
    Hardy and others v. De Leon.
    'Where the defendant had obtained special leave to amend his answer within a specified time, and failed to file his amendment within the time specified and up to the time of trial, it was within tho discretion of the court to refuse to permit the amendment.
    ‘Where no right of the defendant was affected ultimately by the rulings of the court respecting the pleadings, those rulings cannot be made by him a ground for reversing the judgment.
    ‘Where the plaintiff claims title under a grant issued by the Government of Mexico previous to the Revolution of 1836, it is not necessary for the petitiou to allege that the grant has been recognized by this Government. The cession or conquest of a country does not affect the rights of property. (Note 38.)
    jPersons residing here at the Declaration of Independence became thereby citizens.
    Where a person left his own country by constraint-and went involuntarily to reside in another, his change of residence did not produce a change of his national domicile, but his original domicile and citizenship were retained.
    'The domicile of the parents draws to it that of their infant children.
    An erroneous instruction upon an immaterial or irrevolant point or mere abstract question will not authorize a reversal of the judgment.
    fit is not error for the court to refuse instructions which assume the existence of facts not proved and are based upon that assumption.
    A court is never bound to give instructions in referonco to a supposed state of facts when the facts of the case are clear and uncontradicted. Nor is a court bound to give instructions which require modification or qualification. Unless the proposition as asked is true and pertinent to the case, it is not error in the court to refuse it.
    it is the duty of the jury to find the very point in issue; and their verdict finding a matter which was not in issue can have no validity, and cannot constitute tho basis of a judg-
    In respect to their general rights and disabilities there is no difference in general between alien friends and alien enemies. But there may be cases in which their rights and disabilities are widely different, as where by treaty or statute aliens are enabled to hold lands as citizens, and consequently to maintain any action respecting them which a citizen may maintain. In such a case an alien friend could sue, while an alien enemy, unless resident here, could not maintain an action in our courts. The plea of alien enemy in such a case would be very different from that of alienage merely.
    -In general the plea that the plaintiff is an alien interposed to an action respecting real property, goes to defeat the right of action altogether. But the plea of alien enemy goes merely to suspend the remedy during the existence of tho war. And this plea is not to be lavored by intendment. (Note 39.)
    ‘Where a person dies leaving issue who are aliens, the latter are not deemed his heirs in law, and the estate descends to the noxt of kin who are citizens; and if suit be brought for the recovery of land in the joint names of those who are aliens and those who are citizens, it will be abated as to the former and conducted to judgment in the sole right of the latter," (Note 40.)
    Where upon a plea that the plaintiffs are alien enemies the verdict finds that certain of them arc aliens, but that one of them is a citizen, the defendants cannot object that the suit is abated as to the former, whom they Have alleged to be alien enemies, and subsequently conducted in the sole right of him against whom the verdict determined no issue.
    * If a defendant has acknowledged the title of plaintiff, he cannot afterwards dispute it.”
    Where there arc several parties to the record on the samo side, the admissions of one will be taken as the admissions of all where there is a joint interest or privity of design between them.
    •“A recital of one deed in another binds the parties and those who claim under them by matters subsequent.”
    Where there was no evidence which under any instructions which the court might have given could have warranted the jury in finding a particular fact, it was not error in the court to refuse instructions respecting the legal consequences of that fact.
    “To constitute the abandonment of one's country there must be a change of domicile complete and final. (Nolo 41.)
    "The ground on which it is proposed to disfranchise a party and to divest his title to his properly must he clearly and conclusively established.
    ;It is not error to instruct the jury that a purchase made by a sheriff or an administrator at his own sale is deemed fraudulent in law, and that a fraudulent sale is void.
    jSnstructicins given at the instance of a party cannot be assigned as error by that party.
    
      If by mistake the plaintiff strikes out his prayer for specific relief, it will not deprive him of his right to the relief appropriate to his case. Such relief may be granted under the prayer for general relief.
    A general verdict for the plaintiff determines every issue in his favor, and the judgment ought to embody the legal consequences of tho verdict. (Note 42.)
    "Where no interrogatories are propounded to the defendants, their affidavits to [313] their answers cannot make them evidence, nor can the affidavits have any legal effect whatever.
    The fact that the subject-matter of a suit is properly of equitable cognizance, does not in onr practice change the rules of procedure nor require the observance of rules peculiar to a court of chancery. (Note 43.)
    Appeal from Victoria. This suit was brought on the 22d day of June, 1844, ■by Fernando De Leon, as guardian of Francisco Santiago De Leon and next friend of Martin De Leon and Francisco De Leon, infant children and heirs of Sylvester De Leon, against the appellant Hardy, to recover the possession of •a league of land. The plaintiff claimed title in ills ward and the other infant heirs of Sylvester De Leon, on whose behalf the suit was brought, derived by inheritance from their father, to whom, as a colonist in the colony of Martin De Leon, it liad been granted by authority of the State of Coahuila and Texas ■on the 22d dajr of April, 1S33. The suit as instituted was in form an action ■of trespass to try title.
