Upon proceedings under the statute of Texas of March 20, 1848,
c. 145, for the escheat of land of a person who is dead, in which
the petition describes the land, gives his name, and alleges that
he died intestate and without heirs, that no letters of
administration upon his estate had been granted, that there is no
tenant or person in actual or constructive possession of the land,
nor any person, known to the petitioner, claiming an estate
therein, and that the land has escheated to the State of Texas, and
an order of notice to all persons interested in the estate has been
published, as required by the statute, and, after a hearing of all
who appear and plead, judgment is entered, describing the land, and
declaring that it has escheated to the state, the judgment is
conclusive evidence of the state's title in the land not only
against any tenants or claimants having had actual notice by
scire facias or having appeared and pleaded, but also
against all other persons interested in the estate and having had
constructive notice by publication.
The Constitution of Texas of 1869, art. 4, sect. 20, declaring
it to be the duty of the comptroller of public accounts to "take
charge of all escheated property," did not affect pending
proceedings for escheat under the statute of March 20, 1848, c.
145, so far as concerned the vesting of the title to the land in
the state, even if it should be held to repeal the provisions for a
subsequent sale of the land by the sheriff.
Page 161 U. S. 257
The Constitution of Texas of 1869, art. 10, sect. 6, forbidding
the legislature to grant lands except to actual settlers, did not
affect judicial proceedings to declare and enforce escheats.
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 twenty-five 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
Page 161 U. S. 258
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 next term 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
Page 161 U. S. 259
and seal of the clerk of the District Court of Fayette County,
Texas, is hereto attached, and is made a part hereof.
* 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
Page 161 U. S. 260
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:
1st.
"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, sect. 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, art. 4, sect. 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."
2d. 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."
Page 161 U. S. 261
3d. The act of 1848, if not repealed by the Constitution of
1869,
"was and is in contravention and violation of Section 10,
Article I, 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.
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This was an action to recover land in the County of Fayette and
State of Texas.
The petition alleged that the land was granted in 1831 by the
Republic of Mexico to Walter F. Hamilton, and that, on April 13,
1888, the plaintiffs were the owners in fee simple, and entitled to
the possession thereof, and the defendants then ousted them.
The defendants, in their answer, relied on proceedings in
escheat, commenced in 1861, and in which judgment was rendered in
1871.
In those proceedings, as set forth in the answer, the
attorney
Page 161 U. S. 262
for the state alleged that Walter Hamilton died, intestate and
without heirs, seised and possessed of this land, and that the
estate in the land escheated to the State of Texas. The court
ordered publication of notice to all persons interested in the
estate of Walter Hamilton to appear and show cause why the land
should not be vested in the state. After due publication of the
order of notice, sundry persons intervened in the suit and set up
claims to parts of the land. The case was continued from term to
term until July term, 1871, when a trial was had, and judgment
entered that the land
"be, and the same is hereby, declared escheated unto the State
of Texas, and the title is hereby divested out of the said Walter
Hamilton, his heirs and assigns forever and vested in the State of
Texas."
The answer alleged that that judgment had never been reversed or
vacated, but remained in full force, and that, because of such
judgment, Walter Hamilton, and all persons claiming through or
under him, were estopped and barred of the right to maintain this
action.
The answer further alleged that in 1872, pursuant to the
commands of that judgment, the sheriff sold the land by auction,
and the defendants and those under whom they claimed became
purchasers of parts of the land at such sale, and paid the amounts
of their respective bids to the sheriff, and received from him
deeds conveying the land to them, and that for this reason also the
plaintiffs were estopped and barred to maintain this action.
