Lockhart v. Republic of Texas

2 Tex. 128 | Tex. | 1847

Mr. Chief Justice Hemphill

delivered the opinion of the court, Mr. Justice ’Wheeler not sitting.

There are some minor points in this case which are controlled by former decisions; but the principal question is, whether the successor of a single person, who resided in Texas, but died before the declaration of independence, is entitled under the laws of the country to a grant from the government of one-third of a league of land. We have been referred to no authorities which indicate the age to be attained by an unmarried claimant before he is entitled, under the laws of colonization, to a headright grant, as a colonist, from the government. No usage or custom on the subject matter has been referred to or proven.

The articles cited from the colonization law of 1825 confer on unmarried or single men the right to a portion of the public domain, but the age at which this right ac«crues is not specified.

The judge of the court below charged the jury, in effect, that the descendant should have been twenty-one years of age to enable his representative to sustain the claim. We are satisfied with this instruction, as we are not informed of any law which would legitimately entitle an unmarried colonist, under that age, to obtain a headright grant to land. The claim cannot be sustained under the constitution or the law of 1837, without giving them a retroactive effect, and, from the 22d section of this latter law, we may infer the opinion of the legislature, that, unless under sjiecial circumstances and provisions of law, single men were not entitled to land as a head-right until arriving at twenty-one years of age; for the various ages at which, under the laws of Spain, certain acts could be legitimately done, or franchises and offices enjoyed. See 1 White’s Recop. 3, 5; El Diccionario, p. 198.

There being no error in the judgment of the court below, let the same be affirmed.