    The plaintiff, by leave of the court, subsequently amended his petition and made ail the appellants -defendants. The amended petition alleges in substance that the ancestor of the minor plaintiffs, Sylvester De Leon, died in 1838 seized and possessed of the league of land in controversy; that the infant plaintiff's are his children and heirs; that in 1S41 the land in question was illegally sold for taxes pretended to be due thereon for the years 1839 and 1S40, and was purchased by the defendants, G-ambel, Newcomb, and one Van Norman, (who was also made a defendant, but released upon payment of the amount of his tax-purchase and interest thereon;) that this sale and purchase were illegal and void, and that the defendants who liad thus purchased knowing tins, and for the purpose of defrauding the, plaintiffs and of defeating their right to redeem the land and depriving them of their property and rights, ■conspired and confederated with the defendant Hardy, agreeing to share and divide the land with him in consideration that he should administer on the estate of the deceased Sylvester De Leon and procure the land to be sold and divided between them agreeably to their said fraudulent agreement; that in pursuance of this agreement Hardy, representing himself to be a creditor of said decedent, applied for and obtained letters of administration on the estate of the deceased Sylvester De Leon on the (22d day of March, 1S43 ; that the deceased at the time of his death was not indebted, and that when the sale for taxes took place there were no taxes due upon the land; that Gambel, Newcomb, and Van Norman made out and presented to the said Hardy, as administrator, &c., accounts against the estate of the decedent, consisting of double the amount of the purchase-money named in their deoils of purchase at tire sale for taxes, with interest; that these accounts were accepted and admitted by the administrator, and, except the claim of Newcomb, were allowed by the Probate Court; that these pretended creditors of the estate obtained from the Probate Court an order for the sale of the land to pay said claims; that it was agreed between the parties to these proceedings that they should not bid against eacli other at the sale, and that each should bid off enough of the land to satisfy his claim, and that the said administrator should receive of the proceeds an amount sufficient to compensate him for his trouble ami expense in tile administration of the estate; that the fraudulent designs and combination of the defendants prevented others from purchasing, and that their said understanding and agreement were carried into effect by them; that the defendant Ingram was a bidder at the sale, and purchased a part of the land in his own name, but for the use and benefit of the defendant Hardy; that the defendant Hardy, as administrator, caused the laud to be sold, and executed to the other defendants deeds to the several portions brought by them in pursuance of them fraudulent agreement and conspiracy, and then resigned the administration, and is now in the possession of the premises purchased by Ingram as aforesaid. The petition charges that the tax sale and tiie administrator’s sale and all tiie acts of tiie defendants in the premises were fraudulent and void, and were contrived and designed to cheat and defraud them of their right and title to the land in question. It concludes with a prayer for process, and that the acts of the Probate Court and of tiie administrator and the several deeds and conveyances under which tiie defendants claim title be cancelled and annulled, and that the plaintiff have a writ of possession and his damages for tiie wrongful occupation and detention of the premises and for general relief.
    At the Spring Term, 1845, the plaintiff filed a further amendment to his petition, under the name of a “ supplemental bill,” alleging, in substance, a. fraudulent combination on the part of the defendants to deprive the infant plaintiffs of their right and title to tiie land in question, and that the administration and all the proceedings therein were transacted in pursuance of that combination and intention, and with the design of precluding the plaintiffs of their right to redeem the land so sold for taxes, and to substitute for their tax-deeds the deeds of the administrator, the more effectually to consummate their fraudulent designs and purposes.
    At the same term (Spring Term, 1845) the defendants, Ingram, Hardy, and Newcomb, filed separate answers. The defendant Ingram filed a general demurrer, and at the same time answered, denying tiie truth of tiie charges contained in the petition, and especially that the purchase made by him at the administrator’s sale was made, as alleged, for the benefit of the defendant Hardy, but averring that the same was 'made in good faith and for his own benefit, and that he now is the bona fide owner by virtue of said purchase, concluding with a general denial.
    The answer of the defendant Hardy denies the charges of fraud, and disclaims having any interest in the land. Tiie answer of the defendant New-comb consists of several pleas, which are in substance, 1st, that the ancestor of tli(' infant plaintiffs, the said Sylvester De Leon, was an alien, born in the Republic of Mexico, and was domiciliated in and adhering to said foreign. State during his life-time and at the time of his death, by reason of which the land claimed by the plaintiffs reverted to the Government and became vacant, and that he, the defendant, is in possession of a portion thereof 2d, that Sylvester De Leon, the ancestor of the plaintiffs, on the 1st day of March, 1830, refused to participate in tiie struggle for independence, and i.hafc lie left the country to avoid a participation therein ; and that afterwards, and while domiciliated in tiie Republic of Mexico, he died without having received-any pardon or restoration to his rights in the Republic of Texas, which rights became thereby forfeited and his lands became vacant; 3d, he denies that the plaintiff had any right or title to the land; 4th, he further alleges that (he decedent removed out of and abandoned the country, whereby'the laud in question became vacant, and that he, tiie defendant, is rightfully possessed, &c. Then follows what purports to be his answer, in which lie denies that he purchased at the alleged sale for taxes, but admits that lie purchased at the administrator’s sale of the lands of the plaiutiff’s intestate about seventeen hundred acres, and alleges that he holds said land under and by virtue of the deed of the administrator of the intestate, which deed he exhibits as a part of his answer.
    Tiie answer of the defendant Gambel, filed at the Fall Term, 1845, contains,. 1st, a general demurrer; 2d, a plea that the ancestor of tiie plaintiffs, Sylvester De"Leon, at the time of his death, was an alien enemy; 3d, that tiie infant plaintiffs are alien enemies; 4th, “not guilty.” The answer of tiiis defendant admits that he did purchase the league of land in question at the sale for taxes mentioned in the petition ; that lie conveyed a portion of it to-the defendants Newcomb and Van Norman, they paying a portion of tiie purchase-money; he admits the,administration by X-Iardy; the presentation and allowance of his claim for the amount which lie alleges the law allowed hint ■■as “redemption money; ” the administrator’s sale and his purchase at that sale of about seventeen hundred acres of tlie land in controversy.
    The plaintiff demurred and moved to strike out certain pleas of the defendants for causes assigned, and amended his petition by striking out the prayer for a writ of possession.
