Where a person who owned land in Texas whilst it was a part of
Mexico removed into Mexico prior to the declaration of independence
by Texas, and continued to reside in Mexico until her death, her
daughter, who was also a citizen of Mexico, could not, as heir,
recover the land in Texas.
By the laws which governed Texas before the revolution, the
proprietor of land must have resided within the jurisdiction of the
Mexican government, and foreigners could not inherit land.
The Constitution of Texas considered as aliens all those who did
not reside there at the time of the declaration of independence,
unless they were afterwards naturalized, and also decreed that no
alien should hold land in Texas except by titles emanating directly
from the government of that republic.
The Legislature of Texas had power to modify these rules, but
did not change them in this respect when it introduced the common
law by statute. Upon the death of the ancestor, the estate was cast
upon the state without the necessity of an inquest of office.
The Constitution and laws of Texas provide for the case of an
alien heir who may inherit from a citizen, but not for an alien
heir inheriting from an alien.
The Treaty of Guadaloupe Hidalgo provides for those Mexicans who
inhabited territories ceded to the United States, but had no
relation to Texas.
The case is stated in the opinion of the Court.
Page 59 U. S. 236
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The defendants Saviego and wife claimed, in the district court,
two and one half leagues of land lying in the Counties of Goliad
and Refugio in Texas as an inheritance of Madame
Page 59 U. S. 237
Saviego, from her mother, Gertrudis Barrera, who died in
Matamoros in Mexico in 1842.
Gertrudis Barrera acquired in 1834 one league of the locus
by donation, and the remainder by purchase under the
colonization laws of the State of Coahuila and Texas, while it
formed a part of the Republic of Mexico. She occupied and improved
the land until the commencement of the revolutionary movements in
Texas in 1835, but prior to the declaration of independence in that
year she emigrated and became a resident of Matamoros, where she
continued until her death. The plaintiffs were also citizens of
Coahuila and Texas, but abandoned their connection with Texas in
company with their ancestress, and have retained their status as
They are described on the record as aliens and citizens, and
residents of the City of Matamoros, in the State of Tamaulipas, in
the Republic of Mexico. The defendant claimed the land by virtue of
locations and surveys of valid land certificates, which had been
regularly returned to the General Land Office in Texas before the
31st August, 1853.
A number of questions are presented in the bill of exceptions,
but the opinion the Court has formed upon the 12th, 13th, and 14th
instructions, given at the instance of the plaintiffs, in the
district court renders it unnecessary for us to consider any
others. These instructions are as follows:
"12. If Gertrudis Barrera was a citizen of the Republic of
Mexico, domiciliated within the State of Coahuila and Texas when
the land in question was granted to her, her abandonment of the
State of Coahuila and Texas and settlement in Matamoros, in the
State of Tamaulipas, after the commencement of the revolution in
Texas and before the declaration of Texan independence, was not a
forfeiture of the land so granted, nor did the land thereby become
vacant, and after the close of the revolution in Texas, she would
have been authorized to enforce her right, had she then been
"13. If Madame Barrera died in Tamaulipas in 1842, then being a
citizen of the said State of Tamaulipas, domiciliated there, and
the female plaintiff was her only heir, she too being a citizen of
and domiciliated in Tamaulipas, said heir could and did take, by
the law here, the land in contest by descent, and had a right to
enforce her title by descent to the same extent that her ancestor
could have done, but subject, as she is an alien, to forfeiture by
proceedings on the part of the state."
"14. But if no proceedings were instituted and perfected before
the late treaty between the United States and Mexico, the right in
said heir becomes perfect, and not subject to forfeiture, by virtue
of the 8th article of said treaty. "
Page 59 U. S. 238
It is settled in the jurisprudence of Texas that the
colonization laws of Coahuila and Texas annex, as an enduring and
peremptory condition, to all titles issued by their authority, that
the grantee, so long as he remains the proprietor, shall continue
his domicile within the Republic of Mexico, of which that state
formed a part. A change of domicile operated to defeat the estate
of the grantee and to restore the land without encumbrance to the
public domain, so that without a judicial or other inquiry it might
be regranted. The same jurisprudence recognizes the prohibition
upon foreigners to inherit lands in Mexico, for the owners of lands
were subject to charges and obligations which citizens could alone
perform. Halleman v. Peebles,
1 Tex. 673; Horton v.
78; Yates v. James,
The conduct of Gertrudis Barrera and her children, the
defendants in this suit, after the commencement of the
revolutionary movements in Texas, and which separated that state
from Mexico, deprived them of all claim to political rights in the
new republic, and placed them under the civil disabilities of
foreigners under its laws. The Constitution of Texas of 1836
identified as citizens only such persons as were residing in Texas
on the day of the declaration of independence or should be
naturalized according to its provisions. Hart.Dig. 35, 38;
Inglis v. Trustees of the
Sailors' Snug Harbor,
3 Pet. 99. The same
instrument provided that "no alien shall hold land in Texas except
by titles emanating directly from the government of this republic,"
Hart.Dig. 38, § 10, and provided that Congress should, as early as
practicable, introduce by statute the common law of England, with
such modifications as the circumstances of the state might require.
