Opinion.— Three distinct propositions were asserted by appellees in the court below, and appear to have been maintained by the judgment which is before us for review:
1. That the sale by Nestor Clay to Tacitus, in 1830, was prohibited by the laws then in force. It was therefore a nullity; it passed no title to the vendee, and is no bar to a recovery by the heirs of the vendor.
2. That the sale was made upon conditions precedent, and in the absence of affirmative proof by the defendant that he had performed those conditions he could not hold the land against the claims of plaintiffs.
3. That at the time of the sale Tacitus Clay was, and for years afterwards continued to be, an alien, incapable of tak[363]*363ing lands by purchase, and for that reason also he could not hold against plaintiffs.
We consider the question involved in the first of these propositions as effectually settled against appellees by the supreme court upon the two former appeals.
The court assigns a different reason for its ruling in each case, but the substantial result is the same.
We remark, further, that the decision of this question upon the two former appeals can be fully sustained upon another ground, not mentioned in either of the opinions, but we will only allude to it, as we consider this issue fully settled. Tacitus Clay is not a plaintiff seeking to enforce an illegal contract. He is a defendant in possession under a written agreement executed many years ago, the possession having been delivered by the vendor pursuant to the contract. Plaintiffs, as heirs of the vendor, are, in effect, seeking to rescind that contract and oust the defendant from his long-continued possession, upon no other ground whatever than the illegality of the sale. They aver that their ancestor, in selling the land, violated a positive provision of the colonial law; that the sale was void and passed no title to the vendee; that the title remaining in their ancestor after the sale descended to them, and hence they ought to recover. They do not pretend that Hestor Clay was a man of weak mind, or that he was overreached or defrauded by his brother. They present nothing to excuse or palliate his violation of the laws of his country; but they rest their right to recover solely upon the wrongfulness of his act. Counsel for appellées refer us to a number of cases
in which our supreme court has refused to enforce these contracts, but to none in which they have been rescinded. Were these contracts absolutely null and void? We incline to think not. It is certain that our supreme court has always treated them as susceptible of ratification, and even of being specifically enforced upon equitable grounds.
In Soye v. McCallister, 18 Tex., 98, Justice Wheeler, in speaking of these contracts, says: “It is unnecessary now [364]*364to discuss the question whether this agreement was, to all intents and purposes, null, or was only so far inoperative and ineffectual as that it could not be enforced unless it was validated by the grantor after the removal of the legal impediment; or unless there were supervening equities which had the effect to make good the title in the purchaser. Whatever theoretical opinion may be entertained of the question, it cannot be denied that practically the latter view of it has been maintained.” Citing 1 Tex., 748; 9 Tex., 385; 14 Tex., 545.
But appellees also maintain that the sale was made upon conditions precedent. We can see no merit in this part of the case, but it is seriously urged by counsel. It was made a part of the general charge by the court below, and after-wards repeated in such a variety of forms, in the shape of charges asked by plaintiffs, that the jury must have thought it a matter of importance. We will, therefore, consider the evidence upon which it is based.
Upon the same paper which contains the written contract, but below the signatures of Bestor Clay and the subscribing witness, occur the following words. We give them as they are written:
“ All my grand-maws two must come out and all my aunts two put that down all what mother says.”
There is no signature to this latter writing, but counsel insists that these words form a part of the contract of sale. If so, they must be taken as the words of the contracting parties, and as written by Bestor Clay. The words “ grand-maws ” must, we suppose, be taken to mean grandmothers, yet the record does not show that they had, at that time, or afterwards, either an aunt or a grandmother living.
This is the written testimonjL In addition, two witnesses testify that they once heard Bestor Clay tell his brother, Tacitus, that he would give him a quarter of a league at Hickory Point if he would bring their mother to Texas, and live there.
Bo time is mentioned when this proffer was made, nor [365]*365any circumstances to connect it with the sale; in fact, the witnesses state that they heard nothing said about the sale. Why this testimony was not objected to we do not know; but it amounts to nothing, and a verdict found upon it must have been set aside as being without evidence to support it. For if we take the written words at all, we must take them in their appropriate meaning. And so taking them, we cannot see how the declaration that an indefinite number of grandmothers and aunts must come out can be construed into an objection upon the part of Tacitus Clay to bring to Texas the mother and sisters of Nestor; nor can we see how the allegation of a conditional contract of sale is supported by proof of a proposal to make a conditional gift, when the latter is wholly unconnected with the contract. We think, therefore, that the court erred in giving the charge in chief upon the subject, and also in giving those asked by the plaintiffs as well as in refusing those asked by the defendant. And we cannot know what influence this action of the court may have had upon the jury.
