The Republic of Texas v. A. Skidmore, 1 Dallam 581

BAYLOR, Justice. —Skidmore commenced his suit against the Republic in the court below upon a certificate of head right, for the recovery of one league and labor of land, which certificate had been rejected by the investigating board of land commissioners. The petition contains the usual allegations in such cases, and upon issue joined he obtained a verdict and judgment in his favor for the quantity of land claimed in his petition. To reverse which the Republic prayed an appeal, and assigns for error here, that the verdict is against the law of the case and the evidence adduced on' the trial.

The evidence certified to by the judge below is as follows: “Skidmore came to Texas in February, A. D. 1836, and remained until June of the same year. He left, stating that he intended to return, and did so in April, 1839. Whilst here in 1836 he performed all the duties incident to a good citizen. Upon his return he laid claim to a selection of land made by him in 1836. When he left in 1836, he left iwith the intention, as stated by himself, of going for his family; and upon his return he brought his wife and children with him.

He also proved by two witnesses that at the date of the declaration of independence he was a married man and the head of a family. “The Republic upon cross-examination proved by the same witnesses that the family of Skidmore were at that date residents of the State of Alabama, in the United States of NOrth America.” In considering the question whether the verdict of the jury ought to be set aside as incompatible with the evidence and law of the case, we do not deem it necessary to go into all the refined and subtle distinctions as to domicile.

It is sufficient to say that in order to make a man a resident citizen within the meaning of the Constitution, he must have resided at the date of the declaration of independence within the Republic, with the intention (animo manendi), and that if he left it, he must have quitted the country animo revertendi. Testing the appellee’s case by these principles, we think the foregoing statement of facts is too vague and loose to sustain his claim. There is no satisfactory evidence by two witnesses, as the law requires, that his residence was in this country at the date of the declaration of independence.

The record, it is true, states that Skidmore was here at that time; but it is silent as to how that fact was proved. It also states that he stayed in the country a few months and performed all the duties incident to a good citizen. What those duties were, we are not informed and are left to conjecture. By his own showing, he was not incumbered with a family; and it is certain, during his stay in the country, Texas expected every man to do his duty. There was nothing, so far as we are informed by the proof, to have prevented Skidmore from rendering military services during that eventful period.

Had he performed such meritorious acts, it would have gone far to show that Texas was indeed his adopted country, and that he was not a mere sojourner in the land. Nor can much reliance be placed on his loose and idle declarations, that he intended to return to Texas. Actions speak louder than words.

Skidmore’s long absence from the country, and that absence being totally unaccounted for by the proof, together with the fact that his home, family and property were in Alabama during all that time, lead us irresistibly to the conclusion that he had not at the date of the declaration of independence made this country his residence animo manendi; and that when he left it, he did not do so with the certain intention of returning. This court has repeatedly determined that it would not in ordinary cases disturb the verdict of a jury unless it was manifestly against the evidence produced on the trial.

But the appellee’s case is one of that class of cases in which a great national policy is to be effected and carried out; and in doing this, we must take special care to construe the Constitution and laws so that those who receive the bounty and munificence of the government shall give us that increase of population contemplated by the law, within a reasonable time, and the services of its citizens when needed in the hour of trouble and of danger.

Skidmore came to the country, made a selection of land, stayed but a few months, then returned to his home, family and property in a foreign land, there remained with them for nearly three years, vfithout accounting for his long absence. Under such circumstances, to give him all the benefits of a headright claimant of the first class would be a dangerous precedent, situated as our country is, and most disastrous in its consequences to its best interest and happiness.

Persons claiming to be emigrants must understand that such equivocal conduct, as evinced in this instance, relative to their inhabitancy, intention of remaining and returning to the country, will not entitle them to the liberality of this Republic. But it is said this decision conflicts with the decision made in the case of The Republic v. Young. In that case, it is true, the court went a great way in sustaining Young’s claim. They gave the Constitution and laws the most benign and liberal construction they could possibly bear. We think, however, there is a marked difference between the two cases.

Young was here, with the intention of remaining in the country, as we thought, at the date of the declaration of independence, from the following circumstances. He returned to Mississippi, where he had left his family without any fixed habitation; he had broken up his home previously to coming to this country; sold all of his real estate and so much of his personal property as he could not conveniently bring with him to Texas; he returned to the country without delay where he has remained ever since, subject to taxation and to do military duty. There is another clear distinction between the two cases.

Young resided in this, country from the date of the declaration of independence until the passage of the land law in 1837, with the exception of his temporary absence to the State of Mississippi, with the view of bringing his family to Texas. This temporary absence, under the facts and circumstances of his case, did not in our opinion preclude him from bringing himself within the provisions of the twelfth and seventeenth sections of that law. The twelfth

section requires the applicant for land to prove that he was actually a citizen at the date of the declaration of independence, and has continued so up to the time of the passage of the act. The seventeenth

section provides, in all cases, that the claimant shall apply for his certificate of headright in the county in which he or she may reside at the date of the passage of the law; which was on the 14th of December, 1837. At the date of this act, Skidmore had no fixed residence in any county within this Republic; neither could he comply with the requirements of the twelfth section, for he did not return to Texas until April, 1839, long after the passage of the act of 1837. From these considerations, he is clearly not entitled to the benefits of the land law of 1837.

The traveling board of land commissioners therefore did right in rejecting his certificate for one league and labor of land. See Board of Land Commissioners v. Walling, decided by this court in 1843. Upon the whole, to sustain the verdict and judgment in this case would be going, in our opinion, one step further than the court went in the case of The Republic v. Young, and this we do not feel inclined to do, especially as some of the members of the court were not entirely satisfied with the doctrines laid down in that case.

It is therefore the opinion of a majority of the court, that the verdict and judgment of the court below be set aside, annulled and reversed, that the case be remanded, and a new trial awarded in the court below, in order that the appellee may show by additional proof, if he can, whether he be entitled to the amount sued for, or a less quantity; that he be permitted to amend his petition to meet the circumstances of his case, and that he pay the costs in this court expended. Reversed and remanded.

Judge Morris says: “In concurring with the within opinion, I do not wish it understood that any opinion is expressed by me on the point which seems set forth in the reasoning, that it might be and is necessary that a party should be actually present in the country at the time of the passage of the land law of 1837.”