COLLARD, Associate Justice.
This is a second suit of trespass to try title, brought by the appellant against C. P. Bennett and J. R. Bennett, for six acres of land, alleged in the petition to be a part of the Samuel Johnson survey, in McLennan County.
The defendants pleaded not guilty.
There was a valid grant of eleven leagues of land, including the six acres sued for, made to Miguel Rabago, September 24, January —, 1834.
Plaintiff claimed the land by valid conveyances from the only heirs of Rabago, who died in 1848.
Rabago, on May 25, 1836, by attorney in fact, conveyed the eleven leagues to Guillermo Laguerenne, who was then residing in the City of Mexico, an alien to Texas.
Defendants set up this conveyance as an outstanding title; and it is admitted that if by it Laguerenne acquired title, plaintiff has no title and can not recover.
Defendants also set up title under patent to Samuel Johnson, a junior title to the Rabago.
The court below gave judgment for the defendants, on the ground that the deed to Laguerenne conveyed the Rabago grant to him, and that therefore plaintiff could not recover. Plaintiff appealed, and filed transcript in Supreme Court March 31, 1890.
The parties have made an agreed case, under rule 59, clause 2, of the Supreme Court, as follows:
“In compliance with clause 2 of. rule 59, Supreme Court, it is agreed that there is no controversy as to the facts in this cause.
“The issues presented are of law, and are clearly stated in the assignment of errors, and are briefly herein set out.
“1. D. H. Williams, vendor of appellant, brought this action of trespass to try title to the land in controversy on September 11, 1873, which action was finally decided against him December term, 1888.
“Thereafter the said D. H. Williams conveyed the land in controversy to Eugene Williams, appellant, on March 26, 1889, who on April 1,1889, brought this second action of trespass to try title. The defendants plead not guilty and the statutes of limitations, but do not plead res ad judicata.
“ The court below concluded as matter of law, that whilst the first action of D. H. Williams suspended the statute of limitation, the judgment in that action against D. H. Williams is res ad judicata as to his vendee, Eugene Williams, appellant, on the ground that a plaintiff is entitled to
a second action of trespass to try title under the law prior to the Revised Statutes of 1879, if his action was brought prior to 1879, but his vendee, the appellant herein, is not entitled to a second action, but is barred by the first adjudication.
“ The appellant'assigns as error this conclusion of the court as applied to the record in this case; because, first, the defendants do not plead res adjudicata; and second, this conclusion is not the law, since appellant is also entitled to a second action, being the vendee of the plaintiff in the first action.
“ 2. It is admitted that appellant’s title is good from Miguel Rabago, the original grantee, through his only heir, Rosa Musquiz Rabago, who, joined by her husband, Antonio Cortez, conveyed the land to appellant’s vendor, unless the deed from Rabago, by Blanco, to Guillermo Laguerenne, of date City of Mexico, May 25, 1836, is valid.
“If this deed passed the title to Laguerenne, subject to be defeated by any action of the government, the appellant’s title can not be sustained.
“As stated above, unless this deed is an absolute nullity, appellant has no title.
“Appellant claims it is void. If void, the judgment should be reversed and rendered for appellant.
“ Laguerenne was a resident citizen of the City of Mexico and a nonresident alien to Texas on May 25, 1836, when this deed was executed and delivered to him in the City of Mexico.
“ Being a nonresident alien, appellant claims he could neither acquire nor hold title to land, and the sale to him was a nullity and the deed void.
“ The court below concluded that the civil law rule of law was, that a sale to a nonresident alien was a nullity, but this rule did not ‘ apply to the condition of the young Republic,’ and that this deed was valid and passed the title. Appellant assigns as error, the conclusions: first, that a deed to a nonresident alien passed title and was valid on May 25, 1836, whereas such sale was a nullity; second, that the civil law was not applicable to the : condition of the new Republic’ on May 25, 1836; third, that the court confined his conclusion of law to the civil law, finding the civil law rule that such sale was a nullity, but that it did not apply to the new Republic, whereas there were special enactments of Mexico and Texas (declaring this to be the law of the young Republic), of which the court below took no notice in his conclusions, yet which, together with the civil law, was the law governing this question on May 25, 1836.
