The Heirs of Nestor Clay v. Tacitus Clay, 26 Tex. 24

Bell, J. The record presents two principal questions for our deon,¿deration. The first one of these questions is, could the grantee from the government of Coahuila and Texas, who hacl acquired land under the colonization law of 1825, alienate the-same before the expiration of six years from the time of the concession to him ? The 21th

Article of the colonization law of the 24th of March, 1825, provided that “ other settlers ” besides the contractors and the military, “ shall be authorized to alienate their: land when they shall have completed the cultivation thereof, and not before.” It is contended by the counsel for the appellants, that this provision of the law of 1825 was not repealed by' the Decree of the 26th of March, 1834, and, therefore, that a sale made in 1835, by one who received a grant of land in 1830, or 1831, was void, inasmuch as the term of six years had not elapsed between the date of the grant and the date of the sale. In support of this view, we are cited to the 30th

article of the Decree of the 26th of March, 1834, which provides, “ hereafter no colonization contract shall be made, and those heretofore made shall be strictly fulfilled, and in entire accordance with the law of the 24th of March, 1825.” We think it quite clear, that this

article has reference only to the duties- and obligations of the empresarios or contractors with the government, which were required to ho strictly and fully performed, and does not refer to the conditions imposed by the law of 1825 upon the colonists or settlers who received lands in accordance with its provisions. The 36th

article of the DocreO of the 26th of March, 1834, provided that “ settlers who shall have received titles to their lands may sell them at any timo, and the purchaser shall remain with the charge of fulfilling the duties of the vendor to the State, and the land shall be liable for the responsibility.” We are of opinion that this

article intended to remove the prohibition of sale1 imposed by former laws, and authorized all settlers who had received titles to their lands, as well those who had acquired lands-under the law of 1825 as any others, to sell their lands at any time; and although this point has never before been expressly and authoritatively ruled by this court, the decisions have proceeded upon the view now taken of the effect of the Decree of the 26th of March, 1834. Thus, in the case of Atkinson v. Bell, 18th Tex. 414, Judge Hemphill said: “ These prohibitions-,” meaning the prohibitions of sale within six years, contained in the laws of 1825 and 1832, “'were modified by

article 86 of Decree Mo. 272, of the 26th of March, 1834, authorizing settlers, after they had received their titles, to soil their lands.” In the same case, it was also said: “We have held, in various cases, in effect, that prior to the law of the 26th of March, 1834, sales made by colonists or settlers of their head-rights before the lapse of six years from the date of the title, were void; and we have also held, that after the law of the 26th of March, 1834, up to the date of the Constitution of the Republic, sales of lands by settlers, and agreements for the sale of their land, made before the final titles were issued to them, were nullities. (Robbins’ Heirs v.

Robbins’ Heirs, 3 Tex., 496; Spillers v. Clapp, 3 Tex., 498; Emmons v. Oldham, 12 Tex., 18.)” We are of opinion that Mestor Clay, having received title to Ms land in 1831, was at liberty to sell the same after the passage of the law of the 26th of March, 1834; and this was the view taken of this question by the judge who tried the case below- The other principal question presented for our consideration is raised by the ruling of the court below upon the exception to the amended petition filed by the plaintiffs on the 16 th of March, 1852.

The amended petition alleged that, “ at the time of said pretended purchase, the defendant (Tacitus Clay) was an alien? and not a resident of the State of Coahuila and Texas, or of the Republic of Mexico, and incapable of taking title to real estate.” This amended petition was excepted to by the counsel for the defendant, and the exception was sustained by fhe judge before whom the exception was taken. This ruling of the court raises the very important question, could an alien and non-resident acquire title to land by the laws of the Republic of Mexico, by purchase ?

This question was much considered and investigated by the former chief justice of this court, but never authoritatively decided by the court. The researches of counsel and our own, have enabled us to add but little light to that which was thrown upon the subject by the opinion of Judge Hemphill in the case of Holloman v. Peebles, 1 Tex. But we are of opinion that we can not err in holding that, under the laws of Mexico, an alien was incapable of acquiring real estate.

In the learned dictionary of Escriche, under the word “ Estrangero,” we find the following: 11 El estrangero no puede adquirir en la República ” (meaning the Republic of Mexico) “ propriedad raíz, si no se ha naturalizado en ella, casare con Mejicana, y se arregla a lo damas que prescribe la ley relativa a estes adquisiciones; ” which may be translated thus: “ The foreigner or alien cannot acquire real property in the Republic, (meaning the Mexican Republic,) unless, having been naturalized, he shall marry a Mexican, and observe, moreover, that which the law prescribes relative to these acquisitions.” So, in Arrilaga’s Recopilación de leyes, decretos, &c., of the Republic of Mexico, we find a Decree of the 12th of March, 1828, on the subject of passports and the mode of acquiring property by foreigners or aliens, the 6 th

article of which provides that foreigners introduced and established in conformity to law, are under the protection of the laws, and shall enjoy the civil rights which the laws concede to Mexicans, with the exception of the right to acquire landed property, “ which,” it is said, “ according to the existing laws, those not naturalized cannot obtain.” We are of opinion, then, that the court erred in sustaining the exception to the amended petition which asserted the alienage of the defendant; and that, although Nestor Clay had the right to sell the land granted to him, after the 26th of March, 1834, Tacitus Clay, if he was an alien and non-resident, as the amended petition alleged, had no capacity to take the land, or to acquire any kind of title to the same; and that the sale by Nestor Clay was a nullity, if his vendee, as was alleged, was an alien and non-resident.

These views lead to the reversal of the judgment, and we do not deem it necessary to discuss minor questions which may or may not arise upon another trial. Judgment reversed and cause remanded. Reversed and remanded.