Although it is not directly stated either in the petition or in
the answer that the plaintiffs claimed the land as heirs of Walter
Hamilton or Walter F. Hamilton, yet it is evident that it was so
understood and intended. If the plaintiffs did not claim in his
right, then, on the one hand, the Mexican grant to him in 1831,
upon which they relied both in the petition and in the exceptions
to the answer, was immaterial;, and, on the other hand, neither the
judgment in escheat in 1871 nor the sheriff's sale in 1872 set up
in the answer would meet the allegation in the petition that the
plaintiffs owned the land in 1888. And it is assumed in the briefs
of both
Page 161 U. S. 263
parties that the Walter F. Hamilton named in the petition and
the Walter Hamilton named in the answer were the same person, and
that the question to be decided is whether the judgment in escheat
or the sheriff's sale under that judgment bars the plaintiffs
claiming as his heirs.
By the law of England, before the Declaration of Independence,
the lands of a man dying intestate and without lawful heirs
reverted by escheat to the King as the sovereign lord, but the
King's title was not complete without an actual entry upon the
land, or judicial proceedings to ascertain the want of heirs and
devisees.
Attorney General of Ontario v. Mercer, 8
App.Cas. 767, 772; 2 Bl.Com. 245. The usual form of proceeding for
this purpose was by an inquisition or inquest of office before a
jury, which was had upon a commission out of the Court of Chancery,
but was really a proceeding at common law, and if it resulted in
favor of the King, then, by virtue of ancient statutes, anyone
claiming title in the lands might, by leave of that court, file a
traverse, in the nature of a plea or defense to the King's claim,
and not in the nature of an original suit. Lord Somers, in
The
Bankers' Case, 14 How.State Tr. 1, 83;
Ex Parte
Webster, 6 Ves. 809;
Ex Parte Gwydir, 4 Maddock 281;
In re Parry, L.R. 2 Eq. 95;
People v. Cutting, 3
Johns. 1;
Briggs v. Light-Boats, 11 Allen 157, 172. The
inquest of office was a proceeding
in rem. When there was
a proper office found for the King, that was notice to all persons
who had claims to come in and assert them, and, until so traversed,
it was conclusive in the King's favor. Bayley, J., in
Doe v.
Redfern, 12 East 96, 103; 16 Vin.Abr. 86, pl. 1.
In this country, when the title to land fails for want of heirs
and devisees, it escheats to the state as part of its common
ownership, either by mere operation of law or upon an inquest of
office, according to the law of the particular state. 4 Kent, Com.
424; 3 Washb. Real Prop. (4th ed.) 47, 48.
By the Constitution of 1836 of the Republic of Texas, art. 4,
sect. 13, it was provided that the legislature should
"as early as practicable, introduce by statute the common law of
England, with such modifications as our circumstances in
Page 161 U. S. 264
their judgment may require."
2 Charters and Constitutions 1757. And by the statutes of Texas
from the time of its existence as an independent republic, the
common law of England, so far as not inconsistent with the
Constitution and laws of Texas, has been declared to be, together
with such Constitution and laws, the rule of decision, and to
continue in force until altered or repealed by the legislature.
Texas Stat. Jan. 20, 1840; Paschal's Digest (4th ed.) art. 978;
Rev.Stat. 1879, § 3128;
Courand v. Vollmer, 31 Tex. 397;
Barrett v. Kelly, 31 Tex. 476.
By the Constitution of the State of Texas of 1845, it was
provided, in art. 4, sect, 10, that the district court should have
original jurisdiction "of all suits in behalf of the state to
recover penalties, forfeitures and escheats," and in art. 13, sect.
4, as follows:
"All fines, penalties, forfeitures and escheats which have
accrued to the Republic of Texas under the constitution and laws
shall accrue to the State of Texas, and the legislature shall by
law provide a method for determining what lands may have been
forfeited or escheated."
2 Charters and Constitutions 1773, 1781.
By the settled course of decision in the supreme court of the
state, no proceedings for escheat can be had except under and
according to an act of the legislature.
Jones v.
McMasters, 20 How. 8,
61 U. S. 21;
Hancock v. McKinney, 7 Tex. 384, 456;
Wiederanders v.
State, 64 Tex. 133.
The legislature, on March 20, 1848, passed a statute entitled
"An act to provide for vesting in the state escheated property."
General Laws of Texas of 1847-48, c. 145, p. 210; Paschal's Digest,
arts. 3657-3674.
