Phillips v. Moore

• Decision Date: 01 October 1879
• Parties: PHILLIPS v. MOORE
• Court: U.S. Supreme Court

100 U.S. 208

100 U.S. 208

25 L.Ed. 603

PHILLIPS v. MOORE.

October Term, 1879

ERROR to the Circuit Court of the United States for the Eastern District of Texas.

This was an action by Moore against Phillips and Hancock to recover possession of a tract of land in Texas. There was a finding and judgment against the defendants, who thereupon sued out this writ of error.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. W. P. Ballinger for the plaintiffs in error, and by Mr. D. D. Atchison for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

This is an action to recover the possession of one-fourth of a league of land, situated in the county of Wharton, in the State of Texas. The plaintiff claims the land under a grant of the State of Coahuila and Texas, made in April, 1833, to one John Dinsmore, a colonist, under the contract with the Empresario Stephen Austin. The defendants assert title to it under a previous grant from that State, made in August, 1824, to one Bartlett Sims, a similar colonist. No question is raised as to the genuineness or validity of this grant to Sims, which was for one league; but, in May, 1828, he sold one-fourth of it, constituting the property in controversy, to one Kinchen Holliman, a resident and citizen of Mississippi, who never became a resident or citizen of Mexico or Texas. In 1833, Dinsmore presented a petition to the commissioner of the State appointed to distribute lands to the colonists, and to issue titles to them, in which he denounced the tract thus sold as vacant land, by reason of the non-residence and alienage of Holliman, and prayed a grant of it to himself. Upon reference of the petition to the agent of the empresario and to the alcalde of the place, the sale of the premises to Holliman and his alienage and non-residence were officially established, and their opinion obtained that he could not, under the laws, retain a right to the tract. The commissioner thereupon declared the land to be vacant, and conceded it to the petitioner, and directed that a survey be made of it, preparatory to the issue of the title. Such survey having been made, a formal document, as evidence of the transfer of the title, was issued to the petitioner, by which the commissioner, in the name of the State of Coahuila and Texas, granted to him the property in question. The validity of this grant is the principal question presented for our determination.

The contention of the defendants is that the sale of Sims to Holliman was invalid by reason of the latter's alienage and non-residence, and as a consequence that the title did not pass to him, but remained in Sims, and the tract sold was not subject to be regranted as vacant land.

There is some conflict of opinion in the decisions of the Supreme Court of Texas as to the effect upon the title of a sale of real property to a non-resident alien. Language properly applicable to grants to aliens under the colonization laws, and the instructions to the commissioner under the contract with the Empresario Austin, has sometimes been used with reference to sales to them by private parties. Such grants to non-resident aliens were inhibited by positive statutory provisions, and for the obvious reason that the object of the colonization laws was to induce a settlement of the country by the introduction of persons who would cultivate the lands and become permanent residents; and this object would have been defeated, if such residence and cultivation had not been essential conditions upon which the bounty of the government was bestowed. For a similar reason, an abandonment of the country by the settler, after receiving his grant, without previous alienation of it, worked a forfeiture of the property, which immediately reverted to the mass of the public domain. The settler, after the performance of certain conditions, could, however, alienate his land, subject to some restrictions. In the early cases, particularly in The Heirs of Holliman v. Peebles (1 Tex. 673), an opinion was expressed, that under the laws of Spain, which remained in force in Mexico after her independence, and those subsequently enacted by her, an alien could not acquire real property in that republic. And in Clay v. Clay, in the 26th of Texas, the invalidity of a sale of land to a non-resident alien was expressly adjudged. But in the later case of Barrett v. Kelly, in the 31st of Texas, where land had been sold, in 1833, to citizens of the United States, then non-resident aliens, it was held that, unless there was an adjudication by some court or political authority...