“ The appellee contends that the sale to Laguerenne was not a nullity, but that, as at common law, a defeasible title passed to him, subject to forfeiture to the State upon inquest of office or like proceeding, which never having been done, leaves the title in Laguerenne’s vendee as an outstanding title.
“ It is agreed the foregoing is a clear and succinct statement of the points of law involved in this record.”
The foregoing agreement and statement of the case is duly signed by the attorneys for the parties.
The first assignment of error by appellant, that the court erred in holding that the vendee of one entitled to bring a second suit in trespass to try title under the law could not maintain the action, in our opinion, ought to be sustained. The right of D. H. Williams to bring his second suit was an assignable right, and passed to his vendee.
The remaining questions in the case are presented by assignment, as follows:
The appellant assigns as error:
“ 2. The finding and judgment of the court that Rabago’s deed to Laguerenne passed title to the latter, whereas Laguerenne was a nonresident alien to Texas, and could neither acquire nor .hold land in Texas, and the sale and deed to him were nullities.
‘13. The finding of the court that the well known doctrine of the civil law (admitted by the court to be that a nonresident alien could neither take nor hold title to land) was not applicable to the condition of the young Republic on May 25, 1836.
“ 4. The failure of the court to pass upon this question of the sale to Laguerenne, as being also governed by the laws of Mexico and Texas, declaring the doctrine of the civil law that such sale was a nullity, and in confining the conclusion of law and basing the judgment of the court alone upon the conclusion that the doctrine of the civil law was not applicable to the conditions of the young Republic.”
By the Constitution of the Republic of Texas, adopted March 17, 1836 (prior to the Laguerenne deed), article 6, schedule, section 1, laws then in force, were continued, as follows:
“That no inconvenience may arise from the adoption of this Constitution, it is declared by this convention, that all laws now in force in Texas, and not inconsistent with this Constitution, shall remain in full force until declared void, repealed, altered, or expire by their own limitation.” Pasch. Dig., 35.
It was also provided in the same Constitution: “ No alien shall hold land in Texas except by titles emanating directly from the government. of this Republic.”
But alien heirs could inherit estate, and were allowed .a reasonable time' in which to take possession and dispose of the same.
What the laws were at the time of the adoption of this Constitution, and while the foregoing provisions were in force, and especially the meaning of the first provision quoted, has been the subject of much learned discussion in the courts, and of conflicting decisions.
The opinion of Chief Justice Hemphill, as expressed in Holliman v. Peebles, 1 Texas, 674, evidently was, that an alien could not acquire land in the Republic of Mexico after the decree of the 12th of March, 1828. He says: “ But whatever maybe the true construction of the laws of Spain or of colonization on the subject matter, there can be no doubt that the capacity of aliens to hold lands in the Republic of Mexico, if it ever existed under the laws of Spain, was extinguished by the decree of the 12th of March, 1828. Ordines y Decretos, vol. 4, p. 155. The sixth article of this decree is expressed in the following terms, viz.: ‘ Foreigners introduced and established in conformity with the regulations prescribed, or which shall hereafter be prescribed, are under the protection of the laws, and enjoy the civil rights conferred by these upon Mexicans, with the exception of acquiring landed rural property, which by existing laws those not naturalized can not obtain.’ The acquisition of real property is not only prohibited, but it is also declared that by the laws then in force it could not be acquired without naturalization. * * * The provisions of this decree are peculiarly stern against the acquisition of lands by foreigners, and subjects, in its eleventh article, all such lands acquired in fraud of the law to denunciation by any Mexican, to whom they shall be adjudged on proof of fraud.” Holliman v. Peebles, T Texas, 719.
