Airhart v. Massieu

• Decision Date: 01 October 1878
• Citation: 25 L.Ed. 213,98 U.S. 491
• Parties: AIRHART v. MASSIEU
• Court: U.S. Supreme Court

98 U.S. 491

25 L.Ed. 213

AIRHART v. MASSIEU.

October Term, 1878

ERROR to the Circuit Court of the United States for the Western District of Texas.

The facts are stated in the opinion of the court.

Mr. John H. Reagan for the plaintiff in error.

Mr. John D. McPherson, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action of trespass to try title to land, being equivalent, in Texas, to an action of ejectment. The defendants in error were the plaintiffs below, and judgment being given in their favor, the case is brought here by writ of error. The petition in the action was filed on the 3d of June, 1872, and sets out that the plaintiffs are citizens of the Republic of Mexico, residing in the city of Mexico, and that on the 1st of July, 1869, they were seised in fee and possessed of a certain tract of land (containing eleven leagues), situated in the counties of Anderson and Freestone, on the right and left banks of Trinity River, stating the metes and bounds thereof; and that on that day the defendant, Airhart (now plaintiff in error), illegally ousted them, and continues to hold possession of the tract, to their damage.

The defendant demurred, and pleaded, 1st, not guilty; 2d, the Statute of Limitations for three years, in virtue of possession under regular title from the sovereignty of the soil, as to a certain portion of the land, containing 1,855 acres, giving the metes and bounds thereof, being the south part of E. C. Harris's survey; and the same plea as to another portion of the tract sued for (containing about 153 acres), giving the metes and bounds of the same; and disclaiming as to all the rest of the land sued for. The defendant further pleaded, 3d, the Statute of Limitations of five years, and payment of taxes as to the two tracts last named; 4th, the Statute of Limitations of ten years; and, 5th, adverse possession under an entry of title since 1850, and the erection of permanent improvements, for which he claimed compensation. Various amendments of the pleadings were subsequently added, which it is unnecessary to notice.

It appears from the various bills of exception taken in the case that the plaintiffs claimed title, 1st, under an eleven league grant, made by the government of Coahuila and Texas to one Jos e Ygnacio Aguilera, of the city of Mexico, on the 22d of March, 1830, and possessory title executed thereon by Commissioner Vicente Aldrete on the 26th of November, 1833; 2d, an act of sale of the said eleven leagues, passed on the twelfth day of March, 1836, in the city of Mexico, from the said Aguilera to Anna Matilda Massieu, a citizen of Mexico, then an infant, and who died in August, 1851, under age; and, 3d, descent to the plaintiffs as the heirs-at-law of said Anna Matilda, they being her mother and brothers and sisters, and all citizens of Mexico.

The defendant claimed title to the tract of 1,855 acres, mentioned in his pleas, under a grant from the State of Coahuila and Texas to Edward C. Harris, made Jan. 26, 1835, and through various mesne conveyances from said Harris to himself. He claimed title to the 153-acre tract (the other tract mentioned in his pleas), under a head-right grant made by the State of Texas to one Robert S. Patton, on the 4th of February, 1857, and through various mesne conveyances to himself.

The first question raised for the consideration of this court is that arising upon the alienage of the plaintiffs. This question was raised by the demurrer to the petition, so far as relates to their right to maintain an action for land. The subsequent proceedings raised the further question, whether, being aliens, they could inherit lands in Texas in 1851 from Anna Matilda Massieu, who was also an alien; and, if they could, whether they could continue to hold the title thereof without residing in Texas and becoming citizens. These questions may be conveniently considered together.

