This was an action brought, April 12, 1890, in the circuit court of the United States for the Western district of Texas, by Joseph F. Hamilton, a citizen of Missouri, Lewis Hamilton, and Mary A. Post, joined by her husband, George Post, citizens of Illinois, Walter B. Hamilton, and Elizabeth Fulton, joined by her husband, John G. Fulton, citizens of Kansas, and John F. Hamilton, a citizen of Colorado, against J. T. Brown and 25 others, all citizens of Texas, and living in the county of Fayette, within the Western district of Texas, to recover land in that county.
The petition alleged that the land consisted of one league, described by metes and bounds, granted to Walter F. Hamilton by the republic of Mexico on April 30, 1831; that, on April 13, 1888, the plaintiffs were the owners in fee simple of the land, and entitled to the possession thereof; and that the defendants on that day unlawfully entered thereon and dispossessed the plaintiffs, and had ever since withheld the possession from them.
The defendants, in a supplemental answer, say: 'That plaintiffs ought not to have or maintain this action against them, because they say that, on the 30th day of March, 1861, one Edward Colier, at that time the lawful district attorney of what was then the First judicial district of Texas, acting for and under authority of the state of Texas, filed in the name and by the authority of the state of Texas a petition, and began a suit in the district court of Fayette county, Texas, the object and purpose of which suit was to have said district court of Fayette county declare and adjudge that the league of land described in plaintiffs' petition in this suit had escheated to the state of Texas, and to have the title to the same divested out of the said Walter Hamilton and his heirs, and have it vested in the state of Texas. That in said petition plaintiff alleged that Walter Hamilton, late a resident of Fayette county, in said state, died on the ___ day of _____, _____, intestate, and without heirs, and that no letters of administration have ever been granted upon said decedent's estate in Fayette county, in which succession should, according to law, have been opened; that said decedent died seised and possessed of the league of land which is described in the petition of plaintiffs in this suit, and which is fully described in said petition; that said Walter Hamilton was the last person seised and possessed of said land; that there are no tenants upon said tract of land, and no person is either in actual or constructive possession of said tract of land, or any part thereof, nor is there any person, claiming the estate in and to said tract of land, known to petitioner; that no person has paid the taxes on said land or any part thereof; that the estate in and to said tract of land has escheated to the state of Texas,-and praying for the grant of writ of possession in and to said tract of land to said state. That afterwards, to wit, on the 18th day of May, 1861, the said district court of Fayette county, Texas, made an order in said suit, and caused it to be enrolled in the minutes of the said court, commanding the publication for four successive weeks, in a newspaper printed in the state of Texas, of a notice setting forth the substance of the allegations of said petition, and requiring all persons interested in the estate of said Walter Hamilton to appear and show cause at the nextterm of said court why the said league of land should not be vested in the state of Texas. That, pursuant thereto, a notice, setting forth at length said order, and the substance of said petition, was issued by the clerk of said court, and published, as required by law, for four successive weeks, in a weekly newspaper called the 'New Era,' printed and published in La Grange, in Fayette county, Texas. That sundry persons intervened in said suit, and set up claims to parts of said league of land. That said suit was continued from term to term of said court, until the July term thereof, in 1871, when there was a trial had, and judgment entered there to the effect that the league of land in controversy in this suit is escheated unto the state of Texas, and the title thereto is divested out of the said Walter Hamilton and his heirs, and forever vested in the state of Texas. A true and correct copy of said judgment, certified to under the hand and seal of the clerk of the district court of Fayette county, Texas, is hereto attached, and is made a part hereof. [1] That said judgment has never been reversed or vacated, but now remains in full force and effect. That, by and because of said judgment, the said Walter Hamilton, and all persons claiming through or under him, are estopped and barred of the right to have or maintain this action for the recovery of said land.