By section 1 of that statute (Pasch.Dig. art. 3657),
"if any person die seised of any real, or possessed of any
personal estate without any devise 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 to the state."
The purpose and import of the second clause of this section,
concerning an owner absent for seven years and not known to exist,
have been declared by the supreme court of the
Page 161 U. S. 265
state to be
"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 escheat of itself, but evidence of
one of the elements of title by escheat."
Hughes v. State, 41 Tex. 10, 20. This is only important
by way of explaining the scope of the statute, since, in the
present case both parties assume and rely upon the death of the
former owner.
By section 2 (3658), when no letters testamentary or of
administration appear to have been granted upon the estate of a
person who has died without heirs, it is made the duty of the
district attorney to file in the district court of the county
"where such succession is required to be opened" -- which is as
much as to say where his estate would be administered -- a petition
setting forth
"a description of the estate, the name of the person last
lawfully seized or possessed of the same, the names of the tenants,
or persons in actual possession, if any, and the names of the
persons claiming the estate, if any such are known to claim, and
the facts and circumstances in consequence of which such estate is
claimed to have escheated, praying for a writ of possession for the
same, in behalf of the state."
Section 3 (3659) requires
scire facias to be issued to
all persons named in the petition as in possession of or claiming
the estate, requiring them to appear and show cause why it should
not be vested in the state. Section 4 (3660) further requires an
order of notice to be published four weeks in a newspaper printed
within the state, stating briefly the contents of the petition, and
requiring "all persons interested in the estate" to appear and show
cause why it should not be vested in the state. The order of notice
by publication to all persons interested in the estate is essential
to the jurisdiction of the court, and, if no such notice is shown
by the record, a judgment for the state will be reversed on writ of
error, even if sued out by parties who were named in the petition,
and appeared and pleaded in the cause.
State v. Teulon, 41
Tex. 249;
Wiederanders v. State, 64 Tex. 133;
Hanna v.
State, 84 Tex. 664, 667.
Page 161 U. S. 266
By section 5 (3661), "all persons named in such petition as
tenants or persons in actual possession or claimants of the
estate," may appear and plead, and traverse the facts stated in the
petition, or the title of the state; "and any other person claiming
an interest in such estate may appear and be made a defendant and
plead, by motion for that purpose in open court." By section 6
(3662), if no person, after notice as aforesaid, shall appear and
plead, judgment shall be rendered by default for the state. By
section 7 (3663),
"if any person appear and deny the title set up by the state, or
traverse any material fact in the petition, issue shall be made up
and tried as other issues of fact."
By section 8 (3664),
"if after the issue and trial it appears, from the facts found
or admitted, that the state hath good title to the estate, real or
personal, in the petition mentioned, or any part thereof, judgment
shall be rendered that the state shall be seized or possessed
thereof, and at the discretion of the court, recover costs against
the defendants."
By section 9 (article 3665),
"if it appear that the state hath no title in such estate, the
defendant shall recover his costs, to be taxed and certified by the
clerk, and the comptroller of public accounts shall, on such
certificate's being filed in his office, issue a warrant therefor
on the treasury of the state, which shall be paid as other demands
on the treasury."
And by section 10 (3666),
"when any judgment shall be rendered that the state be seized or
possessed of any estate, such judgment shall contain a description
thereof, and shall vest the title in the state."
By section 11 (3667), "a writ shall be issued to the sheriff of
the proper county, commanding him to seize such estate, vested in
the state," and "he shall dispose thereof at public auction, in the
manner provided by law for the sale of property under execution."
By section 12 (3668), a copy of the record and account of sale,
exemplified under the seal of the court, is required to be
deposited in the office of the comptroller of public accounts, and
another copy recorded in the office of the recorder of the county;
"and such record shall preclude parties and privies thereto, their
heirs and assigns."
By section 13 (3669),
"any party who shall have appeared
Page 161 U. S. 267
to any proceeding, and the district attorney on behalf of the
state, shall have the right to prosecute an appeal or writ of error
upon such judgment."