Texas, which, with Coahuila, had constituted a State of the Mexican Republic, declared her independence on the 2d of March, 1836; but the Mexican or Spanish law, except as to criminal cases, and except as modified by the congress, was continued as the law of the republic until the 16th of March, 1840, when the common law was adopted. By the common law an alien could indeed take land by purchase, but it would be liable to forfeiture to the king; and he could neither take nor transmit land by inheritance. Co. Litt. 2; 1 Bl. Com. 372; 2 id. 349; 3 Cruise, Dig. 365; Williams, Real Prop. 53; 2 Kent, Com. 53. It is conceded, however, by the counsel of the defendant, that important qualifications of this rule have always existed in the laws of Texas. The precise question is, whether a citizen of Mexico, not being a resident of Texas, but of some other Mexican State, owning lands in Texas at the time of the revolution, lost his title thereto, or his right to convey the same, or to transmit the same to his heirs, by means of the revolution, or by reason of subsequent legislation. The separation of Texas from the Republic of Mexico was the division of an empire. Up to the time of such division, all the citizens of the republic were citizens in every portion thereof, and had full right to hold property, movable or immovable, in every portion. If the revolution in Texas deprived the citizens of Mexico residing in other Mexican States of the right to hold and transmit their property situated in Texas, it amounted to confiscation. Did such confiscation take place by virtue of general international law, or by virtue of legislation adopted by Texas after its independence was declared? That such is not the general consequence of a division of empire, seems to be settled. Mr. Justice Nelson, delivering the opinion of this court in the case of Jones v. McMasters (20 How. 8), which related to a Texas title, says: 'The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired.'

The original constitution of Texas, adopted March 17, 1836, fifteen days after the declaration of independence, did, indeed, provide as follows: 'All persons who shall leave the country for the purpose of evading a participation in the present struggle, &c., shall forfeit all rights of citizenship, and such lands as they may hold in the republic.' Gen. Provs., sect. 8. But this did not refer to Mexicans residing elsewhere. The tenth section, however, declared as follows: 'No alien shall hold land in Texas except by titles emanating directly from the government of the republic; but if any citizen of this republic should die intestate or otherwise, his children or heirs shall inherit his estate; and aliens shall have a reasonable time to take possession of and dispose of the same in a manner hereafter to be pointed out by law.' So that, although it was declared that aliens should not hold lands in Texas, a reasonable time was to be given to them to come in, or dispose of their lands,—the last clause evidently referring to aliens generally, and not merely to the 'children and heirs' just referred to.

By an act of the congress of Texas, passed Jan. 28, 1840, it was provided 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 be devised or may descend shall have nine years to become a citizen of the republic, and take possession of such 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.' Oldham & White, 699, 700.

This statute has continued in force to the present time, being re-enacted in 1848. The State Constitution of 1845 effected no change in rights of property, but expressly established existing rights. Art. 6, sect. 20. By an act passed Feb. 13, 1854 (Pasch. Dig., arts. 45-47), it was further provided, in favor of aliens, that they should have the same rights as are accorded to American citizens by the laws of the nation to which such aliens belong; including the right to take and hold property, real or personal, by devise or descent from any alien or citizen. This law being passed subsequent to the death of Anna Matilda Massieu, cannot affect the present case, but is cited for the purpose of illustrating the spirit and course of Texas legislation on the subject under consideration.

Aguilera became an alien to Texas by virtue of the separation of that State from the rest of the Mexican Republic. His title to the lands in question had been lawfully acquired before this forced alienage commenced, and whilst his rights of citizenship extended to Texas as a portion of the Republic of Mexico.

At that time, as before stated, the Spanish law, as modified by the local laws of Mexico and of the State of Coahuila and Texas, was the general law of the infant State; and in some of the early cases in Texas, as in the Heirs of Holliman v. Peebles (1 Tex. 673), and in Yates v. Iams (10 id. 168), it was argued, though not expressly decided, that by the general Spanish law, and if not by that law, at least by the colonization laws of Mexico, and of Coahuila and Texas, a non-resident alien could not hold real estate. The same views were expressed in the case of McKinney v. Saviego, 18 How. 235. But the laws referred to had respect to the case of aliens who, when they were such, acquired, or attempted to acquire, lands in Spain or her colonies, and not to the case of citizens or subjects who, on the division of an empire, happened to hold lands in the section in which they did not reside, and therefore had good title thereto when, by operation of law, they became aliens as to such section. It must be admitted that aliens of this class stand on a different footing, in equity at least, from those who, being aliens, attempt, against the law, to acquire real estate in a foreign country. It may be a wise...