The question before the court in the above case was one of alienage of the plaintiffs, upon a plea of alienage set up by defendants, to which the civil law was applied, and the conclusion reached that the plea of alien-age was properly sustained. But it should be noted that that suit was brought in December, 1840, after the common law was adopted in the Republic of Texas.
In Barrett v. Kelly, 31 Texas, 481, it is, in effect, decided, that aliens could acquire land in Texas, subject to be divested according to the laws of Mexico.
In Clay v. Clay, 26 Texas, 31, 32, the question was, could a nonresident alien acquire by purchase land in Coahuila and Texas, or in Mexico, by deed executed in 1830, recognized and approved by the vendor up to the time of his death, in 1835 ? The conclusion of the court was that he could not.
The reasoning of Chief Justice Hemphill, in Holliman v. Peebles, was approved, and the court said: “ We can not err in holding that under the laws of Mexico an alien was incapable of holding real estate.” The court quotes from Escriche a law of the Republic of Mexico, of December, 1835, providing that “the foreigner or alien can not acquire real property in the Republic, unless, having been naturalized, he shall marry a Mexican, and observe moreover that which the law prescribes relative to these acquisitions.” Escriche, word Extranjero, 668. And also cites
the sixth article of the decree of March 12, 1828, and construes both laws as prohibiting aliens from acquiring real estate in Texas at the date of the deed mentioned.
This holding was approved in Lacoste v. Odam, 26 Texas, 458.
In Osterman v. Baldwin, 6 Wallace, 116, the Supreme Court of the United States held, that a deed to a citizen in New York to land inTexas, in 1839, conveyed a good title, subject to be defeated only by office found. But if this were not so, it is said, while Texas was a separate Republic, after it was admitted into the Union, the status of the vendee was changed as by naturalization, which had a retroactive effect so as to confirm the title.
The Supreme Court of this State, in Andrews v. Spear, 48 Texas, 567, in construing General Provisions, section 10, of the Constitution of the Republic of Texas, prescribing that “no alien shall hold land in Texas except by titles emanating directly from the government of the Republic,” adhered to the holding in Osterman v. Baldwin, that a deed to an alien was only voidable, and would protect him until some proceeding on the part of the Republic against him. The deed was executed in 1841.
The same doctrine was held by our present Supreme Court in the case of Baker v. Westcott, 73 Texas, 134, where the deed was also executed to the alien in 1841. The court say, that the provision of the Constitution of 1836, General Provisions, section 10, was construed in both the cases above cited, Osterman v. Baldwin and Andrews v. Spear, in which “ it was held, in effect, that a conveyance to an alien during the days of the Republic was subject to be escheated by a proceeding in the nature of office found, at the instance of the government, but that as between the parties to it and their privies it was good.”
The court then concludes, “ that under the conveyance, Westcott, the alien, took a title subject to be escheated at the will of the Republic, and that upon annexation his title became indefeasible.”
The deeds in both of the foregoing Texas cases were made in 1841, after the common law was adopted, which was, on this subject, that an alien could take and hold land by purchase, subject to office found, but could not inherit it or take by implication of law that which the law would escheat on proceeding for that purpose.
The Constitution was paramount, however, and could not be controlled by the common law in case of conflict, and we do not suppose it was allowed to do so iii these cases.
It is contended, that the laws of Mexico prohibited an alien from acquiring or holding land, and that by article 6, schedule, section 1, of the Constitution, these laws were adopted as then understood and administered, until repealed.
This was the effect of the provision, in so far as such laws were not inconsistent with that Constitution nor with public policy. It was not the
intention to destroy titles that had matured. McMullen v. Hodge, 5 Texas, 35.
But the question still is, What was the law of Mexico, and of Coahuila and Texas ? And how was that law affected by the alien clause in the Constitution ?
