Andrews v. Heirs of Spear

Gould, Associate Justice. The questions mainly discussed by counsel for appellant grow out of the alleged alien-age of John Spear, at the time (1841) when the land in controversy was conveyed to him, and at the time of his death, in 1852. The Constitution of the Republic says: “No alien shall hold lands in Texas, except by titles emanating directly from the Government of this Republic.” (Gen. Prov., sec. 10; Paschal’s Dig., p. 37.) We are aware of no decision to the effect that under this constitutional provision a conveyance of land to an alien was a nullity. On the contrary, it has been held, that such a conveyance was only voidable, and was valid to protect the alien in the enjoyment of the land until some proceeding on the part of the Republic against him. (Osterman v. Baldwin, 6 Wall., 123.) So, whilst the rule of the common law was that an alien could not cast descent, and that on the death of an alien his lands would, without inquest or office found, escheat and vest in the State, and there have been decisions of this court from which it might be inferred that prior to the act of 1854 (Paschal’s Dig., art. 45, et seq.) this rule still prevailed in Texas, we are aware of no decision under the fourteenth section of the statute of 1840, reenacted in the ninth section of the act of 1848, regulating descents, in which this harsh rule was actually enforced, and the claim of the heirs denied, because the ancestor was an alien. (Barclay v. Cameron, 25 Tex., 243; White v. Sabriego, 23 Tex., 246; Warnell v. Finch, 15 Tex., 169.) The section referred to is as follows: “ 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 hath been, an alien; and every alien to whom any land may he devised or may descend shall have nine years to become a citizen of [580] the Republic, and take possession of such land, or shall have nine years to sell, before it shall be declared to be forfeited, or before it shall escheat to the government.” (Paschal’s Dig., art. 44.) It has been decided by this court, in a case where the alien died in 1853, whilst the statute was in force unmodified, and prior to the act of 1854 defining the civil rights of aliens, a case in which the question was directly presented, argued, and considered, that the common-law rule, that an alien cannot cast descent, did not prevail in Texas. (Settigast v. Schrimpf, 35 Tex., 323. See, also, Sabriego v. White, 30 Tex., 576.) The question having been thus decided, we are aware of no sufficient reason for reopening the subject, for the purpose of inquiring into the correctness of that decision. It may be, that we would not, if it were an original question, be able to concur in that construction of the statute. If so, it certainly would have been with regret that we enforced a rule so harsh, where the heirs of the alien were, or had become, citizens of the United States. The course of events has long since removed all disabilities of alienage as to citizens of the United States, and has also led to the enactment of a statute which expressly authorizes an alien to “ take and hold any property, real or personal, in this State, by devise or descent from any alien or citizen, in the same manner in which citizens of the United States may take and hold real and personal estate by devise or descent within the country of such alien.” (Paschal’s Dig., art. 46.) It, certainly, is not now the policy of our State to absolutely prohibit an alien from holding lands, or from transmitting them on his death. Under these circumstances, we are satisfied to follow the decision in Settigast v. Schrimpf, and hold, that in 1852 the lands of an alien did not upon his death escheat to the State, but descended to his heirs, subject to escheat, however, on proceedings instituted by the State, if those heirs were aliens, and failed to comply with the terms of the statute. The answer setting up the alienage of John [581] Spear constituting no defense, the court did not err in excluding evidence in its support. It may not be amiss, however, to add, that the evidence offered was wholly insufficient to establish such alienage. John Spear, it appears from this excluded evidence, was born in Ireland, of Irish parents, who came with him to Ohio whilst he was a minor. After he was grown, he spent some years in Brazil, returned to Ohio, and thence, in 1840, came to Texas, where, in 1841, he acquired, by purchase, the land in controversy, and where he remained up to his death, in 1852. We think these facts create a presumption that he was naturalized. Under the Constitution of the State he was deemed a qualified elector, having resided in the State six months before the acceptance of the Constitution by the Congress of the United States. (Const., art. 3, sec. 2.) Even if his alienage had constituted a valid defense, the case would not be reversed, because of the exclusion of evidence which was wholly insufficient to support a verdict on that ground. At his death, his heirs were a half-sister, Elizabeth, born in the United States, and married to Joseph Williams, a native of the United States, and the children of a deceased sister, Sarah, who were born in the United States—all living in the United. States. Besides the plea of alienage, there was another defense, in the nature of a cross-bill. Mrs. Williams having died, this suit was brought by her surviving husband and children, and the descendants of the full-sister, Sarah. This answer alleges that “ about the year 1854, Joseph Williams and his wife Elizabeth, who are the father and mother of the plaintiffs, Eva M. Williams, Iona V. Williams, and Ernest M. Williams, employed one James Mahood to attend to the interest of the said Elizabeth in the estate of John Spear, deceased, in the State of Texas, as well as to attend to other business of the said Elizabeth in said State, and in consideration of said services agreed to give to said Mahood one-half of such property as he should secure to her, or to give to him one-half of the [582] proceeds thereof; that said Mahood, at great expense to himself, came to Texas and took out letters of administration upon the estate of John Spear, deceased, and attended to the same faithfully, whereby the lands in controversy were secured to said Elizabeth; that said James Mahood attended to other business for the said Elizabeth; that the said Joseph Williams and Elizabeth, his wife, were poor, and unable to compensate the said Mahood for his services, except through the property which should come to the said Elizabeth in the State of Texas; that in order to enable the said Mahood to secure his compensation for his services aforesaid, the said Joseph and Elizabeth Williams, about the month of February, A. D. 1861, conveyed the land now sued for to said Ma-hood by deed; that afterwards, the said Mahood conveyed the same to this defendant; that the defendant paid to said Mahood the full value and price of this land, to wit, about the sum of seventeen hundred dollars, one-half of which sum the said Mahood appropriated to the payment of his debt aforesaid; and this defendant prays, in case it should be adjudged that the plaintiffs have the better title to the land in controversy, that then this defendant have a judgment against them for his money so paid, or for such part thereof as may be equitable.” It appears, by the bill of exceptions, and seems conceded as a fact, that the deed from Williams and wife to Mahood was not acknowledged, as required to make it a valid conveyance of Mrs. Williams’ estate, and for that reason evidence as to the execution of such a deed was excluded. The court thereupon excluded all evidence in support of the other averments of said plea as irrelevant. Rejecting, as we must do, the averment of the execution of a deed by Williams and wife, the remainder of the answer, or cross-bill, contains no averments showing a moneyed indebtedness of Williams and wife to Mahood, on which to base his claim to the relief asked for, to wit, a moneyed judgment. It sets up matters, also, to the investigation of which Mahood was a proper and necessary [583] party. As the answer was totally defective and insufficient to authorize the relief asked for, it was rightly held, that evidence in its support would not be heard. It is claimed, in appellant’s brief, that he was erroneously precluded from proving the value of his improvements. But the record does not show that there was any suggestion of improvements in good faith, or any evidence on that subject offered or excluded. We see no error in the judgment, and it is affirmed. Affirmed.