Settegast v. Schrimpe

Walker, J. The appellants brought suit in the district court to obtain title and possession of thirty acres of land lying near the city of Houston. They aver in their petition that their father, William M. Settegast, purchased the land in controversy from John W. Schrimpf, in his lifetime. W. M. Settegast, the father of the plaintiffs, died in 1858. Their mother had previously died, and a second mother and two sisters died about the same time their father deceased. At the death of their father they were infants of a. tender age; that Schrimpf took them to his house, where they remained and grew up to manhood ;' that Schrimpf afterwards dying, the appellee administered — 340 — upon the estate, and that she fraudulently withholds from them the title to the lands so purchased by their father from her intestate. They further aver that their father took possession of the land after his purchase, made valuable improvements upon it, and dying, was buried on it. The defendant pleads generally and specially, and in bar of the action set up, that William M. Settegast, at the time of his death, was an alien, and could not transmit his property by inheritance to his children. The plaintiffs amended their petition, and aver that their father came from the kingdom of Prussia in the year 1851, and settled in Harris county, in the State of Texas; that he intended to make the United States his home; that he became domiciliated ; that he acquired the property in controversy by purchase ; and that, so soon as he was able, he made the proper declaration before a court of record, of his intention to become a citizen of the United States, but that he died before the full period of his naturalization had elapsed. They further aver that, on attaining their majority, they became and are citizens of the United States, and of the State of Texas, residing in the county of Harris. The amended petition was demurred to, and the court sustained the demurrer; to which exceptions were taken, and the cause is brought to this court by writ of error. The only question, then, for our decision is, whether or not the court erred in sustaining the demurrer. Ib the case of Yates v. Iams, 10 Texas, 168, we have a learned exposition of the rights of foreigners, or aliens, under the laws of Spain and the Indies. This case was decided in 1853, but the facts governing it arose prior to the adoption of the common law as a rule of decision in this State ; and it can only be regarded as authority — 341 — in the decision of the case at bar in so far as it Binstrates the origin, growth and development of our land system, and the proverbial liberality of Texas under each of her different forms of government, in endowing all bona fide settlers with valuable grants of land. This liberality was extended alike to the people of every civilized nationality. The Chief Justice in his opinion quotes from Escriche to the effect that a foreigner, whether transient or domiciliated, could dispose of his property by contract inter vivos, or by will; and a devise could be made to foreigners or aliens, as wrell as to natives. So, also, if a foreigner died intestate, his property was not subject to confiscation, but descended to his right heirs, though they were aliens or foreigners ; and that the right atibana (that is, the right of-escheat) does not exist under the laws of Spain. This was certainly a much more liberal and humane method of treating the rights of foreigners than that adopted by the common law; for by common law an alien could not maintain an action to recover real property. He might acquire land, bnt he held it subject to the will of the government, and upon his death his land will revert to the government. (See Barrett et al. v. Kelly et al., 31 Texas, 476.) Such is declared to be the law of Texas by the opinion delivered in the case by Chief Justice Morrill; but we think this case is in conflict with the case of Sabriego v. White, 30 Texas, 576, and also with the case of Osterman v. Baldwin, 6 Wallace, 106. In this case the court say: “A citizen of the United States, and who as such was of course, before the admission of Texas into the Union, an alien to that republic, and so, as against office found, incompetent to hold land there, became, on the admission, competent, no office having been previously found.” Mr. Justice Lindsay, in his able opinion delivered in the case of — 342 — Sabriego v. White, holds that Article 44, Paschal’s Digest, clearly contemplates an inquest of office before the declaration of forfeiture could be made. In the same opinion, commenting upon Article 44, Note 238, Paschal’s Digest, the learned judge says: “This provision of the law shows, beyond all controversy, that the common law rule that an alien cannot cast the descent upon an alien, was wholly inapplicable to the Republic of Texas. Hence we can see that, the decision in 18 Howard’s Reports was announced under a total misapprehension of the state of the law in Texas at the time the rights of the plaintiffs accrued.” But it is difficult to bring the case at bar within the precise rule of any reported case we have been able to find. We think, however, that the statutes in force at the time of the death of Wm. M. Settegast settle this question. But, before we proceed to consider the rights of the parties under the statute law of the State, it is important to consider the main question by another and a different light. Was Wm. M. Settegast an alien, in the true sense of the term, at the time of his death ? We think not. There was nothing in the laws of Texas which declared him such; but, on the other hand, he was permitted, under the the laws of the State, to exercise most of the rights of citizenship, and was, to all intents and purposes, responsible to the laws as other citizens. The Constitution of the United States reserves the right, and makes it the duty of Congress, to pass naturalization laws, and the States are inhibited the exercise of this power. A very noted case has arisen in the history of our government, in which the political power has declared what must be regarded as the condition of one similarly situated to Wm. M. Settegast at the time of his death. (See letter of Secretary Marcy, Executive Doc., first session, Thirty-third Congress.) — 343 — Martin Koszta, one of the Hungarian patriots, after the failure of the revolution of 1848, came to the United States, and in due time abjured his allegiance to the Emperor of Austria, all other sovereignties and nationalities, and avowed his purpose to become a citizen of the United States. Before he had been fully naturalized, he had occasion to travel in the East, and was found in the city of Smyrna, within the dominions of the Ottoman Empire, and was forcibly abducted, against the protest, not only of the American Minister, but of the Turkish authorities, on board an Austrian armed vessel. The United States war ship St. Louis anchored in the port of Smyrna, before the Austrian vessel had sailed; and her commander, Capt. Ingraham, being appealed to, demanded the release of Koszta, and forced his rescue at the mouth of his cannon. The Austrian government demanded from the United States apology and reparation, which the United States firmly refused, endorsing the conduct of Capt. Ingraham, and asserting the right and duty of the United States to protect Koszta at home and abroad. Notwithstanding Austria made loud and inflammatory appeals to the different courts of Europe, the United States maintained her point, and the principle involved may be said to have fairly become one of international law. This was the case of one who was forced into exile, and was little more, at most, than a cosmopolite. He had been but a short time in the United States before he was found in another quarter of the globe, under circumstances well calculated to arouse alarm and stir up suspicion in the Austrian government. How strongly, then, does the history of this case imply the rights of one situated as Wm. M. Settegast at the time of his death. Under this authority of the United States, we are forced to the conclusion that he — 344 — must be regarded as having secured to himself and his children, who were minors under the age of seventeen, the right of a naturalized citizen, except so far as pertained to the exercise of the elective franchise. But, without intending to place our decision solely upon this ground, we hold that, under the act of the twenty-eighth of January, 1840, and the substantial reenactment of the same on the eighth of March, 1848, all difficulty in the way of the title to land in William M. Settegast descending upon his death to his children had been removed. It is true the language of the act might be more plain. The act reads thus: “In making title to land by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate is or has been an alien; and 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 said land; or shall have nine years to sell the same before it shall be declared to be forfeited, or before it shall escheat to - the government.” This, as Mr. Justice Lindsay has said, indubitably shows that the common law rule, that an alien cannot cast descent upon an alien, was totally inapplicable to the State of Texas. It sufficiently appears in the pleadings of this case that the plaintifiis are within the nine years limitation, and we are unable to see that there is any legal bar to their recovering in this case. The judgment in the district court is therefore reversed, and the cause remanded. Reverseb and rewanded.