We come now to the question of the alienage and non-residence of Tacitus Clay, and upon the threshold of this inquiry we are confronted by the appellees with the following propositions: . “The decision of this court in this case upon the question of title, as affected by the ■ alienage and non-residence of Tacitus Clay at the time of his pretended purchase, and of the subsequent ratification of the same, is the law of this case, binding alike on the parties, the court below and the appellate court.”
The general rule asserted in this proposition is doubtless founded in wisdom and sound policy; but it has not been implicitly followed, by the courts of this state, gee Meyers v. Dittman, 47 Tex., 378; Layton v. Hall, 25 Tex., 204; Reeves v. Petty, 44 Tex., 254-5. But supposing the rule to be correct, it applies only when there is substantially the same state of facts upon the last as upon the first appeal. American Law Review, vol. 1, p. 612, cited by counsel.
Upon, the first appeal the question was decided upon a [366]*366demurrer which admitted the alienage and non-residence of Tacitus Olay. The question which seems to have been-decided by the court upon the first appeal was, Could a nonresident alien take land by purchase under the colonization law of 1825?
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Opinion.— Three distinct propositions were asserted by appellees in the court below, and appear to have been maintained by the judgment which is before us for review:
1. That the sale by Nestor Clay to Tacitus, in 1830, was prohibited by the laws then in force. It was therefore a nullity; it passed no title to the vendee, and is no bar to a recovery by the heirs of the vendor.
2. That the sale was made upon conditions precedent, and in the absence of affirmative proof by the defendant that he had performed those conditions he could not hold the land against the claims of plaintiffs.
3. That at the time of the sale Tacitus Clay was, and for years afterwards continued to be, an alien, incapable of tak[363]*363ing lands by purchase, and for that reason also he could not hold against plaintiffs.
We consider the question involved in the first of these propositions as effectually settled against appellees by the supreme court upon the two former appeals.
The court assigns a different reason for its ruling in each case, but the substantial result is the same.
We remark, further, that the decision of this question upon the two former appeals can be fully sustained upon another ground, not mentioned in either of the opinions, but we will only allude to it, as we consider this issue fully settled. Tacitus Clay is not a plaintiff seeking to enforce an illegal contract. He is a defendant in possession under a written agreement executed many years ago, the possession having been delivered by the vendor pursuant to the contract. Plaintiffs, as heirs of the vendor, are, in effect, seeking to rescind that contract and oust the defendant from his long-continued possession, upon no other ground whatever than the illegality of the sale. They aver that their ancestor, in selling the land, violated a positive provision of the colonial law; that the sale was void and passed no title to the vendee; that the title remaining in their ancestor after the sale descended to them, and hence they ought to recover. They do not pretend that Hestor Clay was a man of weak mind, or that he was overreached or defrauded by his brother. They present nothing to excuse or palliate his violation of the laws of his country; but they rest their right to recover solely upon the wrongfulness of his act. Counsel for appellées refer us to a number of cases
in which our supreme court has refused to enforce these contracts, but to none in which they have been rescinded. Were these contracts absolutely null and void? We incline to think not. It is certain that our supreme court has always treated them as susceptible of ratification, and even of being specifically enforced upon equitable grounds.
In Soye v. McCallister, 18 Tex., 98, Justice Wheeler, in speaking of these contracts, says: “It is unnecessary now [364]*364to discuss the question whether this agreement was, to all intents and purposes, null, or was only so far inoperative and ineffectual as that it could not be enforced unless it was validated by the grantor after the removal of the legal impediment; or unless there were supervening equities which had the effect to make good the title in the purchaser. Whatever theoretical opinion may be entertained of the question, it cannot be denied that practically the latter view of it has been maintained.” Citing 1 Tex., 748; 9 Tex., 385; 14 Tex., 545.
But appellees also maintain that the sale was made upon conditions precedent. We can see no merit in this part of the case, but it is seriously urged by counsel. It was made a part of the general charge by the court below, and after-wards repeated in such a variety of forms, in the shape of charges asked by plaintiffs, that the jury must have thought it a matter of importance. We will, therefore, consider the evidence upon which it is based.
