Lee v. King
| Decision Date | 01 January 1858 |
| Parties | THOMAS B. LEE v. SAMUEL H. KING AND ANOTHER. |
| Court | Texas Supreme Court |
A sale made by order of the probate court on the petition of the administrator under the law of January 16th, 1843, Hart Dig. art. 1067, is good. Ante, 404; 18 Tex. 179.
The decision of the supreme court of the United States in the case of Calkin & Co. v. Cocke, 14 How. 227, determining that the constitution and laws of the United States were in force in Texas immediately upon her admission as a state, adopted, though not concurred in, by this court. 1 Tex. 542.
Appeal from Kaufman. Tried below before Hon. J. C. Robertson, Esq., special judge.
Action for trespass on land.
This cause was submitted to the judge upon an agreed statement in substance as follows: The plaintiffs are the children and heirs of W. P. King, to whom the land in controversy was originally granted and through whom both parties claim. That W. P. King having died, his succession was opened in 1841 and was regularly continued by the appointment of different administrators down to 25th July, 1842, when Frances A. King was appointed administratrix de bonis non of his estate and qualified and was continued until September, 1845, when, on the petition of several creditors of the estate, she was ordered by the probate court to sell the lands of her intestate, embracing the lands in controversy. On the 29th October, 1845, she resigned, and on the 27th day of December, 1845, N. Amory was appointed administrator de bonis non. On 30th December, 1845, Amory filed his petition in the county court alleging that the estate was indebted to various persons in large amounts, and prayed for an order to sell the lands in controversy, among others. On the same day the order was made, and after a full compliance with all the requisites of law governing probate sales at that date, the same was sold under the order made upon his application by the administrator in the proper county, on the 3rd day of February, 1846, and was purchased by Wm. M. Beal, who then resided in and was a citizen of New Orleans, state of Louisiana, for the sum of one thousand dollars, which was paid to the administrator; the sale and proceedings were reported to the county court as required by law and confirmed at its next session after the sale, and the lands conveyed by deed from said administrator to Beal. And that in April, 1852, Beal sold and conveyed the land to the defendant Lee.
There was a judgment for the plaintiffs. Motion for new trial made and overruled.
Donley & Anderson, for appellant.
I. The whole tenor of the American decisions is to the effect that the title of an alien friend to land purchased, is good against every body but the state and his rights vest in his representatives, and can only be divested by office found, or by some act done by the state to acquire possession. Jenkins v. Nael, 3 Stewart, 60; Craig v. Leslie, 3 Wheat. 589;Dor v. Robertson, 11 Wheat. 332; Dualey v. Grayson, 6 Mon. 260; Jackson v. Adams, 7 Wend. 367;Fairfax, devisee, v. Hunter's lessee, 7 Cranch, 603. And until the land is seized by the state the alien has complete dominion over it, and can convey it to a purchaser, or maintain an action to recover it. Bradstreet v. Supervisors, etc. 13 Wend. 546;Scanlan v. Wright, 13 Pick. 523.
II. Although Beal was a citizen of the state of Louisiana on the 3d of February, 1856, as there was no action on the part of the government to divest him of his title before annexation, that he then became a citizen of Texas, and even the state could not by inquest of office found, or otherwise, divest him or his vendee of the title to the land. In support of the first proposition, that he became a citizen, we will refer to Cryer and Wife v. Andrews, 11 Tex. 170, and in support of the second proposition, that upon his becoming a citizen that thereby he took the title absolutely even against the state, by relation to his purchase. Doe ex dem. Governeais Heirs, 11 Wheat. 342;6 Id. 614.
III. We submit that the constitution does not prohibit aliens from taking titles to lands, but only as holding against the republic; and that as they are not prohibited from taking title, that the prohibition is not strong enough to make a title void, but in fact goes only to show the extent of the common law.
In Craig v. Leslie, 3 Wheat. 587, Mr. Justice Washington comments very forcibly on the distinction between taking and holding, and shows we submit very clearly that the distinction is an important one. He elucidates the subject by showing the difference between the common law and the statute of 11 and 12 William III., and says: “the incapacities of a Papist under the English statute above and of an alien at common law are extremely dissimilar; the former is incapable to take by purchase any lands or profit out of lands; and all estates, terms, and any other interest or profits whatever out of lands to be made, suffered, or done, to or for the use of such person, or upon any trust for him, or to, or for the benefit or relief of any such person, are declared by the statute to be utterly void.”
After quoting the terms of the statute, Judge Washington continues, “Thus it appears that he cannot even take, * * *.” Now, what is the situation of an alien? He can not only take an interest in land, but a freehold interest in the land itself and may hold it against all the world but the king, and even against him till office found.
Jno. E. Cravens, for appellee.
I. The plea that the plaintiff is an alien interposed to a real action, or one for the recovery of the land, goes in general to defeat the right of action altogether upon principle of public policy which denies the right of an alien to inherit or hold land. Hardy v. De Leon, 5 Tex. 211. In support of this position Judge Wheeler cites the following authorities: Bac. Abr. Uses and Trusts, E. 2; 1 Id. tit. Aliens, 65; 7 Cr. Co. 3, 4; U. S. Cond. 347, n.; 1 Pet. C. C. 40. Subsequent to the delivering of this opinion, Ch. J. Hemphill, in the case of Lee v. Salinas, 15 Tex. 495, leaves the question open as to whether the plea of alienage shall be allowed to defeat a title acquired by purchase.
II. At common law an alien could not take title to land by descent or devise, and a will made disposing of land to an alien is void, and it will descend to the heir, or escheate to the government. Hunt v. Warmick's Heirs, Harden, Ky. 61; Jackson v. Lawn, 3 Johns. Ch. Cas. 109; 2 Kent, Com. 15; Orr v. Hayson, 4 Wheat. 452.
III. But an alien could take by purchase at common law and his estate was absolute, subjected only to the qualification that the estate might be defeated by a suit by the crown, or the government. He could not only defend his possession, but under the liberal view taken of this character of title by the supreme court of the state of New York in the case of...
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