    The defendant Gambel amended his answer by what purport to be several pleas, in substance as follows: 1st, alleging- that Sylvester De Leon, tlie ancestor of the plaintiffs, at tlie time of his deatli was an alien enemy; 2d, that the infant plaintiffs were at tlie time aliens, resident in the Government of Mexico; 3d, that the ancestor of the plaintiffs, “the,said Sylvester De Leon, acquired his claim to said land as a colonist of the empresario Martin De Leon bjr a grant from Fernando De Leon, commissioner of said colony,” and that the said Sylvester abandoned tlie country before lie had complied with tlie 'conditions of his grant; 4th, that the infant plaintiffs are alien enemies; 5th, “ not guilty.” The defendant Hardy amended his answer by adding- the plea of “hotguilty.”
    At tlie Fall Term,'1847, the defendant Newcomb, having at the Fall Term preceding obtained special leave of tlie court to amend his answer within a limited time specified, filed an amendment containing- several pleas, in substance as follows: 1st, a general demurrer; 2d, pleading- that Sylvester De Leon was an alien enemy; 3d, that he (the said Sylvester De León, ancestor of the infant plaintiffs) acquired his claim to the said league of land as a colonist of tlie empresario Martin De Leon by a grant from tlie commissioner of said colony, Fernando De Leon, and that the said Sylvester abandoned the. country without complying- with the conditions of his grant; 4th, that the said Sylvester held the said land previous to and on the day of tlie declaration of independence of the Republic of Texas, and that he then and ever after refused to participate in the struggle for independence; 5th, that lie left the country to avoid a participation in the struggle for independence; 6th, that in the war of independence he joined and adhered to the enemy; 7th, that the infant plaintiff's are alien enemies; and, 8th, “not guilty.”
    The several answers and amended answers of the defendants, except tlie plea of “not guilty” of the defendant Hardy, were verified by the affidavits ■of the respective parties.
    On motion of tlie plaintiffs the several amended pleas of the defendant Newcomb were stricken out, not having been filed within the time limited by the order of the court. The court sustained exceptions to the first and second pleas of tlie defendant Gambel. The defendant Newcomb was permitted by the court to file an amended plea, to which the plaintiff excepted; but his exceptions were overruled. This appears to have been the same as plea number seven of his amended pleas, which had been stricken out, and which alleges that the infant plaintiffs are alien enemies. The court overruled tlie several demurrers of the defendants. The plaintiffs dismissed their suit as to Van Norman and Cunningham, who had been made defendants. These several rulings and proceedings occurred on the 8th day of October, 1847.
    On the same day, the cause being called for trial and issue being joined on the plea of alien enemy, a jury was impaneled to try that issue. On tlie trial it was proved that the infant plaintiffs were the children of Sylvester De Leon; that Sylvester De Leon and his wife, tiie mother of said children, were citizens •of Texas before and at the time of the declaration of independence, and remained here at their home until June of the same year; that they were then sent by the military authorities of the Republic to Louisiana; that the mother of the plaintiffs there died; their fattier, the said Sylvester De Leon, then went with his children to Mexico, where the latter remained with their grandmother in the State of Tamaulipas while their father returned lo Victoria, his former residence in Texas; that lie expressed the intention of making Texas his future home, and sold some of his property there to obtain money to defray tlie expenses of going and bringing back iiis children from Mexico; that when on his way back to Mexico for that declared purpose he vyas killed between tlie Nueces and the Rio Grande in the year 1838; that Francisco Santiago, the-youngest, returned to and has resided in Victoria, in Texas, since before the commencement of this suit, and that Fernando De Leon was duly appointed his guardian in 1S44, before the commencement of this suit. On the trial of tlie plea of alien enemy the court instructed the jury “that if one of' the minor heirs of Sylvester De Leon removed from Mexico to Texas, and had the plaintiff in this suit appointed his guardian by a Court of Probate in Texas, it was such a recognition of his rights as a citizen as removed the disability of alien enemy.” The counsel for the defendants requested of the court tlie following instructions, which tlie court refused :
    . “1st. That if Sylvester De Leon was residing in Mexico, and visited Texas merely for the purpose of making arrangements for his removal at some future time, he was and his children were alien enemies.
    ‘•ad. That if Sylvester De Leon considered Mexico his residence at the time of his death, he was and his children were alien enemies.
    “3d. That if the laws of Mexico acknowledge the children of Sjdvester De Leon, now resident in Mexico, as citizens of Mexico, they are alien enemies.”
    The jury returned the following verdict: “ We the jury find from the facts and evidence that Sylvester DeLeon, by his acts, was an alien from the country and a citizen of Mexico, and that his two children, Martin De Leon and Francisco, were aliens and citizens of Mexico; and that Francisco Santiago De Leon, by his acts, is a citizen of Texas and entitled to his rights.”
    Upon this verdict the court gave judgment that the suit abate as to the plaintiffs Martin and Francisco De Leon, and that it proceed in tlie right of Francisco Santiago, in tlie name of his guardian, Fernando De Leon. On a subsequent day of the term the cause was continued, and afterwards the defendants tiled exceptions to the judgment rendered upon the verdict, but no action appears to have been had upon or notice subsequently taken of these exceptions.
