Robert T. Barrett et al. v. John Kelly et al., 31 Tex. 476

Morrill, C. J. —In 1830 one Galindo, a Mexican citizen, received from the proper authorities of Mexico a concession for eleven leagues of land. This concession, in the year 1833, was located on certain tracts of land, and titles issued to one Wharton, who was also a citizen of Mexico, and who became previously the purchaser thereof. On the 13th day of April, 1833, the day of the issuance of the title, Wharton sold the land to James Barrett and W. D. Barrett.

In 1835 there was granted to one Bowman, as a colonist of the Hashville colony, a title to one league of land, being a portion of the eleven leagues granted to Galindo. On the 22d of May, 1854, suit was instituted by the owners of the Bowman league against the owners of the Galindo grant for that portion of the land covered by both grants. The reasons assigned by plaintiff why his younger title should prevail over the older title were— 1. That the agents of the government who executed the title to the assigns of Galindo had no authority to issue it, because the land was beyond their limits. 2.

That the title was issued for the benefit of aliens. " 3. That the purchasers of the land from Wharton were aliens, and at the time the title was issued to Bowman for the league of land conflicting with the eleven-league grant, the owners of the eleven-league grant were aliens. There were some other questions raised, but the case must turn on these. It is admitted that the concession to Galindo was legal and regular, and no valid objection is made to the ownership of this by Wharton.

The first question isrf had the authorities who extended the title to Wharton power so to do or jurisdiction over the land in controversy? This is now not an open question. The cases of Hancock v. McKinney, 7 Tex., 384; Ryan v. Jackson, 11 Tex., 391; Martin v. Parker, 26 Tex., 253, all concurring affirmatively upon the same point, it is res adjudicate.. The second' question will next receive our attention.

It will be perceived that the parties kept silent for upwards of thirty years before they attempted to set aside or attack the validity of this older grant, and the testimony relied on either for attack or defense is not of record, but depending upon the recollection and memory of man. Witnesses were introduced to state what they recollected concerning a matter that took place upwards of .thirty years previously, and which at the time could be but a mere rumor.

We certainly hold our property by very precarious titles if we have to depend not upon the titles themselves, but what some one may recollect concerning them. And for this reason statutes of repose have been introduced in all organized governments, and there are none where the legislatures have been more careful in this respect or given less time to institute suits than in our own state.

The longest time allowed in any case is ten years, and a suit founded upon facts which took place previous to twice this allotted time should be called a stale demand and so treated by the courts. * The third and last question relates to the alienage of the defendants. There are three important eras in the jurisprudence of Texas. Previous to the 2d of March, 1836, the laws of Mexico, based upon the civil law, were the laws in force. The principles declared in the constitution of 1836, and the statutes of the state from that time to 1840, together with the old Mexican laws, formed the code of laws for that period.

On the 20th of January, 1840, the legislature, in one and the same act, repealed all laws in force prior to the 1st of September, 1836, with some few exceptions therein named, and adopted the common law of England as a rule of decision, so far as it was not inconsistent with the constitution or the acts of congress then in force. This act enabled the citizens of the United States to come to Texas with their household gods.

But when the annexation to the United States took place in 1845 we became apart and parcel of the United States, and none of the citizens of the United States were aliens to Texas, and the citizens of Texas would be in their own country from the St. Lawrence to the Gulf of Mexico. All the laws therefore relative to alienage, so far as the same were of Mexican or Spanish origin, were abolished in 1840.

And all cause for invoking the common law of England or the constitutional or statute laws of the state on the same subject, in suits between citizens of Texas and those residing in other parts of the United States, was swept away by the union of the two governments, or rather by the merger of Texas in the United States. From 1833 to 1840 the defendants" were liable to have their lands divested from themselves by due process of law according to the laws of Mexico, and from 1840 to 1845 the State of Texas could, by proper suit and showing that the owners were aliens, dispossess them of the lands in question.

This suit was instituted in 1854, when the defendants were citizens of the United States, and were not aliens. There is no allegation that any court or political authority ever adjudicated upon the alienage of defendants while they were such, and there can he as little question that without some process of this kind the rights of the parties to the land were never divested.

The Galindo title, it is admitted, was properly mapped, and appears in all respects legal, in the general land office, and is of anterior date to that of plaintiff’s, and none of the parties connected with it up to the date of its issuance under any disabilities. The first and leading case on the question of alienage is The Heirs of Holliman v. Peebles, 1 Tex., 673. That was a suit by alien heirs of an alien ancestor to recover lands which had been granted to the ancestor, but divested from him in -his lifetime by the ayuntamiento, and reinvested in the government and reconveyed to Peebles.

The learned chief justice, in giving the opinion of the court, showed his extensive knowledge of the civil and Mexican laws, but the judgment of the court was in two lines: “ That under the plea of alienage the plaintiffs are disabled from maintaining the action.” In the words of the common law, “ an alien cannot maintain a suit to recover real property.” As the suit was instituted in December, 1840, the common law of England, and not the civil, was the rule of the decision. In Yates v. Iams, 10 Tex., 174, the party plaintiff represented an alien heir, and the same judgment followed. In White v.

Sabriego, 23 Tex., 244, the plaintiffs were citizens of Mexico, and brought suit to recover land. The court in the opinion said: “The naked question is presented, whether an alien non-resident .can maintain in the courts of this state an action of trespass to try title. The plea that the plaintiff is an alien, interposed to a real action, goes in general to defeat the right of action altogether, upon the ground of public policy, which denies the right of ail alien to inherit or hold lands.” In all of these cases the plaintiffs were aliens. In the case before the court the defendants are the reputed aliens.

The common-law doctrine is well laid down in a Hew York case: “An alien may purchase land, or take it by devise, but holds it at tlfe will of the government. The government may at any time institute an inquest of office, for the purpose of ascertaining whether he is an alien or not; and, if it he found that he is, the estate or possession of the land is immediately vested in the people of the state, who before had only the right or title. The people cannot enter into the possession of an alien without this judicial proceeding.

His entry and possession and holding are lawful, and can be terminated only by regular legal proceedings. “But when an alien who holds land dies, at common law it instantly, and of necessity, without any inquest of office ^ escheats and vests in the state, because the freehold cannot he kept in abeyance, and he is incompetent to transmit by hereditary descent. The law, quce nihil frustra, never casts the freehold upon an alien heir who cannot keep it.” (Jackson v.

Adams, 7 Wend., 368.) It would thus seem that an alien can defend against any one but the government, and it is very doubtful that any well-considered case can he found to the contrary, based on tire common law of England. We have not deemed it advisable to take up the several rulings of the court, or follow the meanderings of the attorneys in conducting the cause. The very lucid reasoning of this court in Johnston v. Smith, 21 Tex., 724, as also in Bowmer v. Hicks, 22 Tex., 159, by the same distinguished judge, could very properly be taken in part to apply to this ease.

As both of those cases were reported after the trial of this case in the district court, it is presumed the district judge was not conversant with them. The reversal of the judgment in this case may be couched in almost the identical words of Chief Justice Wheeler, in the last-named case. Reversed accordingly.