Heirs of Holliman v. Peebles

• Decision Date: 31 December 1847
• Citation: 1 Tex. 673
• Parties: THE HEIRS OF KINCHEN HOLLIMAN v. ROBERT PEEBLES
• Court: Texas Supreme Court

1 Tex. 673

THE HEIRS OF KINCHEN HOLLIMAN

v.ROBERT PEEBLES

Supreme Court of Texas.

December Term, 1847.

Appeal from Fort Bend County.

Where it appeared that an individual had, under the colonization law of 1823, received a league of land as a colonist and head of a family from the government of Mexico, but had never at any time had a permanent domicile nor introduced his property into the country, and had finally abandoned the same and died in the state of Mississippi, prior to the Texas revolution: Held, that he was not entitled to the land so received by him, and that his heirs, being aliens, could not under the laws of Mexico maintain an action to recover the same. [2 Tex. 261;4 Id. 187;5 Id. 211;8 Id. 173;10 Id. 168;20 Id. 556, 568;26 Id. 24.]

Under the first contract of the empresario, Stephen F. Austin, the ayuntamiento had authority to investigate the conduct of colonists relative to the performance of the conditions attached to their grants; and upon the facts as ascertained by the ayuntamiento and the certificate of the empresario, the commissioner was justified in regarding the lands as vacant and issuing titles therefor to other colonists.

No proceeding in the nature of “office found” was necessary to resume a grant where the party to whom it was made had abandoned the country. The fact of the abandonment ipso facto vacated the land and restored it to the mass of public domain. [2 Tex. 78;10 Id. 168;22 Id. 155.]

This action was brought on the 12th day of December, 1840, to recover a league of land of which the plaintiffs alleged their intestate died seized, by virtue of a title derived by him as a colonist from the government of Mexico.

The defendant in his answer denies all right or title of the plaintiffs to the land, and avers that if their intestate ever had any title thereto, the same was vacated and rendered void by his abandonment of the republic of Mexico and that a good title was made to the defendant; and further, that if the said Holliman ever had any title, the same was declared to be forfeited and revoked by the proper authorities of the country and a title good in law and equity made to the defendant. The pleas of prescription and of alienage of the plaintiffs were also set up in the answer.

Among the papers read on the trial was the deed under which the plaintiffs claim. This, in form and substance is similar to the titles usually issued to the colonists admitted under the first colonization contract of Stephen F. Austin. The petition of the deceased intestate states that he has removed to the colonial settlement of Stephen F. Austin with the intention of permanently establishing himself in that place, and prays that, being admitted with his family, he may be granted the quantity of land allowed by law. This petition having been referred to the empresario, he states that the applicant, Kinchen Holliman, is entitled to the favor he solicits, and can be admitted as a resident (recino) of the colony in consideration of his good qualities and circumstances, and notorious application to agriculture and the breeding of cattle and industry in general, and for these reasons and for that of his numerous family, he is entitled to a league of land.

The instrument goes on to show that Holliman was, on the 10th day of August, 1824, put in possession of the land (which was surveyed and its lines and corners designated) with all its rights, privileges and appurtenances for him, his heirs and successors; being notified at the same time of his obligations to settle and cultivate the same within the term of two years, as prescribed by law.

The defendant's title from the commissioner, Arciniega, dated the 27th day of June, 1831, among other matters recites in substance, that his petition to be put in possession of a league of land in conformity with a concession by the supreme government of the state is admitted; that the defendant, having denounced as vacant a league of land which had been conceded to Kinchen Holliman, and which league by his, the commissioner's, decree of a previous day, had been declared vacant according to the information of the empresario, Austin, and the resolution of the illustrious ayuntamiento of that jurisdiction. After the recital of the commissioner's powers, he proceeds in the name of the state to concede unto, and confer upon the defendant, and put him in possession, real and personal, of the said league of land with its lines and boundaries, being the same league which had been conceded to Kinchen Holliman, who had lost his right of property by the limitations expressed in the antecedent information, resolution and decree.

