Appeal from the United States District Court for the Southern District of Mississippi.
SKELTON, Senior Judge.
The facts in this case are fully set forth in detail in an able and exhaustive opinion of Judge Coleman of this court in a prior appeal of this case, reported in 510 F.2d 92 (5 Cir. 1975), as follows:
"This is an appeal by Hamilton E. McGowan, the defendant below, and a
brother of Elbert J. McGowan, deceased, from a judgment vesting an undivided one-half interest in thirty-seven acres of land in Clarke County, Mississippi, in Doretea Zaldivar V. De Tenorio, a non-resident alien, De Tenorio v. McGowan, 364 F.Supp. 1051 (S.D.Miss.1973). Appellee De Tenorio claims the land by inheritance from her deceased sister, who, in turn, allegedly inherited the land from her deceased husband, Elbert J. McGowan. Both appellee and her deceased sister had been and were resident citizens of the Republic of Honduras.
"Appellant argues that the widow lost her interest in the land by failing to comply with the requirements of a 1928 Treaty between the United States and the Republic of Honduras. He asks that title be confirmed in the defendants-cross-complainants.
"In 1911, by deed of conveyance, Elbert J. McGowan became the owner of twenty-seven acres of land in Clarke County, Mississippi. In 1915 he acquired, by deed, ten additional acres. These parcels constitute the thirty-seven acres here in question.
"Both deeds were properly recorded in the land deed records of Clarke County, Mississippi, on December 20, 1915. The District Court found that these conveyances vested E. J. McGowan with the fee simple Record title to this land.
"Between 1911 and 1914 E. J. McGowan left Mississippi and returned only twice, the last time in 1936. This was the last contact any member of the family is known to have had with him during his lifetime.
"After leaving Mississippi, E. J. McGowan returned to Central America, where, in 1940, he married Maria Obdulia Zaldivar, of Honduran nationality. Although there originally were claims to the contrary, abandoned during the course of this litigation, no children were born of this union. E. J. McGowan remained a United States citizen, but died intestate on October 31, 1957, in the Republic of Panama.
"Hamilton E. McGowan, of Vossburg, Mississippi, was a brother of Elbert J. McGowan. Elbert's United States passport designated Hamilton McGowan as the person to be notified in case of his death. In 1957, Hamilton was so notified by the United States Consul in Panama. This notification revealed that Elbert's effects had been placed in the hands of his widow, and listed other known relatives as two brothers, Hamilton E. McGowan, of Vossburg, and M. M. McGowan, of Jackson, Mississippi. After Elbert's death, no member of the family communicated with his widow or undertook to advise her concerning any land E. J. McGowan owned in the State of Mississippi. Neither did she, or her counsel, communicate with the McGowans. Silence reigned supreme on both sides.
"In 1958, after the death of her husband, Maria Obdulia Zaldivar McGowan left Panama, went back to Honduras, and lived there with her sister, the plaintiff-appellee here, until her death. While thus residing in the Republic of Honduras, Maria died intestate on February 28, 1969, without being remarried or having any children. At no time did she ever renounce her Honduran citizenship. She was survived by one sister, appellee De Tenorio, and one brother, Felipe. Maria's other brothers and sisters were of the half blood, and neither of her parents survived her death.
"It is undisputed that the taxes on the lands in question were never paid by Elbert J. McGowan, but were always paid by his brother, Hamilton E. McGowan. In addition to paying the taxes, Hamilton E. McGowan used the land, retained the profits, and acknowledged his brother's ownership of the land in a number of ways, such as failing to have the tax assessment changed to him as owner and by subscribing as a witness to an oil and gas lease purportedly executed by E. J. McGowan in 1939.
"In 1968, Hamilton E. McGowan filed suit in the Chancery Court of Clarke
County, Mississippi, asserting title in himself by adverse possession and seeking confirmation of his alleged title to the land. Elbert's widow, Maria Obdulia Zaldivar McGowan, was living at the time in the Republic of Honduras, but she was not named as a party to the suit, nor was she served with notice or process. A decree was entered on the complaint by default. This decree was asserted by the defendants-appellants in the District Court as Res judicata. The Court held that this decree was ineffective against Maria, Elbert McGowan's widow and appellee's sister, for lack of due process of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States, and applicable under the terms of the Treaty between the United States and Honduras. This holding is not challenged on appeal. The District Court further held that Maria Obdulia Zaldivar McGowan's interest in the land formerly owned by her husband, Elbert, could not be divested from her in the absence of Due process of law and Without just compensation. It concluded by a 'liberal interpretation' of the Treaty that Maria's heir, Dorotea, was entitled to the same protection." 510 F.2d 94-95.
Further pertinent facts are set forth in Judge Coleman's discussion of the law, as follows:
"The applicable Mississippi statute, Section 842 of the Code of 1942 (now Section 89-1-23 of the Code of 1972, which goes back to Section 2439 of the Mississippi Code of 1892) provides:
'Resident aliens may acquire and hold land and may dispose of it and transmit it by descent, as citizens of the state may;
but non-resident aliens shall not hereafter acquire or hold land * * *.'
"This statutory provision yields, of course, to any applicable provision of any valid Treaty of the United States with a foreign country, constituting a part of the Supreme Law of the Land, United States Constitution, Article 6, Clause 2, Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1879); Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947).
"The pertinent portions of the 1928 Treaty with Honduras read as follows:
'Article IV
'Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, and such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary * * *.'
"By the express provisions of the Treaty, McGowan's widow had until October 31, 1960, in which to sell the thirty-seven acres of land in Clarke County. The term for the exercise of that right might 'be reasonably prolonged if circumstances Render it necessary.' (emphasis ours).
"Prior to the cut off date, Mrs. McGowan took no action to sell the property, nor did she do so during the ensuing nine years. Indeed, although the record shows that Mrs. McGowan, the widow, was represented by counsel in closing her husband's affairs she died without making any inquiry or taking any action to sell the land.
"The case, then is reduced to whether under the Treaty the sister was entitled to a 'reasonable prolongation' of the sale period, Rendered necessary by the circumstances." 510 F.2d 95-96.
" * * * The laws of Mississippi flatly provided that the Widow McGowan could not inherit the land. The record is totally devoid of the slightest suggestion that
Hamilton McGowan had ever heard of the Honduran Treaty of 1928." 510 F.2d 97.
"We have already pointed out that from October 31, 1957, until February 28, 1969 eleven years and four months Mrs. McGowan made no effort to take any action whatever by sale or otherwise, with reference to the property inherited, with limitations, from her deceased husband.
"On what theory is it to be held, then, that this long term of inaction, almost four times the primary term prescribed by the Treaty, may at this late date be judicially prolonged as 'a matter rendered necessary by the circumstances?'
"The only reason advanced is that the widow McGowan did not know of the property owned by her husband, did not know the rights conferred upon her by the Treaty, and Hamilton McGowan failed to inform her of it, although, as already stated, there is no proof that he, a layman residing in Mississippi, had any knowledge of the Treaty.
"It seems likely that Mrs. McGowan did not know of the land, but the only proof to support this conclusion is the testimony of her sister, the present claimant to the property, who said that Mrs. McGowan never mentioned the existence of Mississippi or any property in it.
"Balanced against this is the fact that when her husband died in Panama, there was an intestate succession (administration) in that jurisdiction, in which the widow received all of her deceased husband's property in that jurisdiction, And was represented by counsel. Living with her husband, an American, for eighteen years she is bound to have known...
