Jones et al. v. McMasters.

ing any dissent to the election made for him; and this ratification as to all his rights must relate back, and have the same effect and operation as if the election had been made by him at that time.'

Again: "The British doctrine therefore is, that the American ante nati, by remaining in America after the treaty of peace, lost their character of British subjects. And our doctrine is, that by withdrawing from the country and adhering to the British Government, they lost, or perhaps, more properly speaking, never acquired, the character of American citizens."-Inglis v. The Sailors' Snug Harbor, 8 Peters, 122-'3.

And this is the case which shows the distinction between mere questions of domestic domicil and the more important questions as to national character. In the former, the question of domicil of a minor is settled by that of his father, or the last of the father, when he is dead; while in the latter, the national character depends upon election, whether the party be adult or minor, though the act of the father making his election may operate an election for the son, if his dissent be not made in due time.

But did Catherine McMasters either show a dissent or an election to become a Mexican, instead of a Texan? It will be seen, by an examination of the plea in question, that she was about four years of age when she was removed by Manuel Sabriego to Matamoras, before the declaration of independence, in March, 1836; she was therefore of age eighteen years afterwards, in the year 1853. We have no evidence of a dissent to the act of removal by Sabriego, or of an election to become a citizen of Texas; and upon the principles established in the case referred to in this court, it must be presumed that she ratified the act of her friend, and remained a citizen of Mexico, and was so by relation from the time of removal and the declaration. But the plea is contradictory in regard to the age of Catherine McMasters, for after the statement of her age before the declaration of independence, it is in another part alleged that she was a minor at the time of filing said plea in 1854. This matter of the age is material; and if the contradiction is to have effect at all, one averment destroys the other, and then there is no good plea, for the want of material averments.

Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the District Court of the United States, possessing Circuit Court powers, held in and for the district of Texas.

This suit was brought in the court below by Catherine McMasters, to recover the possession of a tract of land lying in the

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Jones et al. v. McMasters.

county of Goliad, in the forks of the San Antonio river and the Cabaza creek, containing four leagues of land. Four of the defendants put in a plea of not guilty. At a subsequent day, John R. Tally was allowed to come in and defend as landlord of Lott, one of the defendants. Whereupon, he put in a plea to the jurisdiction of the court, upon the ground the plaintiff was a citizen of the State of Texas. The plea states that she was born at Goliad, then in the State of Coahuila and Texas, when it was a part of the Republic of Mexico; that the domicil of her father and mother were at this place at the time of her birth, and continued there till their deaths. That the plaintiff was removed from the Territory of Texas to Matamoras, west of the Rio Grande, in Mexico, when she was about four years of age, during the revolutionary movements in Texas, and before the declaration of independence, which was on the 2d March, 1836. That she was removed in the family of M. Sabriego, in which she had lived in Texas, and with whom she has continued to reside since in Mexico. There was a demurrer to this plea, which was allowed, and the defendant required to answer over. The defendant then put in a plea of not guilty, and also a special plea in bar of alienage, and limitation of nine years before suit brought, founded upon a statute of the State of Texas.

There was a demurrer to this plea, but undisposed of for aught that appears on the record, when the parties went down to the trial of the issues of fact.

On the trial, the plaintiff proved a title in due form, under date of the 16th July, 1833, to the land in controversy, in her grandmother, Maria de Jesus Ybarba Trejo, followed by the official survey and judicial possession; also, that her grandmother died in possession of the premises, leaving the plaintiff's mother, her only child, at the death of her mother and father. Her grandmother and mother died about the year 1834. Her father was killed in the same year.

The defendants claimed under patents from the State of Texas, one dated 15th September, 1849, for three hundred and twenty acres; the other, the 20th of February, 1847, for like number; which covered the possessions on the tract in dispute of two of the defendants.

When the evidence closed, the counsel for the defendants prayed the court to charge the jury, that if the plaintiff, as a Mexican citizen, had continued to reside out of Texas from a period before the declaration of Texan independence, the action could not be sustained; which was refused, and a charge given, that her right remained as it was before the revolution, both according to general principles and by force of the treaty of

Jones et al. v. McMasters.

Guadalupe Hidalgo; and that if she had a right of property, that gave her the right to sue here.

The counsel also prayed the court to charge, that if the jury should believe, from the evidence, that the survey and grant under which the plaintiff claims title extends so as to include a large area out of the limits prescribed by law, as dated in the decree No. 190, of the laws of Coahuila and Texas, and that the error did not arise from mistake of quantity, but from intention to depart from the legal mode of survey, then the jury might consider the grant void as to such area as might be out of the limits prescribed by law, and also that the grant itself would be void in such cases for want of legal survey. Which prayer was refused.

The counsel also requested the court to charge, that if the jury should believe, from the evidence, that the survey and grant under which the plaintiff claimed extended so as to include a large area as aforesaid, and that the grant and survey were so made by fraudulent procurement on the part of the grantee, by an agent in that behalf, then the jury might consider the grant as entirely void.

