Hornsby v. Bacon

• Decision Date: 01 January 1857
• Citation: 20 Tex. 556
• Parties: THOMAS HORNSBY AND OTHERS v. THOMAS S. BACON.
• Court: Texas Supreme Court

20 Tex. 556

THOMAS HORNSBY AND OTHERS

v.THOMAS S. BACON.

Supreme Court of Texas.

1857.

The provision of the constitution of the republic of Texas, that if any citizen of the republic should die intestate or otherwise, his children or heirs should inherit his estate, and that aliens should have a reasonable time to take possession of and dispose of the same, etc., was prospective in its operation, and did not include alien heirs of persons who had died previous to the organization of the republic. 1 Tex. 673;10 Tex. 168;post, 565.

The headright (one-third of a league) of one who died in 1835, patented in 1846, did not descend to his heirs who were citizens of the state of Mississippi, they having no capacity to inherit at the time of the descent cast.

A patent issued in 1846, to “the heirs” of one who died in 1835, inures to the benefit of those only who were heirs at the time of the descent cast, and not to those who afterwards acquired such capacity before the patent, by the removal of their alienage. It is otherwise in respect to the legislative grants to the heirs of those who fell under Fannin, Travis, Ward, Grant and Johnson. 15 Tex. 163.

Appeal from Williamson. Tried below before the Hon. R. E. B. Baylor.

The facts are stated in the opinion.

Hamilton, Chandler and Chalmers, for appellants, argued the points made as to the statute of limitations. II. The proof shows positively that Moses Hornsby died in August or September, 1835, at which time aliens could not inherit. 5 Tex. 212;11 Id. 168. The proof is equally clear that John W. and Felix Hornsby were at that time citizens of the state of Mississippi. The verdict was therefore contrary to law and the evidence.

I. A. & G. W. Paschal, for appellee. I. The right of the plaintiff's vendors is not controlled by the law of descents and distributions in force in 1835; and therefore it is unnecessary to examine whether an alien brother would inherit the real estate of his brother, or not. Because, first, Moses S. Hornsby had no land to inherit. Secondly, aliens might inherit personals, or mere equities against the government; and such government grants would inure to the benefit of the next of kin.

II. The right is not affected by the provision in the constitution, nor by the nine years law enacted to carry it out. Because, first, the constitution was intended to operate in futuro, and Hornsby was already dead. Secondly, before the right could have been lost to the alien heirs, annexation took place, and “the citizens of each state” became “entitled to all the privileges and immunities of citizens in the several states.” Thirdly, there is no proof that any escheat was ever claimed or prosecuted by the government of Texas. And eo instanti upon the naturalization, the right of the alien heirs related back to the date of the accrual of the right, whenever that was. Fairfax v. Hunter, 7 Cranch, 603;Jackson v. Beach, 1 Johns. Cas. 399, and 4 Johns. 75; Bradwell v. Weeks, 1 Johns. 206; Moore v. White, 6 Johns. Ch. 360; Fairfax v. Southwick, 12 Mass. 143. There is no proof as to when the certificate issued; under what law, whether general or special. Every presumption in favor of the verdict.

HEMPHILL, CH. J.

The appellee, Thomas S. Bacon, claiming under John M. & Felix Hornsby, sued Thomas Hornsby and others for the partition of a third of a league of land patented in 1846 to the heirs of Moses Hornsby. The petition alleges that Moses Hornsby died without children or surviving parents, leaving five brothers his heirs-at-law, viz.: Reuben, Thomas, Duke, John and Felix Hornsby. The defendants pleaded a general denial; that Moses Hornsby died in Texas in 1836; that the plaintiff and those under whom he claims, were at that time aliens, and have never since become citizens of Texas. They also pleaded the limitation of nine years as against aliens; of ten, five and three years, and one year with valuable improvements, etc.

From the statement of facts it appears in proof, that John W. and Felix Hornsby were brothers and heirs-at-law of Moses Hornsby, deceased. (This has been qualified by appellee's counsel, as intended to mean only that they were brothers of the deceased who died without legal descendants or ascendants living;) that their interest in the land had been conveyed by valid deed to the appellee; that Moses Hornsby died in Texas in August or September, 1835; that at the time of his death he was a single man without descendants; that he had five brothers living, viz.: those named in the petition; that John W. and Felix, two of the brothers, at the time of the death of Moses, were citizens of the state of Mississippi, and have ever since continued to reside in that state. The other facts are not important in the view we shall take of the case.

The plaintiff had judgment for partition. It is assigned: 1st. That the court erred in the charges asked by the plaintiff and given by the court. 2d. In refusing all of the charges asked by defendants. 3d. In overruling the motion for a new trial, for all of the causes specified in the motion.

I shall not refer specifically to the several instructions given or refused. The leading point in controversy, in the...