The latest decisions of the Supreme Court of this State, above cited, have given us a construction, and declared that an alien, in so far as such law applied to the condition of things in the Republic, could hold real estate and could have good title until it was divested by the government. Our court is not alone in this construction of the civil law, or of that law as engrafted upon the laws of the Republic of Texas, to 1840.
In the case of Hammekin v. Clayton, 2 Woods, 337, a deed of the 11th of April, 1836, to an alien, was under consideration, and the court, after reviewing the authorities, and especially the tenth general provision of the Constitution of 1836, decided that the deed was not void, and that the better view of the decision of the courts was, that under the Mexican law a deed to an alien vested title, subject to be divested by proceedings by the government for that purpose. The conflict in Holliman v. Peebles, Clay v. Clay, Lacoste v. Odam, with Barrett v. Kelly and Settegast v. Schrimpf (35 Texas, 341), was discussed.
In Phillips v. Moore, 100 United States, 208, the question was whether an alien could take title under a deed to land in Texas, executed in May, 1828. It was held that he could — a defeasible title — subject to the right of the government to have it vacated by some proceeding ascertaining the fact. Here the Texas cases up to Barrett v. Kelly were reviewed, the court holding with that case, and with De Merle v. Mathews, a California case. 26 Cal., 456.
The court say that ‘ ‘ this conclusion is strengthened by the act of the Mexican Congress of the 12th of March, 1828, in relation to passports and the mode of acquiring property by foreigners.”
The court refers to the sixth article of the decree, upon which so much stress is laid by Chief Justice Hemphill in the Holliman case, and continues as follows: ‘ ‘ But yet, the eleventh article of the same act declares that property acquired by unnaturalized foreigners in fraud of the law may be denounced by any Mexican, to whom it will be adjudged as soon as such fraud is proved. It would thus seem that, notwithstanding the prohibitory language of the sixth article, title may pass to a foreigner not naturalized, though it be one which is defeasible upon the denunciation of a private citizen. ’ ’
The fact that proof of fraud in the manner of acquiring was required to enable a private citizen to denounce, is an indication that land sold to an alien did not ipso facto escheat, or return to the public domain.
This is the view taken of the Act of 1828 by the Supreme Court of California, in the case of De Merle v. Mathews, 26 California, 477.
“A
denouncement,’’ says the court, “was a judicial proceeding, and though real property might be acquired by an alien in fraud of the law — that is, without observing its requirements — he nevertheless retained his right and title to it, liable to be deprived of it by proper proceedings of denouncement, which, in its substantive characteristics, was equivalent to inquest of office found at common law.” Citing Escriche, word “Denuncia,” and several adjudicated cases. See also Racouillat v. Sansevain, 32 Cal., 386.
Delivered November 30, 1892.
We need not prolong the discussion of the question. We think the law is settled, and that it should be now held, as was done in the court below, that the deed to Laguerenne by Rabago conveyed to him and vested in him title to the land, that could be defeated only by some proceeding in the nature of office found, which has never been done; and therefore, according to the submission of the case as agreed, the judgment of the lower court should be affirmed.
Such is the law, as enunciated by the Supreme Court of the United States, and latterly by the Supreme Court of this State, sustained by the Supreme Court of California, and not controverted by any courts of last resort, except some early cases in this State, which have been overruled or disregarded by the present Supreme Court.
The question now decided was not directly decided by the Supreme Court of the United States when the case was before that court on error from the judgment in the first suit. It seems the point was misapprehended, and the court declined to reopen the case for further consideration of the question on motion for rehearing, the court being “ satisfied with the conclusion it had reached.” The question was in the case, however, as intimated in the ruling denying a second motion for rehearing, and as appears from the briefs filed in this court on the motion to dismiss the appeal. Williams v. Conger, 125 U. S., 425, and same case on renewal of application for rehearing, 131 U. S., 391.
The judgment of the court below is affirmed.
Affirmed.