A copy of the proceedings of the ayuntamiento, had on the 15th day of December, 1830, embracing among other matters the resolution to which the commissioner refers, is sent up with the record. From this document it appears that the ayuntamiento took into consideration the subject of an official letter of the empresario, Austin, and examined the list of titles made by the said empresario in his first colony, for the purpose of determining who had complied with the conditions of their grants, and whose titles ought to be and are confirmed; and also who had not complied, either by abandoning the country or failing to cultivate and settle the lands in conformity with the laws. The ayuntamiento then unanimously declared that certain persons (naming them) never cultivated the lands granted to them, and having abandoned the country, the said lands shall be considered forfeited, and that the same did legally revert to the mass of lands belonging to the state, at the expiration of two years from the date of their titles, in conformity with the 23d article of the colonization law of 1823, and consequently, can be granted to other emigrants comprehended in the new contracts of colonization of the said empresario, Stephen F. Austin. The titles of several persons were then, after a separate examination of the conduct of each grantee, declared null and void, and their lands vacant in consequence of their abandoning the country, or of failing to cultivate and also abandoning the country. And, after the recital of some proceedings in relation to two large tracts of land, granted for the erection of mills, the action of the ayuntamiento on the title of the plaintiff's intestate is expressed in the following terms:

“Kinchen Holliman received as a colonist one league of land, situated on the right bank of the river Brazos, under title dated 10th August, 1824, which land the said Holliman has cultivated, but has failed to fix his domicile in this country; and also, all his property is in the state of Mississippi, from which place he is and has been in the habit of making annual visits and remaining a few months in this country; which course of conduct demonstrates a disposition not to comply with the object of the concession, but to evade the laws and retain possession of the land, contrary to the laws of the nation. The committee, therefore, recommend that the term of six months, counting from this day, be allowed to the said Holliman to remove with his property from the United States to this colony, for a permanent residence in the country; and in case he does so within the said term, that his title to the said lands be, and is confirmed; but should he fail to remove his property and permanently fix his domicile in the country within the said term, that the said league of land revert to the mass of vacant lands and the title be annulled.”

This report received the undivided approbation of the ayuntamiento, and was, therefore, confirmed in every particular.

A passport or letter of security dated 24th May, 1830, from the alcalde of the jurisdiction of Austin, authorizing Kinchen Holliman to visit the United States of the north and to return in ten months, was offered in evidence.

Several witnesses were examined, and depositions of others from the United States were read at the trial. The evidence of the witnesses examined sustained substantially the facts as found by the ayuntamiento. One of them stated that he and Holliman traveled together in the fall of 1829, from Mississippi to Texas, when he told witness he did not intend to remain in this country -- that he would come back and forth, and understood him to say that he would hold his land in that way. Another witness testified that he knew Holliman on the Brazos, in 1825, that he remained till he made a crop or two, when he returned to Mississippi; that the last time he saw him was in 1830, had frequent conversations about his residence, in which he told witness that he intended to live in Mississippi, and to keep some person on his land here; that he would not risk his property here; this was in 1826. It further appeared from the testimony that Holliman was a single man and had never been married, that he owned a plantation and a large number of negroes in Mississippi, only one of which he had ever brought to Texas, and that one he had subsequently sold.

The witnesses from abroad testify to the uniform declaration of Holliman from 1824, up to the time of his death, that he was a citizen of Texas; that he had taken the oath of allegiance to the Mexican government, and of his refusal for these reasons to vote at elections there; that he was in very bad health from his return to Mississippi, in 1830, to the time of his death in 1833, during which time he frequently expressed his desire and intention of returning to Texas to live there permanently; that he had never been married, and had no family but his slaves; that he resided the greater portion of his time in Mississippi, occasionally being absent; that he had a large property in Mississippi, and had not sold any of his possessions there at the time of his death. It further appeared from the evidence of his family physician, that for three years previous to Holliman's death, his health was very bad, and that it would not have been safe or...