THIS case was brought up by writ of error from the District Court of the United States for the eastern district of Texas.
It was an action of trespass to try title brought by Middleton, a citizen and resident of the State of Missouri, to recover a tract of land in the county of Refugio, in the southern and western margins of the San Antonio and Guadalupe rivers, being the same land which was granted to a certain Joshua Davis, by the proper authorities of the State of Coahuila and Texas, in the colony of Power and Hewetson, and bounded as follows, to wit: on the north by the rivers San Antonio and Guadalupe, on the south by vacant lands, on the east by the league of land granted to P. Hines, and on the west by the league granted to Dona Josefa Galan, widow of _____ Hernandez, deceased, having a front, when reduced to a straight line, on said river, of about eight thousand eight hundred and eighty-seven varas, and running back about fourteen thousand and sixty varas, and containing five and one-fourth leagues.
The amended answer of the defendant, McGrew, said that the plaintiff ought not to have and maintain his action herein, because he says that the said Joshua Davis, in the petition named, under whom the plaintiff claimed, died in the year 1835. That his next of kin and pretended heirs, under whom the plaintiff claims, were, at the date of his death, aliens to the Republic of Mexico, being citizens of the United States of America, residing in the State of Missouri, and thenceforward continued and remained aliens as aforesaid, and aliens from the Republic of Texas, being citizens of the United States, resident in the State of Missouri as aforesaid. And that the said next of kin and pretended heirs did not at any time prior to the annexation of Texas, or ever after, take possession of the land sued for, and did not, prior to said annexation, make sale of the same, but the said land remained, from the time of the death of said Davis, continuously until the present time, in the adverse peaceable possession of this defendant and those under whom he claims, holding and claiming the same adversely to the pretended right and title of the said next of kin, which is the title under which plaintiff claims in this suit, and this he is ready to verify. Wherefore he prays judgment, &c.
After much evidence was given upon the trial, which it is not necessary to recite, the court charged the jury, that if they found by the evidence that Joshua Davis, the grantee under whom the plaintiff claimed, departed this life in the year 1835, having no other kindred than three brothers, citizens and residents of the United States, and aliens to Mexico, such brothers, by reason of alienage, could not take real estate by descent from him in Mexico. To the opinion of the court in thus charging the jury, the said plaintiff excepted. Whereupon, the jury found a verdict for the defendant, and the plaintiff brought the case up to this court.
It was argued by Mr. Hughes for the plaintiff in error, and submitted on a printed argument by Mr. Ballinger for the defendant.
Mr. Hughes laid down the following propositions:
1. That, by the laws of Spain and of the Indies, a foreigner domiciliated in a foreign country, in all times past, at least from the time of Alonso el Sabeo, in the thirteenth century, during whose reign the Siete Partidas was compiled, could take as an heir to a person dying in Spain.
2. That this rule is not limited or changed by reason of anything in the colonization laws of Coahuila and Texas, or in the judgments of the courts of Texas; whence it follows, that—
3. The plaintiff ought to have recovered in the court below, having derived his right from the brothers and heirs of the grantee, Joshua Davis.
As the arguments of the counsel upon these points, and especially upon the construction of the judgments of the courts of Texas, would be interesting only to the profession in that State, they are omitted.
Mr. Justice CAMPBELL delivered the opinion of the court.
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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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