Upon the same paper which contains the written contract, but below the signatures of Bestor Clay and the subscribing witness, occur the following words. We give them as they are written:
“ All my grand-maws two must come out and all my aunts two put that down all what mother says.”
There is no signature to this latter writing, but counsel insists that these words form a part of the contract of sale. If so, they must be taken as the words of the contracting parties, and as written by Bestor Clay. The words “ grand-maws ” must, we suppose, be taken to mean grandmothers, yet the record does not show that they had, at that time, or afterwards, either an aunt or a grandmother living.
This is the written testimonjL In addition, two witnesses testify that they once heard Bestor Clay tell his brother, Tacitus, that he would give him a quarter of a league at Hickory Point if he would bring their mother to Texas, and live there.
Bo time is mentioned when this proffer was made, nor [365]*365any circumstances to connect it with the sale; in fact, the witnesses state that they heard nothing said about the sale. Why this testimony was not objected to we do not know; but it amounts to nothing, and a verdict found upon it must have been set aside as being without evidence to support it. For if we take the written words at all, we must take them in their appropriate meaning. And so taking them, we cannot see how the declaration that an indefinite number of grandmothers and aunts must come out can be construed into an objection upon the part of Tacitus Clay to bring to Texas the mother and sisters of Nestor; nor can we see how the allegation of a conditional contract of sale is supported by proof of a proposal to make a conditional gift, when the latter is wholly unconnected with the contract. We think, therefore, that the court erred in giving the charge in chief upon the subject, and also in giving those asked by the plaintiffs as well as in refusing those asked by the defendant. And we cannot know what influence this action of the court may have had upon the jury.
We come now to the question of the alienage and non-residence of Tacitus Clay, and upon the threshold of this inquiry we are confronted by the appellees with the following propositions: . “The decision of this court in this case upon the question of title, as affected by the ■ alienage and non-residence of Tacitus Clay at the time of his pretended purchase, and of the subsequent ratification of the same, is the law of this case, binding alike on the parties, the court below and the appellate court.”
The general rule asserted in this proposition is doubtless founded in wisdom and sound policy; but it has not been implicitly followed, by the courts of this state, gee Meyers v. Dittman, 47 Tex., 378; Layton v. Hall, 25 Tex., 204; Reeves v. Petty, 44 Tex., 254-5. But supposing the rule to be correct, it applies only when there is substantially the same state of facts upon the last as upon the first appeal. American Law Review, vol. 1, p. 612, cited by counsel.
Upon, the first appeal the question was decided upon a [366]*366demurrer which admitted the alienage and non-residence of Tacitus Olay. The question which seems to have been-decided by the court upon the first appeal was, Could a nonresident alien take land by purchase under the colonization law of 1825?
The question now is, Was Tacitus Olay in 1830, and at the death of Hestor Clay, such an alien and non-resident as to incapacitate him to take by purchase the land in dispute; and the further question, Can the plaintiff, in view of all the facts and circumstances proven in the case, be heard to assert such incapacity? Whatever might be our views upon the question decided upon the first appeal, we do not feel called upon to review that decision. We do not propose to discuss the laws and policy of Spain concerning foreigners; for in the cases of Holliman v. Peebles, 1 Tex., 673, and Yates v. Iams, 10 Tex., 168, the learned Chief Justice Hemp-hill, after endeavoring in vain to explain the subject, abandoned the fruitless search and rested his decision in both cases upon the colonial laws of 1823.
But in the case of Yates v. Iams, 10 Tex., 169-70, he says that one of the methods by which a foreigner might acquire domiciliation was “ that of attaching himself to the soil by purchasing and acquiring real property and possessions. Domiciliation is in most respects equivalent to naturalization.”
And after quoting a number of authorities he again says, page 170: “ From a review of the above, it appears that the acquisition of real property and possession is a badge, or rather a conclusive evidence, of domiciliation, or its equivalent, naturalization.” There were many reasons why Mexico, after her revolt from Spain, should abate much of the rigor with 'which the mother country had formerly treated foreigners. We need not delay to mention those reasons; but her liberal policy clearly appears in her colonization laws. In response to the invitation contained in the law of 1825 (Pasch. Dig., art. 563), Tacitus Clay came to the country as a colonist. He was received as such, and ob[367]*367tained from, the government a grant of land* as a colonist, very near the time at which he bought from his brother the land now in litigation. He brought to the country what must have been regarded, at that time, as a large amount of property — consisting of slaves, live stock, merchandise, drugs, medicines, arms, ammunition, etc. He introduced, and settled upon this tract of land, a number of immigrants, among them a physician and a blacksmith — quite an accession, we may be sure, to this feeble, primitive settlement.
