John Kinney, Plaintiff In Error v. Manuel Saviego, and Pilar, His Wife
| Decision Date | 01 December 1855 |
| Citation | 59 U.S. 235,15 L.Ed. 365,18 How. 235 |
| Parties | JOHN F. McKINNEY, PLAINTIFF IN ERROR, v. MANUEL SAVIEGO, AND PILAR, HIS WIFE |
| Court | U.S. Supreme Court |
THIS case was brought up, by writ of error, from the district court of the United States for the district of Texas.
The case is stated in the opinion of the court.
It was submitted on printed arguments by Mr. Hale, for the plaintiff in error, and by Mr. Hughes, for the defendants.
The arguments involved many points of the old Mexican law, but the principal one was thus stated by Mr. Hale, in his additional brief:——
The plaintiffs, in their petition, describe themselves as aliens; and in the thirteenth instruction which they requested, they assume that both the female plaintiff and her mother were aliens to the republic of Texas, and that the former is still an alien to the United States. It is evident, therefore, that at the time of the death of Gertrudis Barrera, the female plaintiff was, with respect to the land in Texas, the alien child of an alien, and the first question is, could she take the estate by inheritance?
The tenth article of the general provisions of the constitution of the republic of Texas, Hart. Dig. p. 38, provides that &c. It is clear that the latter part of this provision, which gives to aliens a reasonable time to take possession and dispose of 'the same,' relates to the estate of a citizen of the republic, and not to that of an alien; and that the power given to the congress of the republic to point out the manner in which this disposition should be made, authorizes only laws relating to the estates of citizens. The 14th section of the act of January 28, 1840, cited in the original brief, should, therefore, be restricted to this case; and of this opinion were the supreme court of Texas, in the case of Cryer v. Andrews, 11 Texas, 181, where this clause of the constitution and this act are said to be 'in relation to the alien heirs of a deceased citizen.' The capacity of the alien children of an alien is thus left to be determined by the general prohibition of the constitution and by the principles of the common law, introduced into Texas, as a body, by the act of January 20, 1840, before the death of the plaintiff's ancestor. Hart. Dig. art. 127. And upon these, there can be no question that the female plaintiff, Pilar, being an alien, did not take the land in Texas, by descent, from her mother; and that the district court erred in giving the thirteenth instruction requested by her counsel.
Mr. Hughes contended that Gertrudis Barrera did not lose her land by removing to Tamaulipas before the declaration of independence, because the 8th section of that instrument was prospective. 'All persons who shall leave the country,' &c. Hart. Dig. 37.
Even if the land were liable to forfeiture, the 13th article, § 4, declared that 'the legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.' Until this was done, the title remained as it was.
The articles 585, 600, (Hart. Dig.) allowed an alien to take by descent. The 38th article allowed the alien heirs of citizens a reasonable time to dispose of their property; but this included alien heirs of an alien, because the section provides that it shall be no bar to a descent that one of the ancestors of the claimant was an alien.
The defendants (Saviego and wife) claimed, in the district court, two and one half leagues of land lying in the counties of Goliad and Refugio, in Texas, as an inheritance of Madame Saviego, from her mother, Gertrudis Barrera, who died in Matamoros, in Mexico, in 1842.
Gertrudis Barrera acquired, in 1834, one league of the locus in quo by donation, and the remainder by purchase under the colonization laws of the State of Coahuila and Texas, while it formed a part of the republic of Mexico. She occupied and improved the land until the commencement of the revolutionary movements in Texas, in 1835, but prior to the declaration of independence in that year she emigrated and became a resident of Matamoros, where she continued until her death. The plaintiffs were also citizens of Coahuila and Texas, but abandoned their connection with Texas in company with their ancestress, and have retained their status as Mexican citizens.
They are described on the record as aliens and citizens, and residents of the city of Matamoros, in the State of Tamaulipas, in the republic of Mexico. The defendant claimed the land by virtue of locations and surveys of valid land certificates, which had been regularly returned to the general land-office, in Texas, before the 31st August, 1853.
A number of questions are presented in the bill of exceptions, but the opinion the court has formed upon the 12th, 13th, and 14th instructions, given at the instance of the plaintiffs, in the district court, renders it unnecessary for us to consider any others. These instructions are as follows:——
'12. If Gertrudis Barrera was a citizen of the republic of Mexico, domiciliated within the State of Coahuila and Texas when the land in question was granted to her, her abandonment of the State of Coahuila and Texas, and settlement in Matamoros, in the State of Tamaulipas, after the commencement of the revolution in Texas, and before the declaration of Texan independence, was not a forfeiture of the land so granted, nor did the land thereby become vacant; and after the close of the revolution in Texas, she would have been authorized to enforce her right, had she then been living.
'13. If Madame Barrera died in Tamaulipas, in 1842, then being a citizen of the said State of Tamaulipas, domiciliated there, and the female plaintiff was her only heir, she too being a citizen of, and domiciliated in Tamaulipas, said heir could and did take, by the law here, the land in contest, by descent, and had a right to enforce her title by descent, to the same extent that her ancestor could have done, but subject, as she is an alien, to forfeiture by proceedings on the part of the State.
It is settled, in the jurisprudence of Texas, that the colonization laws of Coahuila...
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