Mills v. Alexander

• Decision Date: 01 January 1858
• Parties: ELIZABETH MILLS AND OTHERS v. ROBERT ALEXANDER AND OTHERS.
• Court: Texas Supreme Court

21 Tex. 154

ELIZABETH MILLS AND OTHERS

v.ROBERT ALEXANDER AND OTHERS.

Supreme Court of Texas.

1858.

The mere return of a party to his native country does not operate an abandonment of a domicile he has acquired in a foreign country, unless there be an intention to change his domicile, and it rests on the party relying on the abandonment to prove it. 5 Tex. 245.

The fact that a party died in itinere on his return with his family to his native country, is not sufficient to create the presumption of abandonment of a domicile acquired elsewhere.

Where a party pleads certain special matter of defense, a court may exclude evidence of other special defenses. 11 Tex. 662.

Where an absent defendant was represented by a curator ad hoc, before the passage of article 127, Hartley's Digest, and judgment is obtained against him, it must be held until reversed or annulled by competent authority as binding on him and his heirs. 18 Tex. 753;24 Tex. 468;28 Tex. 443, 732.

A judgment cannot be impeached in a collateral action by proof that the person for, or against whom it is rendered, died before its rendition.

Where evidence does not ascertain the amount paid in a purchase, after lapse of time, it will be presumed that the purchase money was paid, and that the price was an adequate one.

Where one seeks to avail himself of the illegality of the contract of his ancestor, to recover land sold in his lifetime, he must restore the price and place the party against whom he asserts it in statu quo. 1 Tex. 748; 9 Tex. 385;10 Tex. 113;16 Tex. 76;27 Tex. 393.

Error from Austin. Tried below before Hon. J. H. Bell.

Trespass to try title by the plaintiffs, commenced 10th May, 1854, for the league of land granted to Willis Stanly, in 1831, as his headright. The plaintiff Elizabeth claims as the surviving widow of Willis Stanly, deceased, and the others as his heirs. The defendants demurred, pleaded not guilty, limitation, and that Willis Stanly died an alien, and that the plaintiffs were also aliens at the time of the death of their ancestor.

The land in controversy was granted to Willis Stanly in 1831; between that time and 1833, when he died, he sold the land to different persons. He died in the winter of 1833, in the state of Louisiana, while on his way to his father's-in-law, in the state of Arkansas. At the time of his death he had with him some of his family, but whether or not all, is not shown by the evidence. On the trial the defendants introduced the record of a decree in a suit by Horatio Chrisman, assignee of Hommedieu, v. John C. Watrous, curator of Willis Stanly, rendered at the November term, 1839, of the district court of Austin county, ordering said curator to make a deed to Chrisman, through whom most of the defendants claim, to thirty-two hundred and forty-four acres out of the headright of said Willis Stanly, and the deed made in pursuance thereof by the curator.

The court charged the jury as follows: “If Stanly, the original grantee of the land in controversy, left the country in 1832 or 1833, or 1834, with his family, and with the intention of abandoning the country, then his heirs are not entitled to recover the land in controversy in this suit, because the same did not pass to them by inheritance. Whether or not the ancestors of these plaintiffs left the country with the intention of abandonment is a question for the jury to determine from all the circumstances of the case. If he left the country with his family, and died out of the country, in the absence of further proof, the presumption of law would be, that he had abandoned the country; and such presumption could only be rebutted by proof that he had left the country intending to return; that he had preserved a home in the country, to which his family returned after his death; or by proof of other circumstances which would destroy the presumption of abandonment.

The sale of the land by Stanly in the years 1831 or 1832, or 1833, was in contravention of law, but if he received payment for the land, from those now in possession, or from those from whom those now in possession claim, his heirs cannot invoke relief from the illegal contract as against those in possession of the land, without offering to do justice to them by paying back the purchase money, which was the consideration for the original, illegal contract, and this rule of the law is binding on married women and minors. The contract between Stanly and Hommedieu was a contract, the illegality of which cannot now be inquired into, since the contract was sued on, and a decree of a court of competent jurisdiction obtained enforcing the same, which decree is conclusive upon all parties concerned, and can only be attacked for fraud in the procurement of it.” The remainder of the charge was in relation to the pleas of limitation.

