11 Tex. 460 | Tex. | 1854
Edward Russell, the ancestor of the plaintiffs in error, came to Texas some time in 1834, and the 21st day of August, 1835, obtained a grant for one league of land in the present county of Montgomery; and shortly thereafter left for the State of Maine, avowedly for the purpose of bringing out his family to settle upon the land conceded to him ; and shortly after reaching his family in the State of Maine, where they had remained whilst he was in Texas, he died. In 1841 or ’42, Mr. Horton, with his family, his wife being a daughter of Edward Russell, cultivated and made a crop on the land; and they have resided ever since in the State of Texas.
In 1849, the defendant in error, H. Randolph, as assignee of Hugh Hampton, located a valid certificate, issued to the said Hampton, on the said land so granted to Russell; and on the Surveyor refusing to survey the land for him, on the ground that the land, pointed out and designated by him, was covered by Russell’s grant, brought this suit to try the right of the said heirs, alleging that it was a part of the public do
We will first inquire whether, from the facts, the grantee ever acquired a domicil before or at the date of the issuance of the grant to him. This is a question on which there has been a great deal said, both by foreign and our own jurists. They have, however, agreed .upon rules by which the question can be settled. The native, or the domicil of a man’s birth, is presumed to continue, until he has selected another; but it is admitted that he can choose another domicil, and that he is not tied down to that of his birth. The evidence of such change of his domicil, or what will amount to such change, is not well defined. No precise time of residence at his new selection, has been prescribed as necessary to constitute it as his domicil. If he has selected his new home, with the intent of remaining, it would seem, on authority, to be sufficient, if he is actually at his new home. The intention, without having gone there, or the going there without the intention of making it his residence, will not be sufficient. (See 7th Proposition of Section 44, Story Conflict of Laws ; 14 Proposition of Section 47 same author.) The facts are shown to be that the grantee remained in this country from some time in 1834 until August or September of the year following, and
In The State v. Skidmore, 5 Tex. R. 469,
The principle upon which the cases of Skidmore and Young were decided, are believed to be decisive of this case. If Russell, the grantee, had acquired a residence in Texas, animo manendi, constructively his wife and children were here too; because his residence, by operation of law, would also be their residence; and if he only left his new residence, and returned to his old, for temporary purposes, either on business or on a visit, it did not annul the new residence, nor could it, by his death so happening during his temporary absence, divest his heirs of the title to the land he had acquired as a colonist. The 31st Article of the Colonization Law of the 28th April, 1832, is as follows : “Every new settler, from the time of his “ settlement, shall be permitted to dispose of his land, although “ it shall not be cultivated, by testament made in conformity “ to the laws that are now or shall hereafter be in force; and “ should he die intestate, his lawful heir or heirs shall succeed “him in the enjoyment of his rights of property, assuming, “in both cases, the obligations and conditions incumbent on “ the respective grantee.” The same provision is found in
The strongest evidence of fraud in procuring the title, on the part of Russell, is his representation- to the Commissioner, in his application for the land. He states that he bascóme to Texas with his family, a wife and three children • when it is in evidence, that his wife and children were not at that time in Texas. And if it was an indispensable requisite
Mr. Hotchkiss, a witness, swears that the grantee lived with him some time, at his house at Nacogdoches; swears that the officers who extended titles to him, knew, at the time, that the wife and children were not actually with him, and that it was usual to issue titles under such circumstances, and that it had been sanctioned by the Attorney General, (Assessor General.) Mr. Rankin, whose affidavit is in the record, swears the practice to have been the same as proven by Mr. Hotchkiss, and .that he had been Surveyor in both Austin’s and Vehlin’s colonies, and that it was usual in both colonies. We have no doubt, that in hundreds of cases, it was done, the head of the family often preceding his wife and children and making arrangements here by selecting and improving the land, and sometimes making a crop or building cabins before the rest of the family would be brought out. The evidence of Mr. Hotchkiss was not objected to, and therefore cannot be objected to in this Court, as to the instructions of the Assessor General, and would go to establish not only the practice, but would also tend to prove that it was authorized by the proper authorities. And the case of Holliman v. Peebles, 1 Tex. R. 676, further confirms the fact of such being the practice of the country, at least. Were we to decide that this practice was a fraud and unauthorized by law, and the title so issued
The Court was requested, on the trial of this case, by the attorney for the unknown heirs, to charge the jury, “ That if “ they believed from the evidence, that Russell, the ancestor “ of the defendants, applied for and obtained the grant in good “ faith, and in good faith went for his family, and died in his “ efforts to bring them to Texas, in pursuance of the grant, ££ they will find for the defendants,” which charge the Court refused to give. In view of the evidence and the law, on which we have commented, we believe the Court erred in refusing to give the charge prayed for.
The Court erred also in overruling the motion for a new trial, on the ground that the verdict was contrary to the evidence.
There is nothing in the grounds stated by the counsel for the appellee, in his motion to dismiss the writ of error, in the • case. We have no doubt, but the attorney, appointed by the Court to represent the heirs, had a right to bring up the case for revision. Eor the above errors the judgment must be reversed, and the cause remanded for a new trial, in accordance with the opinion given by us.
Reversed and remanded
The Reporter is unable to account for an error which he discovers in the s.ylabus to that case, as it is reported in the 5th vol. Tex. R. The latter clause, which is in these words, “ and was himself absent from the country at that date,” is un-, true and should be erased.—Ref.