Section 14 (3670) requires that "the Comptroller shall keep just
accounts of all moneys paid into the treasury, and of all lands
vested in the state, under the provisions of this act."
Sections 15 (3671) and 16 (3672) provide that, "if any person
appear, after the death of the testator or intestate, and claim any
money paid into the treasury under this act," as heir, devisee, or
legatee, he may, by petition in the District Court for the county
in which the estate was sold, and after notice to the district
attorney, and proof that the petitioner is an heir, devisee,
legatee, or legal representative, obtain an order directing the
Comptroller to issue his warrant on the treasurer for payment
thereof.
Section 17 (3673) simply relates to the duty of the district
attorney to obtain from the clerk of any probate court moneys or
title papers to land, not claimed by any heir, devisee, or legal
representative of a deceased person.
By section 18 (3674), "all property, escheated under the
provisions of this act, shall remain subject to the disposition of
the state, as may hereafter be prescribed by law."
Sections 1770-1785 of the Revised Statutes of Texas of 1879
reenact, substantially and almost verbally, the provisions of the
statute of 1848, except by requiring the publication of the order
of notice for eight weeks, instead of four weeks, as in section 4,
by omitting sections 12 and 17, and by inserting the words, "The
proceeds of," at the beginning of section 18.
These proceedings for the escheat of the estate of a deceased
person for want of heirs or devisees, like ordinary proceedings for
the administration of his estate, presuppose that he is dead. If he
is still alive, the court is without jurisdiction, and its
proceedings are null and void, even in a collateral proceeding.
Griffith v.
Frazier, 8 Cranch 9,
6 U. S. 23;
Scott v. McNeal, 154 U. S. 34;
Hall v. Claiborne, 27 Tex. 217;
Withers v.
Patterson, 27 Tex. 491, 497;
Martin v. Robinson, 67
Tex. 368, 375;
Caplen v. Compton, 5 Tex.Civ.App. 410. And
if the death
Page 161 U. S. 268
of the former owner intestate and without heirs is not alleged
in the petition or is not proved at the trial, a judgment for the
state is erroneous, and reversible by appeal or writ of error.
Hughes v. State, 41 Tex. 10;
Wiederanders v.
State, 64 Tex. 133;
Hanna v. State, 84 Tex. 664.
But the whole object in proceedings for escheat, as in
proceedings of administration, is to ascertain who are entitled to
the estate of a deceased person -- in proceedings of
administration, to distribute the assets, after payment of debts,
among those who come forward and prove themselves to be next of
kin; in proceedings for escheat, to ascertain and determine, once
for all, so far as concerns the title in the land itself, whether
the former owner left no heirs or devisees, that being the single
question on which depends the issue whether or not the land has
escheated to the state.
Consequently, when (as is admitted in the present case) the
former owner was dead and, in the proceedings for escheat (as shown
by the record on which the defendants rely), the petition describes
the land, gives the name of the former owner, and alleges that he
died intestate and without heirs; that no letters of administration
upon his estate had been granted; that there is no tenant or person
in actual or constructive possession of the land, nor any person,
known to the petitioner, claiming an estate therein, and that the
land has escheated to the State of Texas -- and an order of notice
to all persons interested in the estate has been published, as
required by the statute, and, after a hearing of all who appear and
plead, judgment is entered, describing the land and declaring that
it has escheated to the state -- the judgment is conclusive
evidence of the state's title in the land not only against any
tenants or claimants having had actual notice by
scire
facias or having appeared and pleaded, but also against all
other persons interested in the estate and having had constructive
notice by publication.
That such is the effect of the judgment in favor of the state is
clearly shown by the decision in
Wiederanders v. State,
above cited, in which the reasons for holding that, if the notice
required by the statute to all persons interested in the estate
Page 161 U. S. 269
had not been published, the court had no jurisdiction to enter
judgment, even against persons who actually appeared and contested
the claim of the state, were stated by the court as follows:
"The purpose for which proceedings of this character are
instituted is to have a judicial declaration, in the form of a
solemn judgment made by a court having jurisdiction of the subject
matter and of the persons in interest, insofar as publication can
give it, that the facts exist which, under the law, cast title upon
the state to property which at some former time (in case of lands),
it had clothed a person with title."