There was a verdict for defendant and judgment, from which the plaintiffs prosecuted a writ of error.

N. Holland and G. W. Smith, for plaintiffs in error. The first instruction is deemed erroneous, because it is misleading in its nature; and led the jury to believe that all these plaintiffs claim as heirs of Willis Stanly, deceased; the fact is, Elizabeth Mills claims in her own right and as the surviving widow of the deceased; and further, because it is believed not to embrace a correct principle of law. The fact of leaving the country with his family with the intent to abandon it, could not effect a change of domicile, until he had acquired another domicile or home in a foreign country. The proof was that he died in itinere or in Louisiana, on his way to the home of his father-in-law, who resided in Arkansas. Animo and facto, that is, the intention and fact of removal effect the change of domicile, and if either be incomplete then the domicile is not changed.

The other instruction is believed also to be erroneous. This dispenses with the proof of both the intention and fact of removal in a great measure. The rights of the citizen are not to be defeated and forfeited by vague and doubtful presumptions of law. The facts that work a forfeiture of rights should all be clearly and conclusively proven. Hardy et al. v. De Leon, 5 Tex. 245. It is believed that these instructions had a material control of the jury, and caused them to find an improper verdict, at least as to the twelve hundred acres that defendants could show no claim to.

The defendants set up their defense, as before stated, specially and under the rule settled in the case of Rivers v. Foot, 11 Tex. 662, they could not have been heard to make any other in proof. But if the defendants can ask that the purchase money be refunded, they should have shown in their pleadings what was paid, and then proved it, neither of which is done properly. There is no averment of the amount paid. The evidence is that of Lewis to the declarations made by Stanly; that one-half the league was given to clear out the league and paying expenses; that a valuable consideration was paid for the other tract, which may have been from one cent to an indefinite amount. Such testimony, I presume, will not be regarded as sufficient.

The plaintiffs, like administrators, are not presumed to know the terms and nature of the transactions of the deceased; but that the defendants who pretend to claim under these sales, are presumed to be informed of their nature and terms, and should have set them out in their answer, so that plaintiffs could have offered and refunded the purchase money, if equitable so to do, and to have had an adjustment of rents, etc.

Frank Lipscomb, for defendants.

I. If plaintiffs in error's ancestor abandoned the country with his family, they are thereby precluded. As to abandonment of the country, see Holliman v. Peebles, 1 Tex.; Horton v. Brown, 2 Tex.; Ximines v. State, 1 Tex.; Yates v. Iams, 10 Tex. The moment a foreign domicile is abandoned the native domicile is re-acquired. The native domicile easily reverts. Story, Conf. Laws, art. 46. The domicile of a married woman is the domicile of the husband, and the domicile of minor children is the domicile of the father. 11 Pick. p. 410; Story, Conf. Laws, p. 53 et seq. If the plaintiffs were aliens at the death of their ancestor they cannot recover. Yates v. Iams, 10 Tex. and other cases.

II. If the plaintiffs in error were aliens at the death of their ancestor, they could inherit nothing by the Spanish law. Yates v. Iams, 10 Tex. 168, and a case lately decided from Bastrop, not reported.

III. By lapse of time and other causes plaintiffs have put it out of their power to restore the parties to their original rights, and on this principle they are checked by the law as laid down in Hunt v. Turner, 9 Tex. 386, “that a party to an illegal contract will not be permitted to avail himself of its illegality, until he restores to the other party all that has been received from him on such illegal contract; he cannot hold on to the advantages of such a contract, and at the same time be heard with favor in setting up its nullity.” From the lapse of time before the institution of this suit--nearly or quite twenty years--are not the heirs presumed to have ratified the sale, though it may be illegal? It is not insisted that the contract to sell, prior to the 26th March, 1834, was legal, though a colonist might, by the colonization laws, sell his lands if the purchaser fulfilled all the requirements of the law.

In regard to the proceedings against the curator, Watrous, the same are regular and in accordance with the law and established practice at that time; and, as said by Judge Hemphill, in Kegans v. Allcorn, 9 Tex. p. 25, we think the same might be said in this case: “The security of property, the repose of society, public policy, require that the proceedings of the courts in former times, under which rights were supposed to have vested and on the faith of which property has been transmitted, should be upheld whenever this may be done without doing violence to the established...