Settegast v. Schrimpf

• Decision Date: 01 January 1871
• Citation: 35 Tex. 323
• Court: Texas Supreme Court
• Parties: J. SETTEGAST AND ANOTHER v. H. SCHRIMPF.

35 Tex. 323

J. SETTEGAST AND ANOTHER

v.H. SCHRIMPF.

Supreme Court of Texas.

1871.

1. After a foreigner by birth has duly declared his intention for the purpose of being naturalized as a citizen, it seems that he is invested, under the laws of this state, with all the rights of citizenship except the elective franchise; and therefore he could acquire real estate by purchase, and on his death could transmit it by descent to his children.

2. The fourteenth section of the act of January 28, 1840, regulating descents, and its re-enactment in the act of March 8, 1848 (article 44, Pas. Dig.), demonstrate that the rule of the common law which disables an alien from casting descent on an alien has not been in force in Texas. Sabriego v. White, 30 Tex. 576, cited on this point with approval.

3. S., a foreigner by birth, immigrated to Texas in 1851, and duly declared his intention for the purpose of becoming naturalized, but died in 1853, before the lapse of the period necessary to consummate his naturalization. In 1868, his children, who were minors under seventeen years of age at the time of his immigration, sued as his heirs for lands purchased by him in this state, and in their petition they alleged the above stated facts, as well as their own citizenship at the institution of this suit. The defendant demurred, and relied on the alienage of S., the plaintiff's ancestor, and his alleged incapacity to transmit title to the plaintiffs by descent. Held, that it was error to sustain the demurrer. Yates v. Iams, 10 Tex. 168, is not analogous to the present case.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The opinion of the court supplies a lucid statement of all facts involved in the rulings made. The plaintiffs and appellants were Joseph and Julius, the two sons of Wm. M. Settegast, deceased.

Henderson & Whitfield, for the appellants. The domicile of the ancestor of appellants was fixed by his removal from Prussia to Harris county, with his entire family. His national character was fixed by his declaration before the district court of Harris county, and his renunciation of his allegiance to his former prince. The domicile of a party's birth remains until a new one is acquired. Ex parte Blumer, 27 Tex. 734; Story, Conflict Laws, 61, § 48.

It will be observed that the father of the appellants had taken out his first papers of naturalization according to law, and died before the final papers were issued, and before the passage of the act of the thirteenth of February, 1854, the third section of which reads as follows:

“ART. 47. Any alien, being a free white person, who shall become a resident of this state, and shall, in conformity with the naturalization laws of the United States, have declared his intention to become a citizen of the United States, shall have the right to acquire and hold real estate in this state, in the same manner as if he was a citizen of the United States.” Pas. Dig.

This act was passed only about four months after the death of appellants' ancestor, but we conceive that it established no new rule, but was simply declaratory of what the law was before its passage. The removal of appellants' ancestor to Texas with his entire family, with the bona fide intention of becoming a citizen of the United States, coupled with a residence in Harris county of three years prior to his death, with his declaration taken in due form of law before the district court of Harris county, ipso facto constituted him and clothed him with all the rights of an American citizen, save that alone of voting. The government of the United States, in her controversy with Austria in the Martin Koszta case, assumes this position, and maintains it now as a principle of international law.

The case at bar is a stronger one than the one cited; for it has all the elements of the Koszta case, and the additional one that he removed with his entire family to Texas, one of the United States, with the intention never to return; that he was prevented by death alone from becoming a naturalized citizen of the United States. If he was not a citizen of the United States at the time of his death, of what country was he a citizen? Was it of Prussia? Certainly not, as by his declaration to become a citizen of the United States, he had renounced particularly his allegiance to Prussia. If not a citizen of the United States for all purposes except that of voting, he must be regarded as a cosmopolite, without the rights of and duties to any government.

Mr. Kent, in commenting on the rigorous rule of the common law against the rights of aliens, on page 23, vol. II, says: “The force of this rigorous doctrine of the common law is undoubtedly suspended with us, in respect to the subjects of those nations with whom we have commercial treaties, and it is justly doubted whether the common law be really so inhospitable, for it is inconsistent with the established maxims of sound policy and the social intercourse of nations. Foreigners are admitted to the rights of citizenship with us on liberal terms; and as the law requires five, and only five, years' residence, to entitle them and their families to the benefits of naturalization, it would seem to imply a right in the meantime to the necessary use of real property; and if it were otherwise, the means would be interdicted which are required to render five years' residence secure and comfortable.”

Then we assume that the ancestor of appellants, on arriving in Harris county, in the state of Texas, with the intention of becoming a citizen of the United States, had the undoubted right to purchase land for the purpose of a support, and for the comfort of his family.

The supreme court of the United States, in the case of Cross v. DeValle, 1 Wall. 8, say: “That an alien may take, by deed or devise, and hold against any one but the sovereign, until office found, is a familiar principle of law, which requires no citation of authorities to establish.”

The ancestor of appellants having purchased the land in controversy, took possession of it, paid for it, made valuable improvements thereon; the title to the same was in law and equity vested in him, and he having declared his intention to become a citizen, was by that act ipso facto a citizen of the United States, and that act of naturalization has a “retroactive effect, so as to be deemed a waiver of all liabilities to forfeiture, and a confirmation to his former title.” Vide,Osterman v. Baldwin, 6 Wall. 116;Jackson v. Beek, 1 Johns. Cas. 401.

We further assume that the intention of the ancestor having been established to change his former domicile by a residence of three years in Harris county, and his declaration, declared before a court of competent jurisdiction, to become a citizen of the United States, and his death before he was by law permitted to take out his final papers, the law will presume that to have been done which was intended to be done, and prevented only by the act of God. The law doth not require impossibilities. Especially will this be held to be the rule, where the contrary would work an irreparable injury to the appellants, who are now, and have been from their infancy, resident citizens of Texas, and work no injury to the appellee, nor objection by the state, which alone is interested in the property.

By the act of April 14, 1802, and the supplemental act of March 26, 1804 (Bright. Dig. pages 34 and 35), the sixth section of the latter act reads as follows: “When any alien, who shall have complied with the first condition specified in the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act, may die before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oath prescribed by law.”

These acts taken together have been construed as prospective in their operation, and apply to subsequent as well as previous naturalization. West v. West, 8 Paige, 433.

Then we assume under this act that the ancestor of appellant having taken out his preliminary papers under the act, that his two sons, Joseph and Julius, being minors under twenty-one years of age at the death of their father, on arriving at twenty-one years, and taking the oath prescribed by law, ipso facto became citizens of the United States, and that their naturalization on arriving at their majority, had a retroactive effect, so as to be deemed a waiver of all liability of forfeiture to the state, and a confirmation of their title to the land in controversy, acquired by descent through their father and mother, under the act of March, 1848, which law they claim secures to them the land.

We have presented the foregoing views and authorities upon the assumption that William M. Settegast was not, at the time of his death, an alien, incapable in law of casting his estate upon his two minor children, residents of Texas; but if in this we are wrong, and this court sustains the position of the court below, that upon the facts alleged William M. Settegast was an alien, it follows that his minor children, born abroad, and who immigrated with him to the country, were also aliens, and we will now proceed to discuss the question in that view of the case.

The act to regulate the descent and distribution of intestate estates, passed March 8, 1848 (Pas. Dig. art. 44), reads as follows: “In making title to land by descent it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate is, or hath been, an alien, and every alien to whom any land may be devised, or may descend, shall have nine years to become a citizen of the republic, and take possession of such land, or shall have nine years to sell the same before it shall be declared to be forfeited, or before it shall escheat to the government.”

At the time of...