"The law now in force must be deemed to be a law providing a
method for giving effect to escheats. R.S. 1770-1788."
"We are of the opinion that the publication of notice, required
by the statute, is made necessary to the exercise of the general
jurisdiction conferred, and that without it the district court had
no jurisdiction to try the case."
"The object of such a proceeding is not simply to have a decree
declaring the escheat, and vesting the title in the state, but, by
and through process to be issued under the judgment, to divest not
only the title of persons entitled to take the property of the
deceased as his heirs, if perchance any such there be, but also, by
a sale, to divest the title of the state, and to start, and confer
upon the purchaser a new title, deraigned directly from the
sovereign of the soil. R.S. 1777-1780."
"The proceeding, while not strictly a proceeding
in
rem, has many of its characteristics; yet the statute does not
direct a seizure of the thing, which, in some cases, has been held
to support a judgment strictly
in rem. It applies to
personalty, as well as realty. The mere institution of the
proceeding creates no presumption that there is no one capable of
taking the estate under the rules regulating the descent of estates
of deceased persons. The presumption is to the contrary, and the
effect of the judgment, if rendered after all persons interested in
the estate are notified of the pendency and purpose of the
proceeding in the only manner in which they can be, if unknown, is
to destroy that presumption, and to make the title of the state
clear. "
Page 161 U. S. 270
"From the time the property is sold under a valid decree, the
claim of the person who might have taken it as heir, devisee, or
legatee is against the proceeds of the property, which must be paid
into the state treasury (R.S. 1780-1785), and to recover even that
he is driven to a suit."
"It certainly is not the intention that the purchaser of
escheated lands shall be subjected to the peril of losing them
after they have been regularly escheated and sold, if an heir,
devisee, or legatee shall subsequently make claim; nor that
personalty, which, from day to day, changes hands, shall be subject
to the claim of such persons, however valid such claim may have
been, if asserted in proper time and place. Yet such results would
follow if the jurisdiction of the court is not so brought into
exercise, by a substantial compliance with the requisites of the
statute, as to clothe it with power, by its judgment, to
conclusively settle the title to the property as against all
persons."
64 Tex. 135-138.
The like opinion was expressed by Chief Justice Shaw upon the
effect of proceedings under a similar statute of Massachusetts in a
case in which it was held that a conveyance of real estate of a
citizen dying intestate and without heirs could not be made by the
commonwealth until the rendition of judgment in its favor upon an
inquest of office. The Chief Justice said:
"Where a subject dies intestate, as the estate descends to
collateral kindred indefinitely, the presumption of law is that he
had heirs, and this presumption will be good against the
commonwealth until it institutes the regular proceedings by inquest
of office, by which the fact whether the intestate did or did not
die without heirs can be ascertained, and if this fact is
established in favor of the commonwealth, it rebuts the contrary
presumption, and the commonwealth by force of the judgment, and of
the statute before cited, becomes seised in law and in fact. In
such case, therefore the court are of opinion that an inquest of
office is necessary, and that the commonwealth cannot be deemed to
be seised without such inquest.
Jackson v. Adams, 7 Wend.
367;
Doe v. Redfern, 12 East 96. So far as this depends
upon general principles, it seems to be a rule highly reasonable
in
Page 161 U. S. 271
itself, and tends greatly to the security and regularity of
titles. By the mode of taking inquests, prescribed by the law of
this commonwealth, St. 1791, c. 13, § 2, general notice is to be
given of the claim of the commonwealth, any person is admitted to
traverse it, a trial by jury is to be had, and costs are given to
the prevailing party. These are highly reasonable and equitable
provisions, and it is manifestly for the quiet of the commonwealth
and the security of the citizen that they should be pursued, before
the commonwealth shall be permitted to take into its own custody
and dispose of estates upon a claim which, if not doubtful, is at
least not apparent."
