Kilpatrick v. Sisneros

• Decision Date: 01 January 1859
• Citation: 23 Tex. 113
• Parties: ELEAZER KILPATRICK ET AL. v. ROSALIA SISNEROS ET AL.
• Court: Texas Supreme Court

23 Tex. 113

ELEAZER KILPATRICK ET AL.

v.ROSALIA SISNEROS ET AL.

Supreme Court of Texas.

1859.

The civil status of all persons residing in Texas at the date of her declaration of independence, was fixed by the constitution of the republic. They (Africans, and the descendants of Africans and Indians, excepted) were declared to be citizens, and entitled to all the privileges of such.

Although the constitution also declared, that all persons who should leave the country to evade a participation in the struggle for independence, or refuse to participate in it, or should give aid or assistance to the enemy, should forfeit all rights of citizenship, and such land as they might hold in the republic; yet the adhering to the cause of Mexico, and going there to reside, did not ipso facto, and without any action taken by the government to declare the forfeiture, make them aliens, or vacate their titles, and restore their lands to the mass of public domain. 5 Tex. 211;9 Tex, 263, 556;15 Tex. 351;7 Tex. 338;24 Tex. 461;25 Tex. 258.

There is no more firmly settled or universally approved principle of law, than that a revolution works no change in previously vested rights of property, except in so far as the new political society may see proper to declare and effect a change, by a direct exercise of sovereign power. 5 Tex. 34.

The owners of land, acquired under the colonization laws, before the separation of Texas from the states of the Mexican confederacy, did not, consequently, incur the penalty of a forfeiture of their titles, as prescribed in the 30th article of the state colonization law of the 24th of March, 1825, against those who should establish themselves in a foreign country, by becoming or remaining domiciled in Mexico, after the dismemberment of the government.

It has been settled by repeated decisions of this court, to be a matter of public history of the country, of which the courts will take judicial notice, that Martin De Leon had authority to colonize within the coast border. 9 Tex. 55.

Tax deeds, void upon their face for want of certainty, and falsity of description of the land claimed, are not to be deemed deeds duly registered; and will not support the plea of the statute of limitations of five years. Nor are they evidence of title, or color of title, to sustain the plea of possession for three years, etc. Ante, 36.

When the defendant is claiming a part of a tract of land, to sustain his defense of the statute, it is incumbent upon him to show that he has had possession of the land claimed by him, under his deed, for the space of time required by the statute.

APPEAL from Victoria. Tried below before the Hon. Fielding Jones.

This was an action of trespass to try title, brought by the appellees, Rosalia Sisneros, widow of Juan Nepomicino Agaton Sisneros, Estavan Sisneros, son of said Juan, Eulalia Garza, and her husband Thomas Garza, Maria Guadaloupe Solis, and her husband Louis Solis (the said Maria and Eulalia being the daughters of the said Juan), against the appellants, Eleazer Kilpatrick, William C. Blair and Samuel A. White, for the recovery of a certain league of land, granted to the aforesaid Juan Agaton Sisneros, by the commissioner of De Leon's colony, on the 3d day of April, 1835.

The land sued for was described in the petition as situated in Victoria county, on the east side of the Guadaloupe river, commencing at the upper landmark of Jose Maria Rios, at a stake on the bank of the river, from which a forked cottonwood, six inches in diameter, bears north 16° west, 3 varas, and a mulberry, four inches in diameter, bears north 46° west, 1 vara; and thence with the upper line of Rios' survey, to the north 45° east, 10,265 varas, to a stake in the prairie for the second corner; thence north 45° west, 2,500 varas, to a stake for the third corner; thence south 45° west, at 7,700 varas, struck the margin of a swamp 8,924 varas to the bank of one arm of the river, where set a stake for the last corner; from which a white oak, thirty inches in diameter, bears north 16° east, 3 varas, and another, five inches in diameter, bears north 68° east, 7 varas; and thence following the meanders of the river to the place of beginning.

The answer of the defendants set up the following defenses: 1. The general issue.

2. That the land described in the plaintiffs' petition was sold by the sheriff of Victoria county, on the 3d day of November, 1841, and that H. Ledbetter and J. H. Beck purchased the same, through whom defendants, by mesne conveyances, became the owners.

3. That the defendants located and relocated the said tract of land as vacant public domain, by valid certificates and warrants, by which they became the owners of the land.