    The cause was continued from term to term until the Spring Term, 1849r when it was tried. The trial appears to have comprehended all the-issues presented by the defendants in their several pleas, including as well those which were stricken out as others. Theplaintiff introduced in evidence his title to the land, purporting to have been issued to the ancestor, Sylvester De Leon, by Fernando De Leon, as commissioner of De Leon’s colony; the document offered in evidence being certified by the commissioner to be a copy of' tlie original now remaining in the archives of the colony. To its admission in evidence it was objected, 1st, that the certificate of the commissioner was -without date; 2d, that it purported to'be a copy, and not the original; 3d,, that the paper upon which it was written was not properly legalized. The-objections were overruled, and upon proof of tlie death of the witnesses, and of their signatures, and also of the signature of the commissioner, and that tlie stamps upon tlie paper were as those used in issuing titles at that date, tlie document was admitted in evidence. It was proved that the infant plaintiff Francisco Santiago De Leon was born in New Orleans, Louisiana, shortly after his father’s family arrived there, having been removed from tlielr home in Texas by its military authorities. There was testimony respecting the removal of Sylvester De Leon and his family from this country to New Orleans, in Louisiana, and his subsequent return to this country and death, in substance the same as on the former trial. There was proof of the sale of the land by the sheriff for the taxes as alleged, at which sale the defendant Gambel was the ostensible purchaser, but really for himself and the sheriff, and of the sale by the sheriff to the defendant Newcomb of his portion. There was also proof of the administration by the defendant Hardy, and of his proceedings and of the sale, and purchase by the other defendants as alleged in the petition. There was testimony, both verbal and written, introduced' by theplaintiff, establishing the material facts alleged in the petition, and conducing to show a fraudulent eonjtbination and conspiracy on tlie part of the defendants, as alleged, to» cheat ancl defraud the plaintiff'of his right and title to the land in,question. There was testimony tending to impeach the sale for taxes as fraudulent,, and the administration and the proceedings and purchases under it as procured and effected by the defendants with the intention and purpose of consummating a fraudulent conspiracy to deprive the heirs of Sylvester De Leon of their right and title to the land in controversy. The defendants New-comb, Gambel, and Ingram gave in evidence the proceedings of the Probate Court in the matter of the administration by the defendant Hardy, and the several deeds executed to them by the said Hardy as the administrator of the estate of the said Sylvester De Leon, purporting to convey to them portions of the league of laud granted to the said Sylvester as a colonist, it being the lands comprehended in the plaintiff’s grant, by which deeds they claimed to be the rightful owners of the land. They also introduced evidence of the sale for taxes. They offered to introduce “ experts for the purpose of proving that the letters and figures ‘y, 33,’ on the copy of the grant were not the writing or figures of Plores, the then commissioner of the government, authorized to-legalize stamped paper,” but this testimony,being objected to by the plaintiff, was excluded by the court.
    The counsel for Gambel and Ingrain requested the court to instruct the-jury—
    1st. That if they believe from the evidence that Sylvester De Leon abandoned the country before his death, the land claimed as his headlight became entirely vacant.
    2d. That an alien cannot inherit from an alien claiming under the Government of Coahuila and Texas.
    3d. That in order for an alien to inherit lands in Texas, he must be capable at the death of the ancestor.
    4th. That if the jury believe that the title of the plaintiff was granted in-fraud of tlie Government of Coahuila and Texas, it is void, and he cannot recover.
    5th. That the acts of the Probate Court are conclusive as to the indebtedness of the estate of Sylvester De Leon in the amounts allowed to the defendants Newcomb and Gambel, aud the legality of the order of sale, unless they were obtaiued by fraud; and even if the order was fraudulently obtained, all persons claiming under such sale hold good and valid title, unless they were participants'in the fraud or had a knowledge of it.
    Oth. That the admissions of one of the parties can have no effect upon the title or claim of another.
    7th. That Hardy’s admissions cannot have any weight as evidence against Newcomb, Gambel, and Ingram.
    8th. That the jury cannot find damages in this case against M. Hardy, no-amount of damages being claimed in the petition.
    9th. That if they believe that Francisco Santiago De Leon was an alien at the time of his father’s death, he cannot inherit land in Texas.
    These instructions the court gave as asked, except the first, which was refused.
    The counsel for Newcomb requested the court to instruct the jury that—
    1st. The jury are bound to regard Sylvester De Leon as an alien at the time of his death in 1838, that fact having been found by a previous jury.
    2d. If the jury believe from the evidence that the title to the plaintiff or deed' to Sylvesler De Leon was fraudulent or antedated, they must disregard it as a title.
    3d. If they find from the evidence that Sylvester De Leon abandoned the country after the grant of land to him as a colonist, he lost all interest in such, grant, and the laud reverted to the mass of public domain, and at the time of his death he had no interest in said land to descend to any one.
    4th. The finding of the previous jury that Francisco Santiago De Leon was a citizen at the time of the institution of this suit does not necessarily imply that he was a citizen of the Bepublic of Texas at the time of the death of his ancestor, Sylvester De Leon; and the jury may now look into that fact, and if' they should find from the evidence that said Francisco Santiago De •Leon was an alien residing in Mexico at the time of the death of his ancestor, who was also an alien, he was then incapable of taking by inheritance real estate in Texas.
    Of these instructions, the first, second, and fourth were given as asked; the third was refused.
    At the request of the plaintiff, the court instructed the jury “that a purchase •of property, at a sheriff’s sale or au administrator’s sale, by the sheriff or administrator making such sale, is absolutely void and fraudulent; that if the •order of the Probate Court was legal and the sale fraudulent, the sale is void.”
    The jury returned a verdict for the plaintiff; whereupon the court gave judgment annulling the order of the Probate Court directing the sale of the land in question ail'd the administrator’s sale, and the several deeds and conveyances made in pursuance of the administrator’s sale and the sale for taxes under which the defendants claimed title, and awarded a writ of possession.
    The defendants moved for a new trial on the grounds, 1st, that the jury found contrary to law and evidence; 2d, that the court misdirected the jury.
    This motion the court overruled and the defendants appealed.
    Paschal, for Newcomb; Neill & Cunningham, for the other appellants.
    I. It was palpable error in the court to instruct the jury that any act of the Probate Court in appointing a guardian to the minor Francisco Santiago De Leon could of itself make a citizen of the Republic of Texas of one who was an alien enemy. Aliens could only have been naturalized according to the laws ■of the country prescribed in Constitution of the Republic of Texas, General Provision, sectiou (i. That Sylvester was an alien, see 1 Mart. R., 225; 4 Cra. R., 321; 3 Binn. R., 75; 7 Wheat. R., 535; 2 Kent Comm., CO ; Doe v. Ack-Jand, Barn. & Cress. That Francisco Santiago was au alien, see 2 Kent, ■GO; -v. Hoag, 3 Hill; nor is he embraced within the saving clause of the 10th section of Geni. Prov. of the Constitution of the Republic.