Wilbur v. Tobey, 16 Pick. 177, 180.
The Constitution of Texas of 1866, art. 4, sect. 6, contained a
provision, similar to that of the Constitution of 1845 as to the
jurisdiction of the district court over escheats, and contained no
other provision on the subject of escheats. 2 Charters and
Constitutions 1789. That constitution, as was admitted by the
plaintiffs, did not take away the power of the legislature over the
subject, or affect the statute of 1848 or proceedings under it.
But it was strenuously contended that this statute was repealed
by the Constitution of 1869, which, while embodying, in art. 5,
sect. 7, the provision of the former constitutions as to the
jurisdiction of the district court over escheats, and repeating in
art. 4, sect. 20, the provision of art. 5, sect. 23, of the
Constitution of 1866, establishing the office of Comptroller of
Public Accounts, to be elected by the qualified voters of the state
for the term of four years, also defined the comptroller's duties
as follows:
"He shall superintend the fiscal affairs of the state; give
instructions to the assessors and collectors of the taxes; settle
with them for taxes; 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; publish annually a list of delinquent
assessors and collectors, and demand of them an annual list of all
taxpayers in their respective counties, to be filed in his office;
keep all the accounts of the state; audit all the claims against
the state; draw warrants upon the treasury in favor of the
public
Page 161 U. S. 272
creditors, and perform such other duties as may be prescribed by
law."
2 Charters and Constitutions 1794, 1809, 1811.
This definition of the duties of the comptroller in the
Constitution of 1869 nearly follows the words of the statutes
existing at the time of its adoption. Paschal's Digest arts. 5414,
5424, 5426, 3670, 5194, 5416, 5418, 5420. The principal difference
is in substituting, for the words of section 14 of the act of 1848,
requiring the comptroller to "keep just accounts of all moneys paid
into the treasury, and of all lands vested in the state, under the
provisions of this act" the words, "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."
As the Constitution of 1869 repeats, in so many words, the
provision of former constitutions by which the district court is
vested with original jurisdiction of all causes in behalf of the
state to recover escheats, and as the statute of 1849 made it the
duty of the Comptroller to keep accounts not only of all moneys
paid into the treasury, but also of all lands vested in the state,
under its provisions, it is difficult to see how the insertion of
the general words, "take charge of all escheated property" in the
definition of the comptroller's duties in the Constitution of 1869
either increased his powers or diminished those of the district
court in relation to escheats.
The whole object of inserting in the Constitution a definition
of the principal duties of the comptroller would seem to have been
to fix by the fundamental law a matter which would otherwise have
been subject to the discretion of the legislature.
The only doubt thrown upon this arises out of the opinion
delivered in
Hughes v. State, above cited, in which Mr.
Justice Moore said:
"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
present to determine it. We think, however, that it is quite
evident this section of the constitution is in conflict with, and
therefore revokes, the authority conferred
Page 161 U. S. 273
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."
41 Tex. 18, 19.
But the weight of that suggestion is much lessened, if not
wholly counterbalanced, by several considerations. The decision in
that case was put upon the distinct ground that the petition and
the proof were both insufficient. In another case, decided at the
same term, in which the opinion was delivered by the same judge, as
well as in an earlier case of a writ of error to review the very
judgment now pleaded, and in at least two later cases, above cited,
in each of which this proposition, if sound, would have been
decisive, it was not even mentioned.
State v. Teulon, 41
Tex. 249;
Brown v. State, 36 Tex. 282;
Wiederanders v.
State, 64 Tex. 133;
Hanna v. State, 84 Tex. 664. And
after the Constitution of 1869 had been in force for ten years, the
legislature, in revising and codifying the statutes of the state,
reenacted all the material provisions of the act of 1848, both as
to obtaining a judgment declaring the land to have escheated, and
as to a subsequent sale of the land by the sheriff, and clearly
manifested its understanding and intention that the provisions for
such a sale did and should remain in force, by prefixing the words,
"The proceeds of," to the last section, which had directed "all
property escheated in accordance with the provisions of" the act to
"remain subject to the disposition of the state, as may hereafter
be prescribed by law." R.S. 1879, section 1785.
