Moore, Associate Justice.
This suit originated in the District Court of Travis county by a petition filed by the District Attorney, in the name of the State of Texas, to escheat two tracts of land, one of six hundred and forty acres, situated in said Travis county, the other of eight hundred and thirty-five acres, situated in Llano county, alleged to have been the property in his lifetime of one R. S. M. A. de la Tulle.
Title to land by escheat originated from and was a consequence of the feudal law, whereby, upon the failure of heirs of the person last seized, who may lawfully take the estate by succession, it fell back or reverted to the original grantor, his descendants, or successors. And, as under the general doctrine of tenures in the American States, the State occupies the place of the feudal lord by virtue of its [18]*18sovereignty, it is universally asserted that, when the title to land fails for lack of heirs or devisees, who may lawfully take, it reverts or escheats to the State as property to which it is entitled. (4 Kent, 470.)
This has certainly been the law of tenure in Texas from the organization of the Government. The Constitution of the Republic declares that escheats which had accrued to Ooahuila and Texas should-accrue to the Republic. (Const. Schedule, sec. 2.) And in the Constitution of the State adopted in 1845, (art. 13, sec. 4,) it is provided that es-cheats which had accrued to the Republic under the Constitution and laws should accrue to the State. And it is further provided: “The Legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.” And, by sec. 10, art. 4, jurisdiction ■was given to the District Court of all suits in behalf of the State to recover penalties, forfeitures, and escheats. Like jurisdiction has been conferred upon the District Court in the Constitutions of 1861, 1866, and 1869; and in the latter, by see. 20 of art. 4, it is further provided that the Comptroller of Public Accounts shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the State.
In fulfillment of the duty imposed upon the Legislature by the provision of the Constitution of 1845, which we have quoted above, the law of March 20th, 1848, entitled “An act to provide for vesting in the State escheated property,” was enacted. And it is under the authority supposed to have been conferred by it, no doubt, this suit was instituted and conducted. But whether this statute had not been repealed by the provision in the Constitution of 1869, which we have cited, may, we think, admit of serious question ; but as it is not necessary to the determination of the present case, we are not called upon at presént to determine it. We think, however, that it is quite evident this ' [19]*19section of the Constitution is in conflict with, and therefore revokes, the authority conferred by the statute of 1848, upon the court to order the sale of escheated land, if such, indeed, can be held to be the proper construction of this statute in view of the conflicting provisions of its different sections; and for this reason, if no other, the judgment in this case should be reversed.
We are of opinion, however, that the petition is altogether insufficient to authorize an escheat of the property described in it under the provisions of the statute under which the suit was brought, if it is still in force. The first section of the statute reads : “ If any person die seized of any real or possessed of any personal estate, without any devisee thereof, and having no heirs; or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest in the State.” The essential facts upon which title by escheat should vest in the State are set forth in this section. These, as expressed in the first clause of the section, aré distinctly stated to be death of the owner without a devisee, and having no heirs—that is, where there is no one in being who can, on the death of the owner, claim or hold under a will or the laws of the State regulating descent and distribution of estates of intestates. Evidently, it was not the purpose of the Legislature, if it had been competent for it to do so, to confer upon the State title to property, under color of a proceeding to escheat it, to which it was not entitled under its sovereignty as the original and ultimate proprietor of all the lands within its jurisdiction. It may be said that the second clause of the section escheats the property of all persons who are absent for the term of seven years, and are not known to exist. To vest property in the State simply by reason of the absence of the owner for any particular length of time, whether known to exist or not, might be a forfeiture of the property, but it certainly would not be to escheat it. [20]*20The section is very inartificially drawn, but manifestly it was not intended by this clause to vest in the State property to which it could claim no title under and by virtue of the well-known character of right, for which this statute, in its title, declares it is enacted to provide, by reason of other facts, which, at most, are merely presumptive evidence of the existence of one of the essential elements in such a title. Obviously, the purpose and import of this clause is that proof of absence of one who is not known to exist for the length of time mentioned is presumptive evidence of his death. It is not, therefore, a ground for es-cheat of itself, but evidence of one of the elements of title by escheat.
The second section of the statute declares and points out the occasions when it becomes the duty of the District Attorney to institute proceedings to vest in the State property to which it may be entitled, and it also sets forth the essential averments which the petition he is required to file shall contain, among which are the facts and circumstances in consequence of which such estates claimed to have es-cheated. And this petition must be filed in the District Court of the county in which succession upon the estate of the decedent is required to be opened. It follows, therefore, the petition is insufficient, unless it appear, prima fade, at least, that it is filed in the county entitled to administration upon the estate, and it must, with other matters to be stated, distinctly allege the death of the party whose estate is to be escheated, and that he died without any devisee thereof and having no heirs.
