Bowmer v. Hicks

Wheeler, Ch. J. It is evident, from the record, that the question on Avhich the decision of this case was made to turn at the trial, was, whether the defendant, Fisk’s vendor, Harmon, was domiciled in the country, at the time he obtained the grant. It yyas assumed that, if he had not his domicil in the country, at the time, the grant was void. Thus the court instructed the jury that, “If, at the date of the “issuance of the title to Harmon, he Ayas not domiciliated “in Texas, but was a citizen of, and domiciliated in the “ State of Illinois, in the United States of America, then the “ title issued to him by the commissioner, Steele, was, from the beginning, an absolute nullity, conferring no rights on the “grantee, nor on those who claim under him.” The greater portion of the charge of the court, was upon the law of domicil, explaining to the jury in what it consists, and yyhat is essential to effect a change of domicil. The jury were instructed, in substance, that unless the intention of the grantee, at the time [160] of obtaining the grant, was to make this country his future home, he could not be deemed to have his domicil here, and the grant was void. And the jury, in their verdict, responded to the charge of the court respecting the validity of the title, in such terms as leave no doubt that this was the ground on which the case was decided. They say, “We also find that “the grant in evidence to Elisha D. Harmon, was, from the “beginning, void.” The evidence is uncontradicted, that Harmon came to the country, in the spring of 1886, and that he was residing in Bastrop, when he obtained the grant, (Nov. 7th, 1836.) He continued to reside there, until the settlement was broken up, and the inhabitants left it, at the beginning of the campaign, in the spring of 1836. Harmon left with the other inhabitants, having, as appears, obtained a permit (in Eebruary, 1836) from the judge, in the first instance, to go to the United States, “ on business, and return at his pleasure.” He, however, as it seems, did not leave the country immediately; for he appears to have obtained another similar permit, in November of that year. He appears then to have left. But it is further in proof, that he was again residing in Bastrop, in 1838; he had hands employed in building a house there at that tirbe. Shortly before obtaining his grant, he told the witness, Hornsby, that he intended bringing his family to the country, and that he could satisfy him that he would bring them, by letters then in his possession. There is no evidence of a contrary intention entertained by him at that time; and if the decision of the case depended, as there is little doubt it was made to depend, at the trial, upon that question, it would be difficult to point to the evidence in the record, which disproves the truth of his declaration of intention, made at the time, or which would warrant the jury in finding, that such was not his intention. There is the fact, that he did not bring his family to the country; but it would not be less reasonable to conclude, that he was prevented, by the dangers to which they would have been exposed upon that frontier, for a series of years after the [161] settlement was broken up in the spring of 1836, than that he did not entertain the intention, at the time he obtained the grant. But the decision of the case did not depend upon that question; nor was that an inquiry which could be properly entertained for the purpose of invalidating the grant. That the grantee possessed all the requisite legal qualifications to entitle him to the grant, and that the grant itself concludes all after inquiry upon that subject, has been repeatedly decided. This precise question was decided in the case of Johnson v. Smith, 21 Tex. Rep. 722, where it was held, that evidence cannot be admitted to prove that the grantee had not brought his family to the country, and had not, in fact, become domiciled here, for the purpose of showing that he was not entitled to the grant, or had committed a fraud in obtaining it; that the original validity of a grant, regularly issued by competent authority, cannot be thus impeached. (Ib. and cases cited.) Whether, after having obtained the grant, the grantee abandoned the country, before alienating the land, and established his domicil in a foreign government, whereby his estate was defeated, and the land became vacant and subject to location, is a different question. In the early cases of Holliman v. Peebles, 1 Tex. Rep. 673, and Horton v. Brown, 2 Id. 78, it was decided that, under the colonization laws, and particularly the 15th Art. of the National law of the 18th of August, 1824, and the 30th Art. of the law of the State of the 24th of March, 1825, the effect of leaving the country, and becoming domiciled in a foreign government, after having obtained a grant, was, to defeat the estate of the grantee, and restore the land to the mass of vacant public domain; and that it might be again granted, without judicial inquiry to ascertain the fact of abandonment of the country by the first grantee. The same doctrine has been held in a subsequent case. (Yates v. Iams, 10 Tex. Rep. 168.) But this consequence has been held not to attach to any other act of the grantee, by which he forfeited the title to his land; or to the non-performance of conditions subsequent, annexed to the grant. (Swift v. Herrera, 9 Tex. Rep. 263; Han [162] cock v. McKinney, 7 Id. 384; Rivers v. Foote, 11 Id. 672.) In these cases, it was held, that the forfeiture must be ascertained by judicial inquiry, in some mode to be provided by law, in order to divest the title of the grantee, before the State could resume the grant, or otherwise appropriate the land. (Ib.) Because the court erred in its rulings, to the effect that the estate of the grantee of the title under which the defendant’s claim, could be defeated, and the title annulled, by proof that he did not possess the requisite qualifications, or had not performed the necessary conditions to entitle him to the grant, at the time it was issued, the judgment must be reversed, and the cause remanded. Reversed and remanded.