Warnell v. Finch

• Decision Date: 01 January 1855
• Citation: 15 Tex. 163
• Parties: JOHN WARNELL v. MATT S. FINCH.
• Court: Texas Supreme Court

15 Tex. 163

JOHN WARNELL

v.MATT S. FINCH.

Supreme Court of Texas.

1855.

The clause of the 10th section of the general provisions of the constitution of the republic, which declared that if any citizen should die intestate or otherwise, his children or heirs should inherit his estate, and that aliens should have a reasonable time to take possession of and dispose of the same, in a manner thereafter to be pointed out by law, was prospective merely, and did not operate in favor of alien next of kin of those who had previously died or been slain.

The clause of the 10th section of the general provisions of the constitution of the republic, which declared that “orphan children whose parents were entitled under the colonization laws of Mexico and who now reside in the republic, shall be entitled to all the rights of which their parents were possessed at the time of their death,” did not extend to orphans who did not reside in Texas “at that time.”

Where Henry Warnell, whose wife was dead, emigrated to Texas in 1834, from Arkansas, leaving there an only child, an infant, and was slain with Travis in the Alamo, and a certificate was issued by the board of land commissioners in 1838, to “the heirs of Henry Warnell,” and a patent thereon was issued in 1841 to “the heirs of Henry Warnell,” it was held, in a suit by the child, commenced on the 6th of March, 1855, to recover the land, that although he could not claim the land by descent, on account of his alienage at the time of his father's death, yet that he was entitled to recover under the description of heir, in the certificate and patent, on the ground that the laws which provided for the issuance of certificates and patents to the heirs of those who fell under Fannin, Grant, Travis, Ward and Johnson, by the term heirs meant those persons who stood in such relation to the deceased, that they would be entitled to the inheritance under the general rules of descent and distribution. [10 Tex. 506;post, 590; 28 Tex. 134.]

Appeal from Bastrop. The suit was commenced on the 6th of March, 1855. The facts appear in the opinion.Turner & Sneed, for appellant. The question of an alien's capacity to inherit is not presented by the record, and the decision below was clearly erroneous. The petition alleges the title by descent in plaintiff by virtue of a genuine certificate and patent; that the defendant holds forcible and unlawful possession, all of which is admitted by the demurrer.

Oldham & Terrell, for appellee. An heir domiciliated out of the republic of Mexico could acquire no right by inheritance to lands of persons dying in the province of Texas. (Yates v. Iams, 10 Tex. 168.)

Warnell, the ancestor, was entitled to lands under the colonization laws of Mexico; he died before the adoption of the constitution; the plaintiff, who claims as his heir, did not reside in the republic at the date of the constitution, and does not yet reside in Texas, and, to our mind, is, by the constitution, clearly excluded from the right to claim the land in controversy as heir.

LIPSCOMB, J.

This suit was brought to recover one-quarter of a league of land in Bastrop county.

The appellant, who was the plaintiff in the court below, alleges in his petition that he is a citizen of Johnson county, in the state of Arkansas; that he is the son and only heir at law of Henry Warnell, who fell with Col. Travis at the Alamo, in March, 1836, in the Texas revolution, as he is informed and believes; that the petitioner's father emigrated to Texas in the year 1834, after the death of petitioner's mother, leaving the petitioner an infant only a few months old; that on the 22d day of January, A. D., 1838, the board of land commissioners of Bastrop county, republic of Texas, issued a certificate, No. 49, for one-third of a league of land, to “the heirs of the said Henry Warnell;” that by virtue of a valid location on the 8th day of February, 1838, of the one-fourth of a league of the said certificate, a patent, No. 217, vol. 1, was issued on 1st day of May, A. D., 1841, by Mirabeau B. Lamar, president of the republic of Texas, to the heirs of the said Henry Warnell; the petition sets out the field notes of the said land, as contained in the patent; alleges that he is the only heir of the said Henry, and as such entitled to the land; that the defendant is in possession of the said land, and withholds the possession of the same from him, the petitioner, etc.

The defendant filed a general demurrer to the petition, which was sustained by the court.

The main ground on which the defendant relies for sustaining his demurrer is, that the petition shows that the plaintiff is an alien and incapable of holding land in Texas, that his ancestor having died before the adoption of the constitution of the republic, his claim of heirship does not come within the following provisions of the constitution, i. e.: “No alien shall hold land in Texas, except by titles emanating directly from the government of this republic. But if any citizen should die intestate or otherwise, his children or heirs shall inherit his estate, and aliens shall have a reasonable time to take possession of and dispose of the same, in a manner hereafter to be pointed out by law.” (Section 10, General Provisions.) It is contended that this provision in favor of alien heirs acts prospectively, and therefore cannot embrace the heirs of those who died before that time. This construction is believed to be correct. It is not doubted but the convention had power to have given a retrospective action, and provided for the heirs of those already dead, but we cannot infer such to have been intended by the terms of the provisions cited, or qualifications to the inhibition to aliens holding land is expressed in the constitution; nor can the right of the plaintiff be sustained under the subsequent provision of the same section: “that orphan children whose parents were entitled to land under the colonization laws of Mexico, and who now reside in the republic, shall be entitled to...