The court so instructed the jury; but with the addition, that unless the alcalde commissioner was informed, at the time he gave possession and issued the title, of the fact that the survey had been extended so as to include a large area, &c., the grant would not be void; that the fraudulent procurement of the survey alone would not vitiate the grant.

The counsel also requested the court to charge, that the grant under which the plaintiff claimed is one of the class that might be forfeited for non-performance of conditions. That ordinarily a law of the Legislature, and judicial action under it, would be necessary to avoid such a grant. Yet that claimant might act so as to supersede the necessity of such a judicial determination; and if conduct of plaintiff amounted to an admission of the forfeiture, she could not afterwards set up the right, especially against a person who had, in the mean time, acquired a grant from the State; and that it was a question for the jury to determine, whether the conduct of the plaintiff amounted to an admission of forfeiture.

The court gave the instruction, with the addition, that it was a question as to the actual intention of the plaintiff; and the jury should be satisfied, considering the infancy and all other circumstances, that such was in fact her intention, or they should find for the plaintiff.

The jury found a verdict for the plaintiff.

As the practice in the court below permits pleas of whatever nature or description to be put in as a defence to the suit at

Jones et al. v. McMasters.

the same time, and without regard to the order of pleas, as known to the system of the common law, it will be necessary in the first place to examine the question raised on the demurrer to the plea to the jurisdiction. It is insisted that the plaintiff is a citizen of the State of Texas, according to the facts as stated in the plea and admitted by the demurrer; and if so, as she is not a citizen and resident of a different State, but a resident of Texas, the suit cannot be maintained within the 11th section of the judiciary act. We think the objection not well founded. The plaintiff was born under the dominion of the Mexican Republic, and has lived under it ever since her birth, and beyond all question, therefore, is a citizen of that Government, owing it allegiance, which has never been interrupted or changed. There has been no act of hers, or of any one competent to represent her, or to determine her election, indicating an intention to throw off this allegiance, and to attach herself to the new sovereignty of Texas. Having been born and having always lived under the old Government, the burden rested upon the defendants, who claimed that she was a citizen of the new one, to establish the fact of the change of her allegiance. (2 Cranch, 280; 4 ib., 209; 1 Dallas, 53; 20 Johns. R., 313; 3 Peters R., 99, 122, 123; 2 Kent C., 40, 41.) The facts set up in the plea prove the contrary. According to these, the plaintiff was nineteen years old when this suit was commenced, and between twenty-two and twenty-three years when the plea was put in to the jurisdiction. If she was competent to make an election while a minor, but after she had arrived at mature years, as to the Government to which she would owe al legiance, the presumption, upon the facts, is, that she has made it in favor of the one under which she has lived since, her birth. If she was incompetent to make it during her minority, then the allegiance due at her birth continued, and existed at the time of the commencement of the suit.

We do not enter upon the question of the domicil of a minor discussed on the argument, nor express any opinion upon it, as the question here is one of national character, and does not stand upon the mere doctrines of municipal law, but upon the more general principles of the law of nations. (3 Peters, 242; 2 J. Cas., 29.)

Assuming that the plaintiff is an alien, and not a citizen of Texas, the next question is, whether or not she is under any disability that would prevent her from the assertion of her title to the premises in question; in other words, whether her absence and alienage worked a forfeiture of the estate. The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired. Kelly v. Ham

Jones et al. v. McMasters.

son. (2J. Cases, 29; 7 Pet., 87.) And, consequently, the plaintiff's right still exists in full effect, unless the new sovereignty created, within which the lands are situate, have taken some step to abrogate it. The title remains after the revolution, and erection of the new Government, the same as before. The 10th section of the Constitution of the Republic of Texas, adopted the 17th March, 1836, provided that "no alien shall hold land in Texas, except by title emanating directly from the Government of this Republic.'

By the 20th section of the 7th article of the present Constitution of the State, it is provided "that the rights of property and of action which have been acquired under the Constitution and laws of the Republic of Texas shall not be divested; nor shall any rights or actions which have been divested, barred, or declared null and void, by the Constitution and laws of the Republic of Texas, be reinvested or reinstated by this Constitution; but the same shall remain precisely in the situation which they were before the adoption of this Constitution." And by the 4th section of the 13th article, it is provided "that 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."

It is understood that the Legislature of Texas has not yet passed any law providing for the steps to be taken to give effect to escheats for alienage, or otherwise; at least, no such law has been referred to, or relied on, in the argument; aud the course of decision in the courts of Texas appears to be, that, until some act of the Legislature is passed on the subject, effect cannot be given to the plea of alienage, or, at least, that some proceeding must be had, on the part of the Government, divesting the estate for this cause, before effect can be given to it. 15 Texas R., 495.

The defence of alienage, therefore, was properly overruled by the court below.

The counsel for the defendants insist that the estate of the plaintiff became forfeited under the Mexican laws, by her removal from the State of Coahuila and Texas to Matamoras, while under the Mexican Government, and a permanent residence taken up there.

But the removal that worked a forfeiture under Mexican colonization laws, and divestiture of the title without judicial inquiry, was a removal out of the Republic of Mexico, and settlement in a foreign country. The principle has no application in this case. 18 How., 235, (McKenny v. Sarvego.)