Mills v. Alexander

21 Tex. 154

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheelee, J.

A material question to be determined arises upon the charge of the Court as respects the abandonment of the country by Stanly, the grantee of the land in controversy. To constitute an abandonment of the country under the laws of colonization applicable to this case, a change of the national domicil of the party was essential. And to effect such change there must have been the concurrence of the act and the will. Judge Story in his Conflict of Laws, (Sec. 48,) says : “ A national character acquired in a foreign country by residence changes when the party has left the country animo non revertendi, and is on his return to the country where he had his antecedent domicil. And especially if he be in itinere to his native country with that intent, his native domicil revives while he is yet in transitu ; for the native domicil easily reverts. But a mere return to his native country, without an intent to abandon his foreign domicil, does not work any change of Ms domicil.” The mere return of Stanley to Ms native country did not operate abandonment of the domicil he had acquired in this country. The intention to change his domicil was a necessary constituent of such abandonment, and that it devolved on the defendants to prove. (Ennis v. Smith, 14 How. 422.) Having acquired a residence in this country, the presumption of law is that it was retained. This primo, facie presumption may be repelled by proving that he had taken up his residence elsewhere. That rebuts the presumption of its continuance. But the mere fact that he was on his return, with his family, to his native country and died in t'.tiñere, is not sufficient to create the presumption of an abandonment of the domicil he had acquired in this country ; unless it were proven that he left with the intention of such abandonment.

Where a person lives, is taken prima facie to be his domicil, until other facts establish the contrary. (Id.) If Stanley ha,d taken up his residence out of the country, that would have afforded prima facie proof of a change of domicil. But his last residence was in this country, and Ms domicil must be taken to have continued here until there was proof of an intention to change it; and the burden of proof was on the defendants.

We therefore think the charge of the Court upon this point was erroneous. It relieved the party asserting the forfeiture from the necessity of proving an essential element in the fact of abandonment, that of the intention necessary to constitute a change of domicil. We think, as we have heretofore held, that the ground on which it is proposed to effect a disfranchisement and divestiture of property and civil rights ought to be very clearly and satisfactorily established by the party asserting the forfeiture. (5 Tex. R. 245.) And we are of opinion that the burden of proof was on the defendants to establish, not only that the ancestor of the plaintiff had left the country, but that he had done so with the intention of a permanent change of residence, and that his having gone abroad with his family and there died without other proof of such intention, was not sufficient. As this opinion will require a reversal of the judgment, it becomes material to notice the other defences upon which the decision of the case may depend upon another trial.

It is objected by the appellant that the defendants did not plead the decree of 1839, which was given in evidence, nor the equities on which they relied to defeat the plaintiff’s action. The evidence, however, was admitted without objection, and the defendants may plead these defences before another trial. If they had not pleaded specially, their evidence would have been admissible under the plea of “ not guilty.” (Hunt v. Turner, 9 Tex. R. 385.) But having pleaded certain special matter of defence, the Court might have excluded evidence of other special defences. (Rivers v. Foote, 11 Tex. R. 662.)

We think it must be held that the decree of the District Court of Austin county, of 1839, was.a valid and binding judgment, and concluded all inquiry into the legality of the original contract upon which it was rendered. (Grassmeyer v. Beeson, 18 Tex. R. 753.) The office of a curator ad hoc appears to have been essentially the same as that of a guardian ad litem, representing an absentee. (Partidas 3, 2, 12 ; Laws of Coahuila and Texas, Decree 277, Art. 98 ; Grassmeyer v. Beeson, 528, 529, and authorities cited.) The appointment of the curator and the rendition of judgment were before the repeal of the laws which authorized the appointment. (Dig. Art. 127, Sec. 1, 2.) The absent defendant having been represented by the curator, the judgment, until reversed or annulled by competent authority, would be held binding upon him and his heirs. It cannot, it would seem, be impeached in a collateral action by proof that he had died before its rendition. In Case v. Ribalin, (1 J. J. Marsh, 29,) the Court of Appeals of Kentucky held that the rendition of judgment for or against a dead person is error in fact, only to-be corrected by writ of error coram voids. The Court observed that “ if a judgment be rendered in favor of or against a feme covert, suing or defending as a feme sole, or in favor of, or against a dead man, which would be manifestly erroneous as soon as the fact should appear, the error could be corrected only by the Court which rendered the judgment.” There must be some remedy for such a case; and there are numerous authorities showing that a writ of error coram vobis is the usual and, perhaps, the only one. (See 1 Rol. Abr. 747 ; Cro. Eliz. 105 ; 3 Salk. 145 ; 2 Tidd's Pr. 1107 ; Ib. 30.) It would seem therefore that a judgment is not void by reason of the death of a party to it before its rendition, where the fact does not appear by the record; but that it will be held valid, until avoided by a direct proceeding for that purpose. There was therefore no error in the ruling of the Court upon the effect of the judgment in question. But that did not dispose of the entire subject matter in controversy. If it had embraced the entire league, as its effect was a question of law for the Court, and not of fact for the jury, the other rulings in the case might have been held immaterial, and no ground for reversing the judgment.