'And these defendants further say that afterwards, to wit, on the 7th day of August, 1872, pursuant to the commands of said judgment, the clerk of the district court of Fayette county, Texas, issued and delivered to the sheriff of Fayette county, Texas, an order of sale, commanding him to seize the said league of land, and sell it in manner as directed in the said judgment, and make disposition of the proceeds arising from the sale as provided therein; that said land was so seized and sold by said sheriff, and that these defendants, and those under whom they claim, became the purchasers of the parts of said league claimed by them at such sale, paid the amounts of their respective bids to the said sheriff, and received from him deeds conveying the same to them; that for this reason, also, these defendants say that said plaintiffs are estopped from and barred of the right to have or maintain this action.'
The plaintiffs, by an amended supplemental petition, demurred generally to this answer as insufficient in law, and also specially excepted to it as follows:
(1) 'The escheat proceedings and final judgment obtained therein, set out in defendants' said answer, were begun and prosecuted under and by virtue of an act of the legislature of the state of Texas, entitled 'An act to provide for vesting in the state escheated property,' passed March 20, 1848, there being, at the date of the filing of said escheat proceedings, no other law or statute authorizing escheats, which said act was repealed and annulled by the constitution of the state of Texas of 1869, long prior to the date when the escheat judgment, pleaded and relied upon by defendants to defeat plaintiffs' title, was obtained, in this: that the law of 1848 (section 11) provides that the sheriff of the proper county shall seize the real estate escheated to the state, and sell the same in the manner therein provided, while the constitution of 1869 (article 4, § 20) provides that the comptroller of the state '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,' which provisions are contradictory and conflicting.'
(2) If the act of 1848 was not repealed and annulled entirely, then section 11 thereof was repealed and annulled by that provision of the constitution of 1869, 'and, there being no other provisions in said act by which compensation is made to the heirs of the intestates whose property has been escheated, the balance of the said act is not self-acting, and is one of confiscation, and therefore in violation of the fifth amendment of the constitution of the United States and section 14 of the bill of rights of the constitution of 1869,' by which 'no person's property shall be taken or applied to public use without just compensation being made, unless by consent of such person.' (3) The act of 1848, if not repealed by the constitution of 1869, 'was and is in contravention and violation of section 10, art. 1, of the constitution of the United States of America, which provides that 'no state shall pass any bill of attainder or law impairing the obligation of contracts,' in that said law impairs the obligation of the contract between the state of Texas and Walter F. Hamilton and his heirs by virtue of the grant under which they hold said land, and seeks to forfeit or confiscate the private property of said Hamilton (the land) by appropriating it to the common fund without making due compensation therefor.'
The court overruled the general demurrer and the special exceptions to the answer, and, upon the plaintiffs declining to introduce any evidence to support their cause of action, rendered judgment for the defendants.
The plaintiffs tendered and were allowed a bill of exceptions to the rulings and judgment of the court, and sued out this writ of error.
H. E. Barnard, for plaintiffs in error.
S. R. Fisher, for defendants in error.
Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.
Notes edit
- ↑ The judgment annexed was as follows: 'It is thereupon ordered, adjudged, and decreed by the court that the league of land described and set forth in plaintiff's petition as follows, to wit, [giving the description by metes and bounds], be, and the same is hereby, declared escheated unto the state of Texas, and the title thereto is hereby divested out of the said Walter Hamilton, his heirs and assigns, forever, and vested in the state of Texas. It is further ordered by the court that the clerk of this court do issue a writ, directed to the sheriff of Fayette county, Texas, commanding him, the said sheriff, to seize and sell the above-described league of land as under execution, without appraisement, for cash, in United States currency, on the first Tuesday in some month, after giving notice of sale as the law directs, in lots of not less than ten nor more than forty acres, and turn over the proceeds of said sale, after deducting therefrom the expenses and costs of the same, to the comptroller of public accounts for the state of Texas, taking therefor his duplicate receipt, one of which he shall file among the papers of this cause. It is further ordered by the court, that the plaintiff, the state of Texas, do have and recover of the interveners herein, to wit, J. G. Brown, J. J. Short, William Short, and _____ Short, her costs of suit in this behalf had and expended, for which execution may issue. It is further ordered that the costs incurred herein by the plaintiff be taxed against the state of Texas, and certified by the clerk of this court to the comptroller of public accounts, to be paid by the treasurer upon the warrant of said comptroller.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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