This duty was performed in 1840 by an enactment that
"The common law of England, so far as it is not inconsistent
with the constitution or acts of Congress now in force, shall,
together with such acts, be the rule of decision in this republic
and shall continue in full force until altered or repealed by
The common law authorities clearly establish that Madame
Saviego, under the circumstances, is not deemed to be an heir at
law, having no inheritable blood, and, in the absence of such
heirs, the estate would be cast immediately upon the state, without
inquest of office. Orr v.
4 Wheat. 453; Hardy v. De Leon,
Tex. 211, 242.
We shall now examine if there are other provisions in the laws
of Texas to relieve the defendants from the apparent
The Constitution of Texas, by way of exception to the general
inhibition upon aliens to "hold lands except by titles emanating
directly from the republic," declares that
"If any citizen should
Page 59 U. S. 239
die intestate or otherwise, his children or heirs shall inherit
his estate, and aliens shall have a reasonable time to take
possession of and dispose of the same in a manner hereafter to be
pointed out by law."
The 10th section of the law of distribution and descent,
Hart.Dig. art. 585, provides:
"In making title to land by descent, it shall be no bar to a
party that any ancestor, through whom he derives his descent from
the intestate, is or hath been an alien, and every alien to whom
any land may be devised or may descend shall have nine years to
become a citizen of the republic and take possession of such land,
or shall have nine years to sell the same before it shall be
declared forfeited or before it shall escheat to the
The first clause of this section is substantially a reenactment
of the statute of 11 and 12 William III. c. 6, and removes no other
defect than the want of inheritable blood arising from the alienage
of some person through whom the heir must deduce his claim.
9 Wheat. 354.
The second clause modifies the existing laws which regulate the
capacities of aliens to take or hold real property in the state,
whether by devise or descent.
But the remedial effect of the act does not extend beyond the
disability of an alien heir. It contains no enactment in favor of
an alien who may have acquired possession or property in lands,
whereby he could make a valid bequest or transmit it to his heirs,
whether aliens or citizens by descent.
The act of which this section forms a part is framed for the
disposal of the estates of those having "title to any estate in
inheritance, and regulates its descent or distribution." The
prohibition in the constitution upon aliens to hold lands in Texas,
and the limited powers of Congress to introduce favorable
conditions in favor of alien heirs, must be remembered in
ascertaining its meaning. The constitution had provided for the
transmission of the estates of citizens to their children or heirs,
being citizens, and then provides that Congress shall legislate to
give to aliens a reasonable time to take possession and to dispose
of such an inheritance. Neither the language of the act nor the
policy of the state, as it may be discovered from its constitutions
and laws, authorizes the conclusion that an alien, claiming real
property in Texas, can transmit it, by descent, to an heir who is
also an alien.
The subject matter to which these provisions all relate is the
estates of citizens, and we cannot apply their conditions to the
special and peculiar case of an inheritance claimed by an alien
heir in the right of an alien intestate. The question has not
arisen, so far as we can discover, in the courts of Texas, but in
the case of Cryer v. Andrews,
11 Tex. 170, the court seems
to assume that the act we have considered was a legislative
Page 59 U. S. 240
with the constitutional guarantees in favor of the alien heirs
of deceased citizens, and that the alien heir must, within nine
years, sell the lands or become a citizen. In the present instance,
citizenship has not been acquired, which that court seems to treat
as a prerequisite to an entry on the inheritance.
The last question remaining for consideration arises on the 8th
section of the treaty with the Republic of Mexico of the 2d
February, 1848, 9 Stat. 923, called the Treaty of Guadaloupe
Hidalgo. The first clause of that article provides "for the
Mexicans now established in territories previously belonging to
Mexico, and which remain for the future within the limits of the
United States." The second clause provides for those who shall
prefer to remain in the said territories, and they are authorized
to retain the title of Mexican citizens or acquire the rights of
citizens of the United States. The third clause prescribes
"That in the said territories, property of every kind now
belonging to Mexicans not established there shall be inviolably
respected. The present owners, the heirs of these, and all Mexicans
who may hereafter acquire said property by contract shall enjoy
with respect to it guarantees equally ample as if the same belonged
to citizens of the United States."
To what territories did the high contracting parties refer to in
this article? We think it clear that they did not refer to any
portion of the acknowledged limits of Texas. The territories
alluded to are those which had, previously to the treaty, belonged
to Mexico and which, after the treaty, should remain within the
limits of the United States. The Republic of Texas had been many
years before acknowledged by the United States as existing
separately and independently of Mexico, and as a separate and
independent state it had been admitted to the Union. The government
of the United States, by that act, had conferred upon the
population established there all the privileges within their
constitutional competency to grant.
The various stipulations contained in this article are wholly
inapplicable to the persons who, before the revolution in Texas,
had been citizens of Mexico and who by that revolution had been
separated from it.
The right of property to which this article of the treaty was
designed to afford a guarantee extended to property of every kind
which at its date belonged to Mexican citizens, "now belonging to
Mexicans," not established within the territories then ceded to the
United States. In the present instance, the Republic of Texas had
acquired title many years before, and the land at the date formed a
part of its public domain.
Our conclusion is that the judgment of the district court should
Reversed and the cause remanded to that court for further