
    No. XII.
    The Republic of Texas v. A. Skidmore.
    (See .)
    
      Appeal from Red River County.
    
    
      
      .—Republic v. Skidmore, p. 581.
      Under Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), it was necessary to prove in court the same facts which the statute required for the satisfaction of the Board of Land Commissioners. Land Commissioners v. Reily, Dal., 381; Johns v. Republic, Dal., 621; Land Commissioners v. Raguet, 2 T., 98. Claimants were required, prior to Act of February 2, 1848 (Gammel’s Laws of Texas, vol. 3, p. 18), to prove same facts under section 11 of Act of February 4, 1841 (Gammel’s Laws of Texas, vol. 2, p. 635). Tichner v. State, 2 T., 269; State v. Mason, 2 T., 315; Linn v. State, 2 T., 317. Acts of December 14, 1837, and February 4, 1841, required applicant to prove that he did not refuse to participate in the war and that he did not assist the enemy; and if applicant’s intention of remaining while in the Republic, and certainly of returning on departure, were equivocal, he was not entitled to establish claims for donations of land. State v. De Casinova, 1 T., 401; Thomerson v. State, 8 T., 172; Russell v. Randolph, 11 T., 460; Patton v. Evans, 15 T., 363. But temporary absence did not forfeit claim. Republic v. Young, Dal., 464. Applicant to establish headright claim under Acts of December 14, 1837, and February 4, 1841, was required to prove both actual residence at date of declaration of independence and continued residence to time of making application to establish claim. Land Commissioners v. Walling, Dal., 524; Jones v. Republic, Dal., 621; State v. De Casinova, 1 T., 401; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichner v. State, 2 T., 269; Land Commissioners v. Wiley, 3 T., 237; Paschal v. Perez, 7 T., 348; Jones v. Montes, 15 T., 351. Titles issued by alcaldes and commissioners after closing of Land Office by Act of Consultation on November 13, 1835 (Gammel’s Laws of Texas, vol. 1, p. 541), which took effect immediately on adoption, are null and void. Donaldson v. Dodd, 12 T., 381; Spier v. Laman, 27 T., 205; Parker v. Baines, 59 T., 15. If the title was actually issued before November 13, 1835, making out and delivering the testimonio shortly afterwards did not invalidate the title. Houston v. Blythe, 60 T., 506. Holders of orders for surveys and headright certificates, issued prior to November 13, 1835, could only establish their claims in the mode prescribed by Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), upon proof of facts enumerated in section 12. Land Commissioners v. Reily, Dal., 381; Land Commissioners v. Walling, Dal., 524; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Jones v. Menard, 1 T., 771; Trimble v. Smithers, 1 T., 790; Land Commissioners v. Raguet, 2 T., 98; Land Commissioners v. Riley, 3 T., 237; Capp v. Terry, 75 T., 391. All certificates returned by commissioners as genuine, but not recommended on account of want of oath required by section 12 of Act of December 14, 1837, were validated and directed to be patented by Act of January 19, 1841 (Gammel’s Laws of Texas, vol. 2, p. 528). Whitehead v. Foley, 28 T., 1; Spofford v. Bennett, 55 T., 293. Under Act of February 5, 1840 (Gammel’s Laws of Texas, vol. 2, p. 335), patents could only issue on certificates of recommendation from Board of Land Commissioners and holders of unrecommended land certificates had no standing in court without it. Norton v. Land Commissioner, 2 T., 357; Bracken v. Wells, 3 T., 88, 90; Kemper v. Victoria, 3 T., 135; Miller v. Brownson, 50 T., 583. All surveys supported by recommended certificates valid; without them, invalid. Warren v. Shuman, 5 T., 441; Scott v. Mather, 14 T., 235; Whitehead v. Foley, 28 T., 268. Headright certificate is not color of title, unless recommended. Horton v. Crawford, 10 T., 382; Whitehead v. Foley, 28 T., 268. Prohibition in Act of February 5, 1840, against surveys on unrecommended certificates after May 1, 1840, did not legalize surveys made either prior or subsequently on unrecommended certificates. Warren v. Shu-man, 5 T., 441. It seems that surveys on genuine headright certificates are valid, though not recommended by commissioners. Howard v. Perry, 7 T., 259; Hart v. Gibbons, 14 T., 213. But under Act of January 29, 1840 (Gam-mel’s Laws of Texas, vol. 2, p. 313), authority to issue patents on first class headright certificates, was based on recommendation. Miller v. Brownson, 50 T., 583. Under extension of time allowed by Constitution of 1845, a survey made on an unrecommended certificate prior to January 1, 1844, suit to establish claim could be maintained in 1847. Lewis v. Mixon, 11 T., 564; Hart v. Gibbons, 14 T., 213; Scott v. Mather, 14 T., 235. Under Act of February 7, 1860 (Gammel’s Laws of Texas, vol. 4, p. 1410), providing for re-examination of rejected warrants and certificates, a rejection made before limit of time fixed in section 11 is not void, the object of the statute being to give claimants ample time to prove their claims. Durrett v. Land Commissioner, 28 T., 687. Under Act of April 25, 1871 (Gammel’s Laws of Texas, vol. 6, p. 962), holders of unlocated certificates were not required to locate them at any particular period between passage of law and January 1, 1875. Laws in force prior to Act of November 29, 1871 (Gammel’s Laws of Texas, vol. 7, p. 47), did not require certificate and field notes to be returned within twelve months after survey. Snider v. I. & G. N. Ry., 52 T., 306; Snider v. Methvin, 60 T., 487. Under Rev. Stats., 1895, arts. 4138 and 4145, survey must be made withm twelve months after entry, and field notes returned within twelve months after survey. Von Rosenberg v. Cuellar, 80 T., 249. A colonist was not entitled to a grant as head of a family, unless his family was resident in Texas. Land Commissioners v. Bell, Dal., 366; Land Commissioners v. Reily, Dal., 381; Land Commissioners v. Walling, Dal., 524; Langford v. Republic, Dal., 588; Republic v. Inglish, Dal., 608; Johns v. Republic, Dal., 621; Grooms v. State, 1 T., 568; Republic v. Skidmore, 2 T., 261; Tichnor v. State, 2 T., 269; Lewis v. Ames, 44 T., 319, 345; Lott v. King, 79 T., 292; Hill v. Moore, 85 T., 335; Byrn v. Kleas, 15 T. C. A., 205; Union Beef Co. v. Thurman, 70 Fed. Rep., 965. An unmarried colonist, under twenty-one years of age, was not entitled to a headright grant. Lockhart v. Republic, 2 T., 127. Eut it will be presumed from the fact that a headright certificate was granted by the proper authority, that the grantee was the head of a family, and evidence is not admissible in a collateral proceeding to show that he was not married and that his family was not in Texas. Johnston v. Smith, 21 T., 722; Bowmer v. Hicks, 22 T., 155; Howard v. Colquhoun, 28 T., 134; Burkett v. Scarborough, 59 T., 495; Capp v. Terry, 75 T., 391; Boone v. Hulsey, 71 T., 176; Hill v. Moore, 85 T., 335; Byers v. Wallace, 87 T., 503. Grant is valid, if the grantee in good faith intended to move his family to Texas. Republic v. Young, Dal., 464; State v. Skidmore, 5 T., 469; Russell v. Randolph, 11 T., 460. Removal and intention to remain for an indefinite time changes domicile, though there may be a floating intention to return at some future time. State v. De Casinova, 1 T., 401; State v. Skidmore, 5 T., 469.
    
