State v. De Casinova

• Decision Date: 31 December 1846
• Citation: 1 Tex. 401
• Parties: THE STATE OF TEXAS v. JESUSA LEAL DE CASINOVA, ADMINISTRATRIX OF JUAN DE CASINOVA
• Court: Texas Supreme Court

1 Tex. 401

THE STATE OF TEXAS

v.JESUSA LEAL DE CASINOVA, ADMINISTRATRIX OF JUAN DE CASINOVA

Supreme Court of Texas.

December Term, 1846.

Appeal from Bexar County.

Where it appeared that a party, who was otherwise entitled to a headright certificate for one league and labor of land, left San Antonio with his family in 1842 (but with the intention of returning, as the witness believed), and went to Mexico with Gen. Woll and the Mexican army, after the invasion of that year, under the fear and apprehension that the Americans would kill him and his family if they remained behind; that he never did return, but died in the town of Presidio, on the west bank of the Rio Grande, being there on his return to Texas, with his family. And it further appearing that there was no averment or proof of the fact that he had not refused to serve during the war: Held, that his administratrix, in a suit brought to establish such headright under the 11th section of the law of February 4, 1841, was not entitled to recover; that the flight of the intestate to Mexico and his residence there was incompatible with the continuous residence in Texas, required by the laws of the republic, and was, under the circumstances, equivalent to a refusal to participate in the war.

The power given by statute to the district courts, to hear and determine applications for headright claims against the government, must be exercised in the special mode prescribed by the law. All the conditions, restrictions and limitations on such power must be strictly and literally complied with, otherwise no jurisdiction over the claim is vested in the court.

The applicants in such cases are required to make the same proofs and in the same manner as was prescribed by the land law of 1837, and in default thereof, the courts were virtually prohibited from confirming the claims.

By the terms “present time,” as used in the 12th section of the land law of 1837, and up to which the party was required to prove actual citizenship, was not meant the period of the passage of that law, but the time of the claimant's application, and this, whether such application was made to the board of land commissioners under the law of 1837, or by suit in the district court under the law of 1841.

In either case the continuous residence of the claimant, from the declaration of independence up to the instant of adducing the proof, must be shown.

When a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of present domicile, it becomes his place of domicile, notwithstanding he may have a floating intention to return at some future period.

Where the conduct of a party relative to inhabitancy, viz., intention of remaining while in the country, and certainty of returning on departure from it, was equivocal, he is not entitled to the liberality of the republic in its donations of lands.

The facts of this case are stated in the opinion of the court.

Harris, Attorney General, for appellant, contended:

1st. That the plaintiff should have alleged and proven that the intestate resided in Texas from the date of the declaration of independence to the time of the institution of this suit, which had not been done.

2d. There was no testimony to sustain the allegation in the plaintiff's petition (and which was denied by the answer prescribed by the statute) that she was administratrix.

3d. There was no testimony showing that the intestate had his family in the county before 1842.

J. Webb, for appellee. Argument omitted by the reporters.

HEMPHILL, C. J.

The appellee, as administratrix of the succession of Juan de Casinova, claimed under the 11th section of the act of February 4, 1841, “supplementary to an act to detect fraudulent land certificates,” etc., a certificate for a league and labor of land, and recovered judgment for the amount of her claim. It was proven “by witnesses, Manchaca and Rodrigues, that the plaintiff's intestate was a married man, residing in Texas at the date of the declaration of independence, and head of a family; that he did not abandon the country to avoid a participation in the struggle during the spring of 1836; that he did not aid or assist the enemy. The witnesses also proved that the plaintiff's intestate, with his wife and family, left the late republic in the campaign with Gen. Woll and the Mexican army, when they returned on the invasion of 1842; that the reason for the plaintiff's intestate and some others leaving was the fear and apprehension that the Americans would kill them when the Mexican army should leave. The witnesses also proved that the plaintiff's intestate never did return, but died in the town of Presidio, on the west side of the Rio Grande, he then being on his return to Texas with his family; that the fears and apprehensions of the deceased were caused in consequence of a rumor circulated and generally credited in San Antonio at the time of his departure, that the Americans had murdered the families of Jose Antonio Navarro and Jose Cardenas on the Guadaloupe, and had threatened to kill all the Mexican born citizens of San Antonio; that the deceased was a very old and infirm man, and left with the intention of returning, as the witnesses believed, so soon as the excitement which he feared should have subsided.

