McKinney v. Saviego
THIS case was brought up, by writ of error, from the district court of the United States for the district of Texas.
The case is stated in the opinion of the court.
It was submitted on printed arguments by Mr. Hale, for the plaintiff in error, and by Mr. Hughes, for the defendants.
The arguments involved many points of the old Mexican law, but the principal one was thus stated by Mr. Hale, in his additional brief:--
The plaintiffs, in their petition, describe themselves as aliens; and in the thirteenth instruction which they requested, they assume that both the female plaintiff and her mother were aliens to the republic of Texas, and that the former is still an alien to the United States. It is evident, therefore, that at the time of the death of Gertrudis Barrera, the female plaintiff was, with respect to the land in Texas, the alien child of an alien, and the first question is, could she take the estate by inheritance?
The tenth article of the general provisions of the constitution of the republic of Texas, Hart. Dig. p. 38, provides that 'no alien shall hold land in Texas, except by titles emanating directly from the government of this republic. But if any citizen of this republic should die intestate or otherwise, his children or heirs shall inherit his estate, and aliens shall have a reasonable time to take possession and dispose of the same in a manner hereafter to be pointed out by law,' &c. It is clear that the latter part of this provision, which gives to aliens a reasonable time to take possession and dispose of 'the same,' relates to the estate of a citizen of the republic, and not to that of an alien; and that the power given to the congress of the republic to point out the manner in which this disposition should be made, authorizes only laws relating to the estates of citizens. The 14th section of the act of January 28, 1840, cited in the original brief, should, therefore, be restricted to this case; and of this opinion were the supreme court of Texas, in the case of Cryer v. Andrews, 11 Texas, 181, where this clause of the constitution and this act are said to be 'in relation to the alien heirs of a deceased citizen.' The capacity of the alien children of an alien is thus left to be determined by the general prohibition of the constitution and by the principles of the common law, introduced into Texas, as a body, by the act of January 20, 1840, before the death of the plaintiff's ancestor. Hart. Dig. art. 127. And upon these, there can be no question that the female plaintiff, Pilar, being an alien, did not take the land in Texas, by descent, from her mother; and that the district court erred in giving the thirteenth instruction requested by her counsel.
Mr. Hughes contended that Gertrudis Barrera did not lose her land by removing to Tamaulipas before the declaration of independence, because the 8th section of that instrument was prospective. 'All persons who shall leave the country,' &c. Hart. Dig. 37.
Even if the land were liable to forfeiture, the 13th article, § 4, declared that 'the legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.' Until this was done, the title remained as it was.
The articles 585, 600, (Hart. Dig.) allowed an alien to take by descent. The 38th article allowed the alien heirs of citizens a reasonable time to dispose of their property; but this included alien heirs of an alien, because the section provides that it shall be no bar to a descent that one of the ancestors of the claimant was an alien.
Mr. Justice CAMPBELL delivered the opinion of the court.