The allegations in this petition to meet these requirements of the statute, are: “Said B. S. M. A. de "la Tulle has been absent from the State of Texas a great number of years, to wit, for more than seven years; that it is believed, and is therefore charged, that said de la Tulle has been dead for more than seven years; that there has been no administration upon the estate of said de la Tulle, and there are [21]*21no heirs to said estate known to your petitioner; * * * * * that the county of Travis would have been and still is the proper county in which the succession should open on said estate, there being a large portion of the property belonging to said estate situated in said county of Travis.”
It will be seen the allegation as to the death of de la Tulle, and that there are no heirs of his estate, are alleged, if at all, but vaguely, and by way of argument or inference, and the petition in this was subject to exception. And it is totally deficient in negativing the fact that the estate .may have been devised. Certainly it fails in showing, prima
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Moore, Associate Justice.
This suit originated in the District Court of Travis county by a petition filed by the District Attorney, in the name of the State of Texas, to escheat two tracts of land, one of six hundred and forty acres, situated in said Travis county, the other of eight hundred and thirty-five acres, situated in Llano county, alleged to have been the property in his lifetime of one R. S. M. A. de la Tulle.
Title to land by escheat originated from and was a consequence of the feudal law, whereby, upon the failure of heirs of the person last seized, who may lawfully take the estate by succession, it fell back or reverted to the original grantor, his descendants, or successors. And, as under the general doctrine of tenures in the American States, the State occupies the place of the feudal lord by virtue of its [18]*18sovereignty, it is universally asserted that, when the title to land fails for lack of heirs or devisees, who may lawfully take, it reverts or escheats to the State as property to which it is entitled. (4 Kent, 470.)
This has certainly been the law of tenure in Texas from the organization of the Government. The Constitution of the Republic declares that escheats which had accrued to Ooahuila and Texas should-accrue to the Republic. (Const. Schedule, sec. 2.) And in the Constitution of the State adopted in 1845, (art. 13, sec. 4,) it is provided that es-cheats which had accrued to the Republic under the Constitution and laws should accrue to the State. And it is further provided: “The Legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.” And, by sec. 10, art. 4, jurisdiction ■was given to the District Court of all suits in behalf of the State to recover penalties, forfeitures, and escheats. Like jurisdiction has been conferred upon the District Court in the Constitutions of 1861, 1866, and 1869; and in the latter, by see. 20 of art. 4, it is further provided that the Comptroller of Public Accounts shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the State.
In fulfillment of the duty imposed upon the Legislature by the provision of the Constitution of 1845, which we have quoted above, the law of March 20th, 1848, entitled “An act to provide for vesting in the State escheated property,” was enacted. And it is under the authority supposed to have been conferred by it, no doubt, this suit was instituted and conducted. But whether this statute had not been repealed by the provision in the Constitution of 1869, which we have cited, may, we think, admit of serious question ; but as it is not necessary to the determination of the present case, we are not called upon at presént to determine it. We think, however, that it is quite evident this ' [19]*19section of the Constitution is in conflict with, and therefore revokes, the authority conferred by the statute of 1848, upon the court to order the sale of escheated land, if such, indeed, can be held to be the proper construction of this statute in view of the conflicting provisions of its different sections; and for this reason, if no other, the judgment in this case should be reversed.
We are of opinion, however, that the petition is altogether insufficient to authorize an escheat of the property described in it under the provisions of the statute under which the suit was brought, if it is still in force. The first section of the statute reads : “ If any person die seized of any real or possessed of any personal estate, without any devisee thereof, and having no heirs; or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest in the State.” The essential facts upon which title by escheat should vest in the State are set forth in this section. These, as expressed in the first clause of the section, aré distinctly stated to be death of the owner without a devisee, and having no heirs—that is, where there is no one in being who can, on the death of the owner, claim or hold under a will or the laws of the State regulating descent and distribution of estates of intestates. Evidently, it was not the purpose of the Legislature, if it had been competent for it to do so, to confer upon the State title to property, under color of a proceeding to escheat it, to which it was not entitled under its sovereignty as the original and ultimate proprietor of all the lands within its jurisdiction. It may be said that the second clause of the section escheats the property of all persons who are absent for the term of seven years, and are not known to exist. To vest property in the State simply by reason of the absence of the owner for any particular length of time, whether known to exist or not, might be a forfeiture of the property, but it certainly would not be to escheat it. [20]*20The section is very inartificially drawn, but manifestly it was not intended by this clause to vest in the State property to which it could claim no title under and by virtue of the well-known character of right, for which this statute, in its title, declares it is enacted to provide, by reason of other facts, which, at most, are merely presumptive evidence of the existence of one of the essential elements in such a title. Obviously, the purpose and import of this clause is that proof of absence of one who is not known to exist for the length of time mentioned is presumptive evidence of his death. It is not, therefore, a ground for es-cheat of itself, but evidence of one of the elements of title by escheat.