    H. If Newcomb’s pleas were well founded in law, there was no reason why they should have been stricken out because not filed within the thirty days •ordered by the court. They were filed at the time before the cause was tried, and that was in time. Where security for costs is by statute required to be given within sixty days, it is sufficient if security is given before trial. The •court had no right to order the pleas or answer to be filed in thirty days. The defendants were entitled to answer within the usual delaj-s; that is, up to the •time of trial. The pleas were legal. (I-Iollimau v. Peebles, 1 Tex. R.; Good v. McQueen, 2 Tex. R.; Brown v. Horton, Id.) The pleas of Gambel were legal by the decisions of this court in the same cases.
    III. The demurrer ought to have been sustained, as the plaintiff’s petition did not disclose sufficient cause of action for this: that he did not claim the land by virtue of a title emanating from or recognized by the laws of this 'Government. (Jones v. Menard, I Tex. R.; Statute of Limitations, acts 1841, see. 23 ; Land Laws of 1837, sec. 12; Story’s Conflict of Laws.)
    IV. Tlie refusal of the instructions asked by defendants on the trial of the plea of an alien enemy was manifest error. Persons who make their election to become aliens remain so during the war. (2 Kent, 60.)
    Y. One instruction asked and refused was in these words: “That if they (the .jury) believe from the evidence that Sylvester De Leon abandoned the country before his death, the lands claimed as his headlight became entirely vacant.’’ This instruction was asked on the part of Gambel. On the part of Newcomb, the following instruction to the jury was asked and refused : “ If the jury find ■from tne evidence that Sylvester De Leon abandoned this country after the grant of land to him as a colonist, he lost all interest in such grant, and •the land reverted to the mass of the public domain, and at the time of his death he liad no interest in such land to descend to any one.” Both of which .are assigned as error.
    The error here is so palpably contrary to the doctrine settled in the cases of Holliman v. Peebles, 1 Tex. R., and Brown v. Horton and Good v. McQueen, 2 Tex. R., that comments are unnecessary.
    YI. The title offered by plaintiff purported to be a copy certified by the guardian himself; there is no date to the certificate. If there was an original, 'it was in the possession of the guardian. This point was argued at the last term of this court in the case of White et al v. De Leon. It also comes within the rule laid down by the late attorney general for refusing to record such titles in the land office. It comes now to this court under the sanctity of a seal •or oath. There is no law to punish De Leon for making as many such copies ..as he sees proper. Being a public grant, it surely is not less sacred than a private act. Yet it is clear that the copy or testimonio of a private act, made ■before the Revolution, could not be read in evidence. But the copy is not even in conformity to the laws under which it purports to have been made. It has not the proper seals, nor was it properly legalized. (See acts Coahnila and Texas regulating stamped paper, decree No. 1S2.) Admit this document, and what is there to prevent De Leon or any other officer from filling the country with such documents? Suppose he should fabricate a copy like this: where is the law to punish him for it? Your criminal laws would not reach the case.
    YII. There is manifest error in the instructions asked and given, as follows, to wit: “The plaintiff, by counsel, requests the court to instruct the jury that a purchaser of property at a sheriff’s sale or administrator’s sale by the sheriff or administrator making such sale is absolutely void and fraudulent.” “If the order of the Probate Court was legal and the sale fraudulent, the sale is void.” These charges were calculated to mislead. The purchase by an administrator of property is not absolutely void, but can only be set aside for fraud. A sheriff may purchase property at his sale; executors, who have the seizin of the property, cannot. (Le Baum v. Erskine, 3 Tex. R.)
    VHI. The examination of the pleadings and the record will show that the party was not entitled to a writ of possession, as.he had abandoned his prayer ■for the writ, and it was stricken out on his own motion.
    IX. There was no prayer for annulling the tax sale. The general verdict of the jury did not warrant'the judgment rendered. There was no prayer for a writ of possession.
    X. The experts were improperly refused. Testimony should have been received to prove the deed was fraudulent. (United States v. King, 3 How. R.; Russell v. Mason’s Heirs, 1 Tex. R.)
    XI. One co-defendant could not maintain the suit for all the property in chancery, and the finding as to Sylvester De Leon was conclusive that no oilo •could take under him.
    XII. The motion for a new trial should have prevailed. The jury found •contrary to law, contrary to evidence, and contrary to the judge’s instructions.
    Phillips, for appellee.
    I. The verdict on the plea of alien enemy is, at worst, mere waste paper. It is pot responsive to the issue. There is a marked difference between a question of “alien enemy ” and one of “alienage.” The character of alien enemy may attach in time of war to our own citizens, and operate as an estoppel when they seek to enforce their claims in our courts during the existence of a war between our own Government and the one within whose limits they reside at the commencement of the suit. The disability is altogether temporary, and is, ipso facto, removed on return of peace. Their rights are not impaired by such temporary disability, but their remedies are denied for political reasons. The verdict then is not an answer to the question involved in [22Y| the issue. What was the character of the complainant at tiie commencement of the suit ? It is not responsive to the question. Were the complainants alien enemies-at the commencement of the suit? The verdict is too vague and uncertain to* he regarded. So much of it as refers to Sylvester De Leon must at any rate be considered surplusage. His name is not included in the plea; nor does the plea as to the issue of alien enemy of vminors at the commencement of the suit involve the status of Sylvester De Leon at the time of his death.