The plaintiffs somewhat relied on art. 10, sect. 6, of the
Constitution of 1869, which provides that
"the legislature shall not hereafter grant lands to any person
or persons, nor shall any certificates for land be sold at the land
office, except to actual settlers upon the same, and in lots not
exceeding one hundred and sixty acres."
2 Charters and Constitutions 1816. But this evidently relates
only to legislative grants of land, and not to judicial proceedings
to declare and enforce escheats.
Even if the suggestion in
Hughes v. State, above cited,
that art. 4, sect. 20, of the Constitution of 1869, relating to
the
Page 161 U. S. 274
comptroller of accounts, "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," should be considered as
well founded, it would affect only section 11 of the statute,
authorizing the sale, and so much of the subsequent sections as
concern that subject, and would leave unaffected the preceding
sections, providing for a judgment to be rendered, upon due
allegation and proof, and after notice to all persons interested,
ascertaining and declaring that the land has escheated to the
state, and vesting in the state the title to the land. The
provisions looking to a judgment vesting title to the land in the
state are distinct and severable from the provisions for a sale,
and a conversion into money, of the land after it has vested in the
state, and if the latter provisions are for any reason invalid,
they may be considered as stricken out, and the former provisions
stand good.
Field v. Clark, 143 U.
S. 649;
Zwernemann v. Von Rosenberg, 76 Tex.
522. And the judgment set up in the answer in this case, so far as
it determined that the title of the land had vested by escheat in
the state, was valid, even if the order for a sale of the land was
not.
Ludlow v.
Ramsey, 11 Wall. 581.
It follows that, if the sale and conveyance by the sheriff to
the defendants were invalid, and vested no title in them, the
previous judgment, ascertaining and declaring the escheat, vested a
good title in the State of Texas against all persons claiming as
heirs or devisees of the former owner, and that judgment, although
it does not prove the title to be in the defendants, proves it to
be out of the plaintiffs, and affords a complete defense to this
action.
Love v. Simms,
9 Wheat. 515,
22 U. S. 524;
Christy v.
Scott, 14 How. 282,
55 U. S. 292;
Doswell v. De La
Lanza, 20 How. 29,
61 U. S. 33.
As to personal property, indeed, a judgment
in rem,
after notice by publication only, might not bind persons who had no
actual notice of the proceedings unless the thing had been first
seized into the custody of the court.
The
Mary, 9 Cranch 126,
13 U. S. 144;
Scott v. McNeal, 154 U. S. 34,
154 U. S. 46;
Hilton v. Guyot, 159 U. S. 113,
159 U. S. 167.
But it was within the power of the Legislature of Texas to provide
for determining and quieting the
Page 161 U. S. 275
title to real estate within the limits of the state and within
the jurisdiction of the court, after actual notice to all known
claimants and notice by publication to all other persons.
Phillips v. Moore, 100 U. S. 208,
100 U. S. 212;
Arndt v. Griggs, 134 U. S. 316;
Hardy v. Beaty, 84 Tex. 562, 569.
When a man dies, the legislature is under no constitutional
obligation to leave the title to his property, real or personal, in
abeyance for an indefinite period, but it may provide for promptly
ascertaining, by appropriate judicial proceedings, who has
succeeded to his estate. If such proceedings are had, after actual
notice by service of summons to all known claimants and
constructive notice by publication to all possible claimants who
are unknown, the final determination of the right of succession,
either among private persons, as in the ordinary administration of
estates, or between all persons and the state, as by inquest of
office or similar process to determine whether the estate has
escheated to the public, is due process of law, and a statute
providing for such proceedings and determination does not impair
the obligation of any contract contained in the grant under which
the former owner held, whether that grant was from the state or
from a private person.
Judgment affirmed.
* 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."