The second section of the statute declares and points out the occasions when it becomes the duty of the District Attorney to institute proceedings to vest in the State property to which it may be entitled, and it also sets forth the essential averments which the petition he is required to file shall contain, among which are the facts and circumstances in consequence of which such estates claimed to have es-cheated. And this petition must be filed in the District Court of the county in which succession upon the estate of the decedent is required to be opened. It follows, therefore, the petition is insufficient, unless it appear, prima fade, at least, that it is filed in the county entitled to administration upon the estate, and it must, with other matters to be stated, distinctly allege the death of the party whose estate is to be escheated, and that he died without any devisee thereof and having no heirs.
The allegations in this petition to meet these requirements of the statute, are: “Said B. S. M. A. de "la Tulle has been absent from the State of Texas a great number of years, to wit, for more than seven years; that it is believed, and is therefore charged, that said de la Tulle has been dead for more than seven years; that there has been no administration upon the estate of said de la Tulle, and there are [21]*21no heirs to said estate known to your petitioner; * * * * * that the county of Travis would have been and still is the proper county in which the succession should open on said estate, there being a large portion of the property belonging to said estate situated in said county of Travis.”
It will be seen the allegation as to the death of de la Tulle, and that there are no heirs of his estate, are alleged, if at all, but vaguely, and by way of argument or inference, and the petition in this was subject to exception. And it is totally deficient in negativing the fact that the estate .may have been devised. Certainly it fails in showing, prima facie, that Travis county would have been the proper county in which succession of the estate should have been opened. The presumption is, that at one time de la Tulle was domiciled in Bexar county, and he is alleged to have been a citizen of the State. Although it is averred that he had been absent a great many years, yet nothing is stated necessarily inconsistent with the retention of his domicile; but if so, the principal portion of his estate is not shown to have been situated in Travis county.
We think, also, the evidence was altogether insufficient to justify the judgment of the court. The testimony to support the petition of the State was vague and indefinite, and most of it should have been excluded. The witnesses themselves knew nothing about de la Tulle, and the fact that Gillespie, who is not shown to have been acquainted with him, told the witness that he was dead, is certainly entitled to no weight. And the slight inquiry made at San Antonio, the former residence, and the vague reports heard there by the witness as to his death, is entitled to but little more consideration. Evidently reliance was not placed upon proof of de la Tulle’s death from reputation among his acquaintances, or where he had been known to have last resided. It seems to have been supposed not to be necessary to prove his death, [22]*22or, if necessary, that this was done by proof of his absence for seven years without being known to exist. But here again the testimony relied upon was equally deficient. Proof of his absence from Travis comity, where it was not shown he had ever been in the course of his life, and that he had not been heard of there, or by witnesses who had never known him, was worse than idle. It is equally clear that .there was a failure to show that he had died without heirs. On the contrary, there is strong presumption from the evidence, if he is dead, he has left heirs surviving him.
There was error, also, in giving judgment in favor of the intervenor, Mowinkle. If his patent conflicted with the de la Tulle survey, his location, to the extent of the conflict, was illegal and void, and the subsequent proceedings by the District Attorney to escheat the land held by the older and superior title gave it no validity.
There was no error in sustaining the exceptions to appellant’s answer, claiming one hundred and sixty acres of the land as a pre-emptor. The survey and patent of the land to de la Tulle severed it from the mass of the public domain, and though it may be reinvested in the State again as escheated property, it will not become thereby subject to location or pre-emption until this has been done, if then, without direct legislation subjecting it to such appropriation. Certainly no such claim can be made pending the proceeding to escheat. If appellant can preempt the land upon which he claims to have settled as a part of the public domain, from the fact of the right of the State to it as escheated property, he can do this as well after as before the judgment of the court vesting the property in the State, and this suit should not be embarrassed with such a claim.
Dor the errors herein indicated the judgment is reversed and the case remanded.
Reversed and remanded.