1839, this land was, by decree of the Probate Court of Bastrop county, divided among the other heirs of the said deceased; no part of the same being assigned to the said Mildred ; nor was she recognized as one of the heirs of the deceased.

Some of the‘distributive portions of the said heirs, were sold to other parties, who took possession of the same, made improvements, &c.; and in the year 1847, this action was commenced by the said Mildred, joined with her husband Morgan Cryer, claiming a portion of said land—and that as heir of the said George Duty, she was entitled to a partition and a distributive share of the same, as against the other heirs and their alienees. A jury being waived, and the cause having been submitted to the Court, the petition was dismissed; and the plaintiffs, by appeal, brought up the cause for revision.

It cannot be seriously urged, that the decree of the Probate Court of Bastrop county, by which the other brothers and sisters, or their children, were declared the heirs of the deceased, and the estate distributed among them, can have any effect, in itself, upon the rights of Mildred Cryer, who was no party to the proceeding.

For it is a well established principle, that a partition is binding upon the parties only, who are before the Court, and those whom they virtually represent. (1 Story, Eq. 656; 17 Ves. 544.) But, inasmuch as this partition was a notorious act of ouster, the other parties claiming the whole of the land, to the exclusion of the plaintiff", it would, on general principles, as against a citizen not laboring under a disability, operate as the commencement of prescription in favor of all who held adversely, under such decree; and possession under it, accompanied with the circumstances enumerated in the statute, would ripen into a bar against a joint owner thus disseized. (3 Howard, 674, 679.) Had Mrs.

Cryer been a citizen of the Republic, and an unmarried woman, at the time of partition, the adverse possession of defendants would have barred her action ; and the only question is, whether, being an alien, she is entitled, notwithstanding the ordinary bar of the general law of limitations, to assert her rights, in a judicial proceeding. This depends on the Constitution and laws of the Republic, in relation to the alien heirs of a deceased citizen.

The constitutional provision is to the effect, that if any citizen should die intestate or otherwise, his children or heirs should inherit his estate; and aliens should have a reasonable time to take possession and dispose of the same, in the manner to be thereafter pointed out by law. The statute of 1841 (Hart. Dig. Art. 585,) declares that every alien, to whom any land may be devised or may descend, shall have nine years to become a citizen of the Republic, and take possession of such land, or shall have nine years to sell the same, before it shall be declared to be forfeited or shall escheat to the government.

It appears, then, that the Constitution guaranteed a reasonable time to aliens; and with direct reference to that provision, the law has declared the time to be nine years. The period within which an alien heir must prosecute his rights, or secure his claim, has thus been fixed by special law; and we are not at liberty to look to general legislation, or laws of limitation, for rules as to the rights of aliens or heirs, but must be controlled by the limitations which the special law, touching the subject matter, has affixed.

Such being the rule, it is perfectly immaterial to the alien heir, whether the possession and acts of other joint owners be such as, under ordinary circumstances, and with reference to the citizens of the country, would be deemed consistent with, or adverse to, his rights. For whether they be the one or the other, the time within which he must become a citizen or sell the lands, is the same.

The acts of others cannot affect his rights, favorably or unfavorably ; for he has nine years to secure the inheritance; and if this passes without citizenship or sale, his right to the land is lost, no matter how it is claimed, or whether it be claimed by others, at all, or not. Nor does coverture, infancy or other disability, have any effect upon the right of an alien heir. Notwithstanding these disabilities, the alien’s rights must be legally asserted, within the nine years ; for the law having made no exception in favor of such disabilities, none can be made by Courts of justice. The rights of Mrs.

Cryer being in no degree affected by the possession of the defendants, however adverse this might be as against others not aliens, the statutes which give effect to such possession, are inapplicable to the case; and the only question is, whether the nine years, allowed by law, have elapsed, without citizenship or a sale of the land by Mrs. Cryer. There is no pretence that she has sold the land; and the inquiry is, Did she become a citizen in accordance with the statute ?

Some question has been made, as to the date from which the time must be computed, viz: whether from the death of the intestate in 1837, or from the statute in 1841; but it will not be material to consider this point, as the view we shall take of the title of the plaintiff to citizenship, will, independent of this, be decisive of the cause.