"We take it that these facts are proof conclusive of his citizenship. How, if he afterwards abandoned the country, the colonial authorities might declare vacant the lands which he had received from the state; but could his brother, or his brother’s heirs, assert that, by reason of his abandonment, this tract of land reverted to them? If there be anything in the laws of Spain or Mexico which would sanction such pretensions on their part, it has not been pointed out.
In the case of Bowmer v. Hicks, 22 Tex., 161, Justice "Wheeler uses this language:
“ That the grantee possessed all the requisite legal qualifications to entitle him to the grant, and that the grant itself concludes all after-inquiry upon that subject, has been repeatedly decided.”
Counsel admit that, in a contest with the colonist about the title to the land granted to him, the grant is conclusive; but they insist that in contests about other matters the grant would be only prima facie evidence, even if it amounted to so much as that.
But we know of no cases in which such inquiries have been allowed, nor can we conceive of any cases in which they should ever be allowed, except in a contest about the title to the very land granted.
In our earlier judicial history, an opposing claimant was permitted to question the validity of a colonial grant, upon allegation of fraud upon the part of the grantee in obtaining it.
The evidence was required to be brought forward within [368]*368a reasonable time. But it would be strange, indeed, that a naturalized citizen should be compelled'to prove his citizenship, by parol evidence, as well as by writing, against all challengers, in all sorts of contests, and this, too, after an indefinite lapse of time.
If a foreigner was naturalized in this country to-day, surely no court would require him twenty years hence to produce any other than the written evidence of the fact.
After so long a lapse of time, every reasonable — almost every possible — presumption would be indulged in favor of the capacity of the defendant to take the land.
To show how our courts have treated the acts and adjudications of the'former governments, we refer to the case of Holliman v. Peebles, 1 Tex., 673. Holliman’s title was vacated in 1830. The land was granted to Peebles in 1831. Holliman died in 1833, and his heirs brought the suit in 1840. In that suit they questioned the authority of the ayuntamiento to declare the land vacant, and Chief Justice Hemphill said: “ This presumption will not, in this case, be adduced in support of the action of the ayuntamiento, but a strong one arises in favor of their authority, from the long acquiescence of all the' parties whose titles were annulled or affected by the proceedings.
“ That redress could have been obtained under the former government against the illegal and unwarrantable proceedings of the inferior authorities cannot be doubted. Why this was not attempted has been left wholly unexplained.”
In that case there was a delay of only seven years.
Here Tacitus Clay bought in 1830, ¡Nestor died in 1835, and this suit was brought in 1851. But it is alleged that the plaintiffs were minors. Their ancestor, -however, was not. But even minority itself is not a perfect protection against that unalterable rule, inherent in all systems of jurisprudence, that long lapse of time fortifies possession by lending to it every wholesome and healing presumption that it had a legal beginning.
In treating of a similar subject in a case where heirs [369]*369sought to set aside a judgment of manr years’ standing, and alleged their minority, Chief Justice Robertson used this language: “It does not appear how long the heirs labored under disabilities; but no disabilities which can be presumed to have existed should materially affect the point we are now considering, for the chief efficacy of the long lapse of time does, not arise from actual or presumed acquiescence merely, but results principally from an inflexible rule of law, established for securing ■ the repose of society, and founded on the presumption, sustained by the experience of mankind, that, considering the nature of the fact attempted to be proved, the kind of evidence offered to prove it, and the obliterating influence of a lapse of more than twenty years, it is safer and more reasonable that the judgment should stand and long possession under it remain undisturbed than that both should be assailed bjT testimony which, however false, the defendant could not be expected to repel.” 4 Dana (Ky.) Reports, 422. Under the circumstances of this case nothing but the clearest light and the most imperative duty could justify the court in overturning a title and ousting a possession older than the Republic itself. And certainly we cannot grope our way through the dim twilight which has been shed upon the laws of Spain and Mexico to such a result. In our opinion the plaintiffs should not be heard to question the capacity of the defendant to take, by purchase, the title to the land.
We therefore recommend that the judgment be reversed and the cause remanded.
Without intending to adopt fully all that is said in the • opinion, we do concur in and adopt the conclusions reached in the opinion on each of the questions discussed. The judgment is accordingly reversed and the cause remanded.
ReVBBSED A5D BEMANDED.