
    No. X.
    Republic of Texas v. William Young.
    (See .)
    
      Appeal from Red River County.
    
    
      
      .—Republic of Texas v. Young, p. 464.
      A colonist was not entitled to a grant as head of a family, unless his family was resident in Texas. Land Commissioner v. Ball, Dal., 366; Land Commissioner v. Reily, Dal., 381; Land Commissioner v. Walling, Dal., 524; Republic v. Skidmore, Dal., 581; 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 head-right grant. Lockhart v. Republic, 2 T., 127. But 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. State v. Skidmore, 5 T., 459; Russell v. Randolph, 11 T., 460. 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 certainty of returning on departure, were equivocal, he was not entitled to establish claims for donations of land. Republic v. Skidmore, Dal., 581; 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.
    
   BAYLOR, Justice.

William Young, the appellee m this case, in the year 1838 applied to the board of land commissioners for the county of Red River for a certificate of headright for one league and labor of land, and obtained the same; which certificate the investigating board of land commissioners, appointed by an act of Congress passed January, 1840, condemned as fraudulent; from this decision Young appealed to the District court, and there prayed that the judgment of said investigating board might be reversed, and that a certificate be issued to him for one league and labor of land.

The petition of the appellee, in order to sustain his claim to the land, contains the necessary and usual allegations required by the Statute; denies all causes of forfeiture, etc.; and among other things avers that Young in the month of November, in the year 1835, being a married man and the head of a family, was a resident citizen of the State of Mississippi; that he was there possessed of real and personal estate; that he sold all of the former and so much of the latter as he could not with convenience transport, with the intention of becoming a resident citizen of Texas; that in the month of February, 1836, he arrived in the county of Bowie, in said Republic, where he determined to domiciliate himself; that he remained in said county from February, 1836, until the middle of the month of March of the same year, when he returned to the State of Mississippi for the purpose of removing his family to the said county of Bowie, and returned with them to said county in the month of November, 1836.

That during the time of his absence from the State of Mississippi until his return, to wit, from the month of January, 1836, until the month of October of the same year, the family of the said petitioner were visiting their relations, and had no other home than that of the said Young; that he considered Texas his home from February, 1836, until the present time. Upon an issue joined traversing the facts, the jury gave Young a verdict, and a judgment was rendered thereon in his favor in the court below, from which judgment the Bepublic appealed.

The question for our determination is, could Young from the foregoing statement of facts be considered as residing in Texas on the day of the declaration of independence, as the head of a family, so as to entitle him, within the provisions of the Constitution, to his headright for one league and labor of land.

The jury having found for the petitioner, we are authorized to conclude that the facts are as stated by Young; that he was in the Bepublic as a resident citizen on the day of the declaration of independence; that he arrived in it a short time before that eventful period and left for Mississippi shortly thereafter, with a view of bringing his family on to Texas. These facts being established, we think that the petitioner, both by the Constitution and the law as it then existed, is entitled to land as a headright claimant.

It was contended in argument that as Young was in the Bepublic so short a time before the declaration of independence, and having quitted it immediately thereafter, he could not be considered as domiciliated in Texas and therefore ought not to have the land claimed by him. The question of domicile is often a very delicate and nice one. In consulting fhe authorities, however, on this point, we find one of the rules as to domicile to be this: It is of no consequence in such a case how short his residence may have been, for it is the fact coupled with the intention that settles his domicile. And here the jury have substantially found both that Young was not only a resident citizen of the Bepublic on the day of the declaration of independence, but that he was so at that time with the intention of remaining (animo, manendi). This made Texas instantaneously his place of domicile. He was therefore entitled to land as an emigrant; and the only remaining question is, to what quantity, as his family was at that time in the State of Mississippi, without any fixed habitation. Mr. Justice Story, in his fourth rule on this subject states (page 44, Conflict of Laws), “that a married woman follows the domicile of her husband.” This results from the general principle that a person who is under the power and authority of another possesses no right to choose a domicile. The absence, therefore, of the wife, at the time alluded to, especially as she had no fixed home in the State of Mississippi, could not affect the petitioner’s right as to the quantity of land he was entitled to by the Constitution and law then in force. From these considerations, coupled with the fact that Young has ever since remained with his family in Texas, we are of opinion that the judgment ought to be affirmed.

Affirmed.  