    But if the court should regard the verdict- in any other light than a mere nullity, it is then submitted' that it must he good or had as to both parties equally. Let us then examine the verdict as altogether good; and what does it aver? 1st. That Sylvester De Leon by his acts was an alien from the country and a citizen of Mexico. As such he could have held land in Texas prior to his death in 1838. The very finding admits his capability to take title, for the court will notice judicially the fact of our having formed a portion of' Mexico up to 1836. That he did so hold land wo have averred in the bill, and the defendants have not denied it. 2d. That Francisco Santiago De Leon by his acts is a citizen of Texas and entitled to his rights. To what rights is he entitled? The right to sue alone? Ought it not rather to be taken, in connection with the whole verdict, as the opinion of the jury that the child named was the sole eadern persona cum, defunció, and entitled to the whole property? (Acts 1S40, p. 135, see. 14.) It may ho proper here to remark that, whatever their true meaning may have been, tire legal effect cannot extend, 1st, beyond the plea; 2d, beyond the decree rendered on the verdict. That decree simply is that the suit abate as to Martin and Francisco De Leon.
    II. In view of the facts, we maintain—
    1st. That Sylvester De Leon, deceased, was, at the time of his death, a citizen of Texas. He was a citizen under the Constitution of the Republic.. (Gten’l Prov., sec. 10.) He never relinquished his citizenship by election or choice.
    2d. We maintain that Victoria, in Texas, was his domicile from-before the declaration of independence till his death. He left Victoria involuntarily, with the animus reveriendi. (1 Kent Com., 76, 80; Story Conf., secs. 41, 47, 49.)
    3d. That the citizenship of the ancestor determines the citizenship of the minors. (Story Conf., 48.)
    4th. That the domicile of the ancestor is the legal domicile of the minors-until their attain their majority.
    yth. That under the law in force in 1838, on the death of Sylvester De Leon his children named in the hill were eadem persona cum def undo.
    
    6th. That being such they succeed to his rights. The league of land in controversy was theirs by descent cast in 183S. (2 Part., 993; C. C., 936, p. 140; Brown’s Civil Law, p. 182 ; 8 Peterf. Abr., p. 36.)
    7th. As a consequence from the preceding propositions, we maintain that all debts connected with the estate after the death of the ancestor were the debts of the heirs. (1 PoLli., 347; Id., 148.)
    8th. That a debt of the living cannot be collected under an execution against the dead. Such execution is void. (1 Potli., 323; Id., 425, 426.)
    9th. Hence it follows that the tax titles of defendants were void.
    10th. And we hold that avoid instrument cannot be the foundation of a¡ valid claim.
    11th. It follows that the claims presented to Hardy, administrator, by New-comb, Gambel, and Van Norman were manufactured, fraudulent, and void.
    The proceeding for the collection of taxes was not in rem, but in personam. (Acts 1S37, p. 259; Id., 112; Acts 1838, p. 38; Acts 1839, p. 127, see. 4; Acts 1840, p. 9, sec. 40; Acts 1841, sec. 25.) ■
    But by referring to the date of the title in connection with the law under which it issued, the court will see that no taxes could be legally assessed and collected on the land in controversy without a special act declaring the special object. The title is dated in 1S33 and the taxes purport to have been assessed in 1839-’40. By article 32, p. 132, and article 17, p. 14G, oí the colonization laws of Coalmila and Texas, no general taxes eouhl be demanded, without a violation of the contract, until ten years from its date. The principle here asserted is fully sustained by a case reported in 14 Poterf. Abr., p. 716. Escuage could be demanded,
    III. We pass, then, to the administration. The bill charges that the defendants resorted to the Probate Court with a fraudulent intent to defeat the equity of redemption. This allegation is admitted by tiie defendants; the jury have indorsed it.s truth. The statement of facts fully justifies the verdict. The act of administration, then, so far as the acting parties are concerned, and all the results, as to any interest or benefit to them, is void, on the ground of a fraudulent intent on their part to defeat the interest of a third party. (1 Johns. Dig., 531.) Ingram cannot be protected as an innocent purchaser, 1st, as his answer condemns him; 2d, as the verdict condemns him as participator and actor in the frauds for the use and benefit of Hardy; 3d, as the proof fully sustains the verdict.
    IV. In the next place, as to the decree. On examination it will be found that the decree is strictly secundum, allegata et probata. This being tiie fact, the court can give relief under the general prayer. (Seudder v. Young, 25 Maine It., 153.) When a court of equity has jurisdiction of a cause, it will determine all matters in controversy between the parties arising out of the same subject-matter.' The law abhors a multiplicity of suits. The court, when a proper case is presented, will place the parties in statu quo, and for this purpose will annul deeds and conveyances. (Woodman v. Freeman, 25 Maine R., 531; 11 Mass. R., 512; 7 Id., 488; 10 Pet. R„ 161; 1 Pet. R„ 340; 1 Stark. Ev., 213; 8 Pet. R., 140.) Could the court award a writ of possession? Tiie prayer for this writ was stricken out on motion of complainants as contained in the original petition.
    Though this be the fact, it could be awarded, as before stated, wlien a proper case was made out. Here Hardy, the only party in possession, disclaimed. Of course it was correct as to him. Again, it was properly granted as to all the parties. (2 Pet. It.', 595; Acts of 1846, p. 202, sec. 7.)
    V. Having thus attempted, under great embarrassment as to time, to present the true merits of this case to the court, the question is, ought the judgment of the court below to be reversed? I may well be permitted to ask, does justice require it? Have tiie defendants presented in their defense such a case as entitles them to the favor of tiie court? Have tiie complainants failed to establish facts sufficient to justify the verdict and judgment in their favor? The response to one and all of these questions, it is believed, must be in favor of the complainants. For what purpose, then, is a reversal sought? Most manifestly to defeat the purposes of justice. A long and protracted contest lias been bad witli an attempt of converting the Probate Court, which the law lias made ex officio the guardian of the rights of minors, into a judicial engine of fraud and oppression. That attempt lias been defeated by tiie judgment. It is now sought to invoke tiie aid of this court that this contest may be prolonged; and for whose benefit is this asked? For those who stand condemned by their own answers, whose iniquitous frauds are developed in every page of the record. As time rolls on, the proof that has once unraveled the professional and ingenious webs woven under the guidance of an interested party may be lost. They may recruit their strength while starving their intended victims, and thus in the end defeat the purposes of justice.