   BAYLOR, Justice.

—Skidmore commenced his suit against the Republic in the court below upon a certificate of head right, for the recovery of one league and labor of land, which certificate had been rejected by the investigating board of land commissioners.

The petition contains the usual allegations in such cases, and upon issue joined he obtained a verdict and judgment in his favor for the quantity of land claimed in his petition. To reverse which the Republic prayed an appeal, and assigns for error here, that the verdict is against the law of the case and the evidence adduced on' the trial.

The evidence certified to by the judge below is as follows:

“Skidmore came to Texas in February, A. D. 1836, and remained until June of the same year. He left, stating that he intended to return, and did so in April, 1839. Whilst here in 1836 he performed all the duties incident to a good citizen. Upon his return he laid claim to a selection of land made by him in 1836. When he left in 1836, he left iwith the intention, as stated by himself, of going for his family; and upon his return he brought his wife and children with him. He also proved by two witnesses that at the date of the declaration of independence he was a married man and the head of a family.
“The Republic upon cross-examination proved by the same witnesses that the family of Skidmore were at that date residents of the State of Alabama, in the United States of NOrth America.”

In considering the question whether the verdict of the jury ought to be set aside as incompatible with the evidence and law of the case, we do not deem it necessary to go into all the refined and subtle distinctions as to domicile. It is sufficient to say that in order to make a man a resident citizen within the meaning of the Constitution, he must have resided at the date of the declaration of independence within the Republic, with the intention (animo manendi), and that if he left it, he must have quitted the country animo revertendi. Testing the appellee’s case by these principles, we think the foregoing statement of facts is too vague and loose to sustain his claim.