For, whether the time be computed from the death or from the Act, still nine years had not elapsed before the consummation of Annexation between Texas and the United States ; and from that time, the plaintiff became virtually a citizen of Texas, and entitled to the privileges and immunities of citizenship. She was, from that time, in like manner as other citizens, authorized to hold lands.

The rules which control the rights of other citizens in lands, from that time operated upon her rights ; and the doctrines and rules in relation to the rights of alien heirs, their privileges, restrictions or exemptions, ceased, so far as she was concerned, to have any operation. This position seems so clear, that comment, in support of it, is unnecessary.

When the Congress' of the United States, under the authority to admit new States, receives a foreign nation into the confederacy, the laws of these respective nations, in relation to the naturalization of individual emigrants, have no application to the respective citizens of each. By the very act of union, the citizens of each become citizens of the government or governments formed by this union. The position which has been sometimes broached, that the citizens of Texas must submit to the laws of naturalization, before they can become citizens of the United States, is quite preposterous.

Ho such, doctrine was ever admitted or applied to the citizens or inhabitants of Louisiana or Florida—countries acquired by purchase. (2 Martin, 158 ; 3 Martin, 733.) Much less is it applicable to the citizens of a State, which by voluntary treaty or legislation, becomes incorporated into the United States. And if the citizens of Texas cannot be deprived of their franchises, as citizens of the United States, neither can citizens of the latter be stripped of the immunities and privileges pertaining to the citizens of this State.

The plaintiff, then, by virtue of citizenship, is entitled to maintain her action, or, in the language of the statute, to take possession of the land. But a short time elapsed, after she became a citizen, before she commenced her action—-not sufficient to impair the force of her claim. The rights of alien heirs, as adjudicated in this case, depend altogether on special legislation. Hine years are given to acquire citizenship; and there is no intimation or ground of inference that this citizenship, when acquired, will retroact to the accrual of the right.

If it did, it would be subject to all the countervailing rights and equities in others, which, in the mean time, had grown up. But, on the contrary, the period of nine years, within which the alien heir may avail himself of the benefit of the inheritance, is conceded without restriction or exception, expressed or implied. He is not even compelled to assume citizenship. He may continue an alien and sell the land. The sale could not, by possibility, retroact upon his rights; and neither could his citizenship have such effect.

The impolicy of the law, by which alien heirs, after so great a lapse of time, are permitted to assert their rights, is most manifest ; but it is not in the power of Courts to afford the remedy. It is at war with our whole system of limitations, and frequently may become an engine of the greatest mischief and oppression. Take a case like the present, for instance, where the property has been divided under the decree of a Court of competent jurisdiction, with all legal presumptions in favor of its correctness, validity, and that the rights of all the heirs have been duly regarded.

Under the sanction of such decree, third persons, entirely ignorant of the existence of other claimants, may purchase, make extensive improvements, and the property may, by sale, deaths of owners, &c., have passed through many hands, and been subjected to many modifications, when an unknown heir, from some remote part of the world, after the lapse of many years and a laches inexcusable in a citizen, may claim that all these rights and relations between owners should be disturbed, that the peaceful and industrious homes of persons ignorant of his existence shall be violated, and that the fruits of the toils, struggles and expenditures of others should be converted, at least partly, to his aggrandizement, and to bestow on him a fortune not acquired by his own time, labor or effort, but wrung from the hard earnings, the labors and perhaps scanty means of others.

This injury and oppression might be in a great measure avoided, if alien heirs were compelled to assert their rights within the limited periods assigned to citizens, for the assertion of theirs, as against adverse possession. But the remedy for the evil is within the power of the Legislature alone, and to their wisdom it must be left to adopt such, if any, as may be deemed necessary. The question as to the proper mode of the distribution of this property, is not so presented, as to require or admit of much discussion.

The plaintiff has, for a long period, neglected to assert her claim; and purchasers, under the judgment, have perhaps expended much labor, and laid out large sums in improvement of the property. Under such circumstances, it will be perfectly competent for the Court to regulate the distribution so as to do justice between the parties ; and if any purchaser cannot have the benefit of his improvements, that he shall at least have compensation for them. (1 Story, Eq. Sec. 655.) The judgment is reversed and the cause remanded for a new trial. Reversed .and remanded.