    VI. But what are the assignments of error relied on ? They are only thirteen in number per stirpes, but subdivided per capita they are too numerous by possibility to notice seriatim. One of the opposite counsel has, however, kindly furnished tue with a list of those that will be particularly relied on in argument. They are as follows :
    No. 3. Tiie ruling of the court on the demurrers.
    
      Ho. 5. The ruling of the court on the question of abandonment.
    No. 6. The ruling of the court admitting the testimonio as evidence.
    No. 7. Instructions of the court on behalf of complainants, as follows : 1st, that a purchase of property at a sheriff's sale or administrator’s sale by the sheriff or administrator making such sale is absolutely fraudulent and void; 2d, if the order of the Probate Court was legal and the sale fraudulent, the sale is void.
    No. 8. The court erred in awarding a writ of possession, as the complainant, as guardian of one heir, could recover only an undivided third part of tire property.
    
    No. 10. That the court erred in refusing experts to be sworn to falsify the deed.
    No. 13. That the court erred in refusing the motion for a new trial.
    In reply to these several assignments, I answer—
    To No. 3 : That the demurrers admitted the facts stated in the bill, and it would be difficult to state a case more appropriate, for relief than the one presented.
    To No. 5: That the proof is that Sylvester De Leon left involuntarily; and as a possession not voluntarily abandoned puts the defendant on his defense, the instruction was properly refused as not warranted by the evidence. (Smith v. Sordlard, 10 Johns. B., 338.) The record shows instruction inapplicable. (2 Tex. B., 305.)
    To No. 0: The testimonio proved itself. (Dali. Dig., Case of Townsend.) But the signatures of the subscribing witnesses and tlie commissioner’s signatures were also proved.
    To No. 7: The instructions complained of were in strict accordance with law. A party cannot act in the double capacity of seller and buyer. The two characters united in the same person are inconsistent, and the rules of law prohibit it. (Story Bq.) Fraud violates “the most solemn transactions.”
    To No. 8: Enough has already been said as to awarding a writ of possession generally. But if the court should regard tlie first verdict as limiting tlie benefits of the suit to Francisco Santiago De Leon alone, then lie must be tlie sole heir and entitled to the whole league of land. As part owner, he would be entitled to an undivided third of each foot, and could not secure his rights if not placed in possession of each and every part of it.
    To No. 10: The testimonio liad already been proved up and admitted as evidence to go before the jury. They might impeach it by witnesses, and urge their objections to the jury. Tlie latter were satisfied with the document, and it is now here for the inspection of tlie court. Hardy and Ingram are estopped from disputing the title. Were not ail estopped by their admissions?
    To No. 13 : I will not detain the court in remarking on this assignment. I have already reviewed the case, and endeavored fairly and fniiy to present tlie true issues and the merits as they appear from the pleadings and the evidence.
   Wheeler, J.

In reference to the several grounds of error relied on for a reversal of the judgment, considered in the order in which the proceedings to which they relate transpired, we are of opinion—

1. That it was within the discretion of the court under the circumstances to refuse to permit the amended pleas of the defendant Newcomb to be filed. He had obtained leave to amend his pleadings within a prescribed period, one year previous to the filing of these pleas. He had, however, declined to exercise the right accorded to him within the time limited by the order of the court and up the very day of trial. His pleas were of a character and came in under circumstances well calculated to induce the belief that he had designedly delayed filing them in order to surprise and delay the plaintiff in the prosecution of his suit. He did not attempt in any way to account for or excuse-his delay, and there was, we think, no error in rejecting his pleas thus offered more than one year after the cause had been at issue, and upon the very eve of the trial.

The pleas of the defendant Gambel, to which exceptions were sustained, presented in substance the same issue which was presented in his fourth amended plea; and although the former were stricken out, their substance was retained in the latter, and the defendant was allowed the full benefit of the grounds of defense presented by them. They asserted that the plaintiffs were alien enemies; a defense of which the defendants were allowed to avail themselves by every means in their power. In respect to the several rulings of the court upon the pleas, it may be observed that in point of fact no right of the defendants was ultimately prejudiced by these rulings; for they appear to have had accorded to them on the final trial the full benefit of all their pleas, and of every defense set up or attempted to be set up by them. The case, indeed, was tried and the jury were instructed upon the very issues presented by these pleas; and it doubtless was regarded as the right of the defendants thus to avail themselves of their various grounds of defense under the plea of “not guilty.” (8 Stat., 1844, 70, sec. 5.) The rulings of the court in question therefore appear to have become and to have been treated at the trial as wholly immaterial. They were at most mere irregularities, in no way affecting ultimately the merits of the controversy or the rights of the parties, and can afford no ground for reversing the judgment.

2. The argument in support of the defendant’s demurrers, founded on the want of any averment that the plaintiff’s title had been recognized by the laws of this Government, is answered by the opinion of the court in the case of McMullen v. Hodge, (ante.) The views urged respecting the effect of a revolution upon the rights of private property are, it is believed, opposed to the opinion of every distinguished jurist of modern times who has treated of that subject. “ It is a settled principle in the law and usage of nations (says Chancellor Kent) that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relation to each other and their rights of property not taken from them by the orders of the conqueror remain undisturbed. The cession or conquest of a territory does not affect the rights of property. Vattel, b. 3, c. 13, sec. 200; The United States v. Perchman, 7 Pet. R., 51; Mitchell v. The United States, 9 Id., 711; Strother v. Lucas, 12 Id., 410, 438. The laws, usages, and municipal regulations in force at the time of the conquest or cession remain in force until changed by the new sovereign. (Calvin’s case., 7 Co., 17; Campbell v. Hall, Cowp. R., 209; 9 Pet. R., 711, 734, 748, 749; Strother v. Lucas, 12 Pet. R., 410.” (1 Kent. Com., 5th edit., 178, n. a.)