There is no satisfactory evidence by two witnesses, as the law requires, that his residence was in this country at the date of the declaration of independence. The record, it is true, states that Skidmore was here at that time; but it is silent as to how that fact was proved. It also states that he stayed in the country a few months and performed all the duties incident to a good citizen. What those duties were, we are not informed and are left to conjecture.

By his own showing, he was not incumbered with a family; and it is certain, during his stay in the country, Texas expected every man to do his duty. There was nothing, so far as we are informed by the proof, to have prevented Skidmore from rendering military services during that eventful period. Had he performed such meritorious acts, it would have gone far to show that Texas was indeed his adopted country, and that he was not a mere sojourner in the land. Nor can much reliance be placed on his loose and idle declarations, that he intended to return to Texas. Actions speak louder than words. Skidmore’s long absence from the country, and that absence being totally unaccounted for by the proof, together with the fact that his home, family and property were in Alabama during all that time, lead us irresistibly to the conclusion that he had not at the date of the declaration of independence made this country his residence animo manendi; and that when he left it, he did not do so with the certain intention of returning.

This court has repeatedly determined that it would not in ordinary cases disturb the verdict of a jury unless it was manifestly against the evidence produced on the trial. But the appellee’s case is one of that class of cases in which a great national policy is to be effected and carried out; and in doing this, we must take special care to construe the Constitution and laws so that those who receive the bounty and munificence of the government shall give us that increase of population contemplated by the law, within a reasonable time, and the services of its citizens when needed in the hour of trouble and of danger.

Skidmore came to the country, made a selection of land, stayed but a few months, then returned to his home, family and property in a foreign land, there remained with them for nearly three years, vfithout accounting for his long absence. Under such circumstances, to give him all the benefits of a headright claimant of the first class would be a dangerous precedent, situated as our country is, and most disastrous in its consequences to its best interest and happiness. Persons claiming to be emigrants must understand that such equivocal conduct, as evinced in this instance, relative to their inhabitancy, intention of remaining and returning to the country, will not entitle them to the liberality of this Republic.

But it is said this decision conflicts with the decision made in the case of The Republic v. Young. In that case, it is true, the court went a great way in sustaining Young’s claim. They gave the Constitution and laws the most benign and liberal construction they could possibly bear. We think, however, there is a marked difference between the two cases. Young was here, with the intention of remaining in the country, as we thought, at the date of the declaration of independence, from the following circumstances. He returned to Mississippi, where he had left his family without any fixed habitation; he had broken up his home previously to coming to this country; sold all of his real estate and so much of his personal property as he could not conveniently bring with him to Texas; he returned to the country without delay where he has remained ever since, subject to taxation and to do military duty. There is another clear distinction between the two cases. Young resided in this, country from the date of the declaration of independence until the passage of the land law in 1837, with the exception of his temporary absence to the State of Mississippi, with the view of bringing his family to Texas. This temporary absence, under the facts and circumstances of his case, did not in our opinion preclude him from bringing himself within the provisions of the twelfth and seventeenth sections of that law. The twelfth section requires the applicant for land to prove that he was actually a citizen at the date of the declaration of independence, and has continued so up to the time of the passage of the act. The seventeenth section provides, in all cases, that the claimant shall apply for his certificate of headright in the county in which he or she may reside at the date of the passage of the law; which was on the 14th of December, 1837. At the date of this act, Skidmore had no fixed residence in any county within this Republic; neither could he comply with the requirements of the twelfth section, for he did not return to Texas until April, 1839, long after the passage of the act of 1837. From these considerations, he is clearly not entitled to the benefits of the land law of 1837. The traveling board of land commissioners therefore did right in rejecting his certificate for one league and labor of land. See Board of Land Commissioners v. Walling, decided by this court in 1843.

Upon the whole, to sustain the verdict and judgment in this case would be going, in our opinion, one step further than the court went in the case of The Republic v. Young, and this we do not feel inclined to do, especially as some of the members of the court were not entirely satisfied with the doctrines laid down in that case. It is therefore the opinion of a majority of the court, that the verdict and judgment of the court below be set aside, annulled and reversed, that the case be remanded, and a new trial awarded in the court below, in order that the appellee may show by additional proof, if he can, whether he be entitled to the amount sued for, or a less quantity; that he be permitted to amend his petition to meet the circumstances of his case, and that he pay the costs in this court expended.

Reversed and remanded.

Judge Morris says: “In concurring with the within opinion, I do not wish it understood that any opinion is expressed by me on the point which seems set forth in the reasoning, that it might be and is necessary that a party should be actually present in the country at the time of the passage of the land law of 1837.”  