The question presented is, whether on the above facts, the applicant was, under the laws of the country regulating the subject-matter, entitled in her representative capacity to the certificate for which she applied.

By the 11th section of an act, entitled an act “To reduce into one act and to amend the several acts relating to the establishment of a general land office,” approved December 14, 1837, a board of land commissioners was created, with power to investigate all claims on the government for headrights to lands, and they were authorized to grant a certificate of the claims, on such proof being made as was required by that law. By the 11th section of an act supplementary to an act to detect fraudulent land certificates, approved February 4, 1841, 5 Laws, p. 171, individuals entitled to headright certificates of the first class are authorized to file their petitions in the district court, and on compliance with all of the formalities prescribed by that act, and on obtaining a verdict of a jury, etc., a certificate would finally issue for the proper amount of the claim. Under this section of the latter act the claim is made -- and one of the required formalities is, that it should be proven in the same manner as provided by the land law of 1837. The appellant alleges that it should have been averred and proven that the appellee resided in Texas from the declaration of independence up to the institution of the suit, and the appellee contends that the departure of the deceased from the republic is satisfactorily explained -- that he left animo revertendi, and did not lose any of his rights as a citizen by his absence.

It is not contended that the claim could be substantiated in any other mode or by any other proof than as is required by the laws authorizing the investigations to be made. It may be taken, then, as conceded that the power to hear and determine these applications against the government must be exercised in the special mode prescribed as a limitation on that power. The mode, then, becomes an essential ingredient of the authority; a condition precedent, on the performance of which the jurisdiction depends, and without which its exercise is contrary to law.

The power conferred must be pursued according to its terms; and its limitations as effectually prohibit the court from the confirmation of land claims not supported by the proofs required by the law, as if all other claims had been declared and rendered null and void by the proper authorities of the country. It is not to be understood, however, that they are null and void, but simply that they cannot be established except on proof of the facts designated by the statute.

Board of Land Commissioners v. Jesse Walling, Dallam, p. 524; John Smith T. v. The United States, 10 Pet. 327;Voorhees v. The Bank of the United States, Id. 450;Griffith v. Frazier, 8 Cranch, 9.

The question is not solely whether the claimant was entitled under the colonization law or by the constitution; but, in relation to the point now under examination, whether he can show that he was a citizen at the date of the declaration of independence, and continued so up to the time of this application. Before proceeding, however, with this examination, we will inquire into the true import of the terms “present time,” up to which the party must prove his actual citizenship, and whether by the phrase is meant the period of the passage of the land law, or of the claimant's application. The provision in which the terms are found is expressed as follows, viz.: “They shall also be required to prove by two or more good and creditable witnesses, as the commissioners may require, that they were actually citizens of Texas at the date of the declaration of independence, and have continued so to the present time.” We have given the subject an attentive examination, as doubts have been entertained as to the true construction, and from some dicta of the late supreme court, an impression was entertained that the date of the passage of the law was the intended period. This, it is believed, is an erroneous exposition. The proceedings before the commissioner must be regarded as one entire act. When the claim is under investigation the commissioners are to require proof of actual citizenship up to the present time. This cannot be rationally construed to be any other period than the very instant when the proof is adduced.

In the oath taken by the claimant, he swears that he had not “ previously received a title to his quantum of land.” If the oath had been that he had not, previously to the present time, received, etc., there could be no doubt that the...