4. Plea of the three years' statute of limitations.

5. Plea of the five years' statute of limitations.

6. That they and their predecessors entered on the premises claimed by plaintiffs' petition, adversely to the plaintiffs, and that the plaintiffs did not enter on the said land within ten years, next after their right of entry accrued.

7. That the plaintiffs broke the conditions of their grant or title, by abandoning the country in the year 1836, and settling in Tamaulipas, one of the states of the Mexican government.

8. That the title set up by the plaintiffs was a nullity, because made in fraud of law, in this, that the territory in which the land lay, was at no time a part of De Leon's colony, as it purported in said title to be, but that it lay in the ten coast leagues, for which De Leon had no contract with the state or federal government, but was expressly denied the liberty by the governor of the state of Coahuila and Texas, to colonize the same.

Amended answers averred in substance, that the plaintiffs, Estevan and Eulalia, left the republic of Texas in the year 1836, and Rosalia and Maria in the year 1837, during the struggle for independence, and went into the government of Mexico, and there remained until the year 1848; whereby they forfeited all rights to citizenship in the late republic of Texas; and that they had not since been naturalized according to the laws of the country, and were now aliens. The amended answer also set up the statute of limitation of ten years.

The plaintiffs demurred generally to the sufficiency of all the several defenses, except the general issue.

An amended petition of the plaintiffs, filed by way of replication to the defendants' pleas of the statutes of limitation, alleged, that on the 29th day of March, 1849, there was instituted in the district court of Victoria county, a suit of trespass to try title, by Rosalia Sisneros, as administratrix of Juan Nepomicino Agaton Sisneros, v. Eleazer Kilpatrick and William C. Blair, and that the subject matter of that suit was the identical land now claimed and sued for in this action; that the said Rosalia, one of the plaintiffs herein, prosecuted the said suit for the benefit of the other heirs, and that the same was determined in the supreme court, on the 23d day of February, 1853, in favor of the defendants (see Blair v. Sisneros, 10 Tex. 34); and that this suit was brought within one year from the date of the determination of said suit.

On the trial, the exceptions of the plaintiffs to the fourth, sixth and seventh answers, and to the amendments, alleging abandonment and alienage, were sustained.

The plaintiffs, it was admitted, were the heirs of the grantee, Juan Nepomicino Agaton Sisneros, and the original grant from F. De Leon, commissioner of De Leon's colony, to the said ancestor, Agaton Sisneros, with a translation thereof, was read in evidence: this grant described the land, purporting to be thereby conveyed, by the same description and boundaries as set forth in the petition of the plaintiffs.

The defendants offered to read, in evidence, a certified copy from the records of the district court of Victoria county, of the return made by the sheriff of the said county of defaulting tax payers for the year 1839, from which it appeared that “Rosia Sirgneares” was a defaulter in the amount of $133.32, and that an execution was issued by the clerk of said court, on the 9th of June, 1841, to said sheriff, against said “Rosa Sirgneares,” for said sum of $133.32, due from her for taxes, as aforesaid. This execution was levied on the 12th of July, 1841, by the sheriff as was shown by his return “on one league of land, situated about fifteen miles below the town of Victoria, on the east side of the Guadaloupe river,” and was returned satisfied on the 8th of September, 1841; but by whom, or whether any disposition had been made of the land levied upon, did not appear from the said return.

The defendants, however, in connection therewith, offered in evidence, a deed by the said sheriff, to Hamilton Ledbetter and Joseph H. Beck, executed on the 8th day of September, 1841, which recited that the said sheriff had levied the said execution on a league of land, as the property of said “Rosia Sizinoris,” widow of “N. Sizenoris,” “known as the Sizenoris league, situate in the county of Victoria, on the east bank of the Guadaloupe river, about fifteen miles below the town of Victoria, and bounded as follows, to wit, on the southwest, partly by the Guadaloupe river, and partly by an island chute of said river, on the northwest by E. Galvaris' league, and on the southeast by a league of land known as J. M^a Rios' league, the same having been granted to N. Sixenaris, as a colonist, by the Mexican government.”

Also a certified copy of an execution issued by the said clerk, to the said sheriff, on the 14th of September 1841, against “N. Sixenoris,” as a defaulting tax payer, for the year 1840, for the sum of $177.12, which on the 15th of the said month, was levied on “one league of land, about twelve miles below the town of Victoria, on the east side of the river;” and the sheriff's return, which showed that it was “satisfied in full, by Joseph H. Beck and Hamilton Ledbetter, taking and...