But it is material to observe, as to the remainder of the land not disposed of by the decree of 1839, that the Court held, and rightly, that it was obligatory on the plaintiffs to restore the price and place the defendants in statu quo, before they could avail themselves of the illegality of the contract of their ancestor, to recover back the land he in his lifetime had sold. (Hunt v. Turner, 9 Tex. R. 385.)

It appears by the evidence that the ancestor of the plaintiffs had sold the entire league before leaving the country. That sold to Hommedieu was what remained after the sale of smaller tracts to others. The inability of the defendants to produce the deeds or written evidence of the sales was doubtless owing to the fact mentioned by the witness, that the records were kept at San Pilepe and were lost or destroyed when the town was burned in 1836. Although the evidence did not ascertain the amount of the price paid, yet it would not bo unreasonable, after so great a lapse of time, to conclude that it was an adequate price for the land at the time. After the lapse of more than twenty years less strictness of proof will be required than in reference to more recent transactions, and presumptions will be indulged in favor of parties who have been permitted to repose in supposed security upon titles fairly acquired.

After such a lapse of time, it is scarcely possible for parties to be reinstated in the rights they will have lost, or compensated for the injury they will sustain by a recovery against them by the original grantee or his heirs ; to say nothing of the shocking injustice of permitting the latter to take the benefit of the performance of the conditions of the grant by the purchaser, and at the same time take advantage of their own failure to observe and perform the provisions and requirements of the law which were the inducements to the making of the grant, to dispossess and ruin those by whose acts they are enabled to assert the title. It is true that time cannot bar the rights of infants and femes covert. But time may obscure and finally annihilate the evidence by which the honest purchaser, who paid a fair, it may be a generous price for the property when it was but little esteemed by the first proprietor who received it from the bounty of the Government, might establish the payment of the price, the confirmation or renewal of the contract of sale when the legal inhibition was removed, or other supervening equities, which would be deemed an insuperable barrier to an action by the grantee or his heirs to-dispossess him. Upon a kindred subject, where it was proposed to annul a judgment of long standing, by evidence that minors who were affected by it were not served with process, the Court of Appeals of Kentucky observed: “ It does not appear how long the heirs labored under disabilities. But no disabilities, which can be presumed to have existed, could 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 the long possession under it remain undisturbed, than that both should now be assailed by testimony which, however false, the adverse party could not be expected to repel. Infancy is saved from the limitation prescribed for bringing suits, because, in such a case, forbearance operates as evidence of abandonment, or want of right; and that reason does not apply with full force to infants, who should not be presumed to have been perfectly acquainted with their rights. But the rule of evidence, which we have been considering, is, as already suggested, founded on reasons of policy, from which infancy is not a fit or admitted exception. (Per Robertson, Ch. J. 4 Dana R. 442.)

If the lapse of more than twenty years from the date of the contract of sale can have no other effect, it should have that of relieving the purchaser, and those claiming under him, of the necessity of proving the payment of the purchase money, and should authorize the presumption that a fair and adequate price was paid, which, with the use of it, may be equal to the appreciated value of the land. And thus, without any departure from the principles and usages of the law, if the original grantee or his heirs will have the land they have once fairly sold for a just price returned to them, they may be required to restore the price ; and the great hardship and wrong done the purchaser may be in some degree alleviated. It is unnecessary to examine particularly the evidence in reference to the defence of the Statute of Limitations. Considering the disabilities of coverture and infancy under which the plaintiffs are or have been protected, it does not appear probable that that defence can avail the defendants, if at all, but for a small part of their possessions. But upon the other defences, if properly presented by the pleadings and proof, it may be different.

The judgment is reversed and the cause remanded.

Reversed and remanded.