120 S.W. 171 | Tex. | 1909
This controversy is over the title to two tracts of land patented to the heirs of William Wallace, who was killed in the massacre at Goliad, and the only question is, who were his heirs? The answer depends upon the further question whether the devolution of the title or right, in virtue of which the land was granted, was in accordance with the laws of Virginia or those of Texas, in force when Wallace died. It is conceded by both parties that this judgment is right if the laws of Texas are to be applied, and that it is wrong if those of Virginia control.
The Court of Civil Appeals held that the laws of Texas governed because Wallace, before his death, had become a citizen of Texas. We reach the same result, but for a different reason. The material facts are these: Wallace was born and reared in Virginia and his home was there until he left, as stated below, and, therefore, his domicile was there, unless the facts are sufficient to show that he acquired a citizenship in Texas. All that appears which is pertinent to the question is that he was married in Virginia in 1835, and lived with his father-in-law a few months and then came to Texas for the purpose of enlisting, and did enlist, in the Texas army in which he served until his death in 1836. His wife survived him, and, after his death, gave birth to a child, who died before the mother. The certificate under which the land was patented was issued December 26, 1849, entitling the heirs of William Wallace to 1920 acres of land in virtue of his services in the army of the Republic for three months, from December 25, 1835, to March 27, 1836, and of his having fallen at the massacre at Goliad. This certificate was located and patented to the heirs of Wallace in 1852.
The defendants in error claim under Mrs. Wallace, upon whom the laws of Texas would have cast the descent, and plaintiff in error claims under other relatives of Wallace, who would have inherited according to the laws of Virginia.
It is agreed on all hands that the persons intended by the grant to the heirs of Wallace were those who would have inherited the right granted had it existed at his death, and so the decisions of this court hold. Goodrich v. O'Connor,
Without going into the question discussed by the Court of Civil Appeals as to Wallace's citizenship, we hold that the laws of Texas determined who were his heirs and governed the descent of the property irrespective of his domicile. The promise made by the "Declaration" of 1835 was that Texas "will reward by donations in land all who volunteer their services in her present struggle, and receive them as citizens." This promise was redeemed by the subsequent passage of laws prescribing the manner in which the lands could be acquired by those was accepted this offer, or by the heirs of those who perished in the struggle. The certificates were authorized as the mere evidence of the right, and the other prescribed steps as the procedure through which the land should be acquired. The creation of the right to the land and the prescribing of the modes in which full title might be obtained were but successive steps to that which ultimately took place — the grant of the land itself. In the decision of such questions as that before us, the laws which authorized the issuance of evidences of right to acquire land should be regarded as if they were grants of the land ultimately acquired. The word heirs in such a grant ought, we think, to be taken as referring to those who at the death of the ancestor would have inherited that kind of property which was being granted — land. As the laws of Texas controlled the descent of titles to land within her jurisdiction this view results in the conclusion that the heirs referred to were those upon whom such laws cast the descent.
The opposite view is based upon decisions of this court which treat unlocated land certificates as being in themselves personal property, or chattels. Undoubtedly they have been so treated for many purposes. Assignments or transfers of them have not been required to be in writing. (Cox v. Bray,
In the opinion of Judge Stayton in the case of Barker v. Swenson,
In the case of Neal v. Bartleson,
While this is significant and goes far to sustain the view expressed by us, it does not fully cover the present question. The actual situs in Texas of any personal property might be sufficient to sustain the jurisdiction of our courts to subject it to debts and other purposes of administration, while questions as to the devolution of title to it might be controlled by the law of the domicile of the owner. But when we consider the nature of land certificates and how directly titles to lands depend on the ownership of them, we can entertain no doubt, under the principles governing the subject, that such ownership should be held to be controlled by our own laws. Such a certificate is "the obligation of the government entitling the owner of it to secure the designated quantity of land by following the requirements of the law" (Cox v. Bray,
This does not conflict with the decisions which hold that the certificates, for many purposes, are to be regarded as chattels. Those decisions apply the law of this, not that of another, State. The mere fact that, for some purposes of our own, we treat such evidences of right as chattels does not justify the application to them of the principle that the title to movables is controlled by the law of the domicile of the owner, when the effect would be to subject titles to land in this State to a foreign law. That principle is generally, but not universally, true. It is not allowed to have the effect just stated. In some jurisdictions mortgages upon, and some leasehold interests in, real estate are regarded by the local law as chattel interests but that is not allowed to subject them to a foreign law of the owner's domicile. Wharton, p. 640, sec. 287, and cases cited.
As stated in Neal v. Bartleson, inchoate rights such as that first granted to Wallace had to be followed up by a compliance with our own laws in order to realize, by the acquisition of land, the only reward promised. They had to be prosecuted here and had their situs here. They were subject throughout to the operation of our laws. They pertained to, and were finally satisfied in the acquisition of, land, and their nature, and not the mere temporary character which, at times, the evidence of them assumed, is to be regarded in determining such a question as this. The confusion and inconvenience that might result from the application of foreign laws, depending upon the domiciles of all those to whom such right were granted, could hardly be overstated. The officers of the government and the people dealing with such matters must necessarily, in determining questions of heirship and the like, have followed the laws of this sovereignty "familiar to its population," since they were dealing with the titles to lands situated here and were required to take notice of no other laws. We are unwilling to introduce this additional uncertainty into our land system. The judgment is right and will be affirmed.
Affirmed.