We deem it unnecessary to fortify by a further reference to authorities principles of so universal reception, and which seem in themselves so rational and consonant to the spirit of justice and humanity. We are of opinion that it was not necessary for the petition to allege that the grant had been recognized by this Government, and that the demurrers were rightly overruled.

3. The instruction given by the court to the jury on the trial of the issue upon the plea of alien enemy, “that if one of the minor heirs of Sylvester De Leon removed from Mexico to Texas, and had the plaintiff in this suit appointed Ills guardian, it was such a recognition of his rights as a citizen as removed the disability of alien enemy,” if erroneous, was an immaterial error, and one which cannot affect the validity of the judgment.

The evidence touching the status or national character of this plaintiff established that at the (late of the Declaration of Independence, and previous to his birth, his fattier resided with his family in this country; that the father remained at ins residence here until removed by authority of the then Government to the State of Louisiana ; and that the infant plaintiff was born in that State shortly after the removal thither of his parents. That the father, by virtue of his residence here at the date of the Declaration of Independence, became entitled to the privileges of a citizen of the Republic of Texas cannot admit of a question. (Const. Repub., Gen. Prov., sec. 10.) And it is equally certain that he could not lose his citizenship without some voluntary act evincing the intention to renounce it. “ That place is properly the domicile of a person in which his habitation is fixed, without any present intention of removing therefrom.” (Story’s Conf. Laws, sec. 43.) The habitation of Sylvester Do Leon, the father, appears to have been thus fixed in this country at the date of the Declaration of Independence, and it so continued up to the time of his removal under the influence and coercion of a superior and controlling power. His removal and subsequent temporary residence in Louisiana did not effect a change of domicile, for “residence in a place, to produce a change of domicile, must be voluntary. If, therefore, it be by constraint or involuntary, as by banishment, arrest, or imprisonment, the antecedent domicile of the party remains.” (Id., sec. 47.) Again, “a domicile once acquired remains until a new one is acquired.” (Ib., 1 Kent Comm., 76; 2 Kent Comm.. 431, n. a.) “Two things must concur to constitute domicile : first, residence; and secondly, the intention of making it the home of the party. There must be the fact and the intention.” (Story’s Conf. of Laws, sec. 44; 19 Wend., 11.) “A new domicile (says Kent) is not acquired by residence, unless taken up with an intention of abandoning- the former domicile.” (2 Kent Comm., 431, n. a.) In the case of Sylvester De Leon the intention to renounce his domicile in this country and to establish it elsewhere appears to have been wanting. XL; therefore retained his original domicile, although he did not actually reside in this country. For, says Story, “in many cases actual residence is not indispensable to retain a domicile after it is once acquired; hut it is retained, animo solo, by the mere intention not to change it or to adopt another. If, therefore, a person leave his home for temporary purposes, but with an intention to return to it, this change of place is not in law a change of domicile.” (Conf. of Laws, sec. 44.) Whatever may have been the object of the authorities of the then Government in removing Sylvester De Leon and others from their homes in Texas, however humane the motive, It cannot be denied that the effect upon the persons so removed was a temporary banishment from their country and homes. It was such a change of residence as did not effect a change of the national domicile of those persons. Sylvester De Leon does not appear ever to have acquired another domicile elsewhere ; and we have seen that the original domicile remains until a new one shall have been acquired animo et facto. (Id., sec. 44, 47; Story’s Comm. Const., 565; 2 Kent Comm., 230, n.) He does not appear at any time to have manifested an intention to abandon his homo in Texas. On the contrary, he left it involuntarily and with the view of a mere temporary absence, and he persevered until his death in his efforts to regain it. Upon the death of his wife, having placed his infant children with their grandmother in Tamaulipas. lie returned to the place of his former residence in Texas, with the avowed intention of resuming his home, from which he had been expelled; he declared his intention of bringing back his children, and sold property to procure the means necessary to enable him to do so, and he actually entered upon and died in the prosecution of this avowed object. Those events all transpired within about two years from the date of the Declaration of Independence, and there is no evidence of any act of Sylvester De Leon during this time indicative of an intention to abandon his domicile or renounce his citizenship in Texas. He therefore undoubtedly is to be regarded as having retained his domicile and citizenship here until his death. (10 Mass. R., 488 ; 11 La. R., 175; 5 Ves. R., 750, 787 ; 5 Mass. R., 390; 2 Kent Comm., 5th edit., 230, n.)

Such being the status or national character of Sylvester De Leon, what was that of his son Francisco Santiago, the infant plaintiff?

It is stated by Judge Story, in his Conflict of Laws, (sec. 44,) that “ minors are generally deemed incapable, proprio marte, of changing their domicile during their minority, and therefore they retain the domicile of their pareuts; and if the parents change their domicile, that of the infant children follows it; and if the father dies, iris last domicile is that of his infant children.” (Id., sec. 46.) And again, after stating the general rule that “persons who are-born in a country are generally deemed to be citizens and subjects of that country,” the learned commentator adds : “A reasonable qualification of this rule would seem to be that it should not apply to the children of parents who were .in ilimre in the country or who were abiding there for temporary purposes.” (Id., sec. 48.) And although he does not undertake to assert that in the present state of public law such a qualification is universally established, its propriety does not appear to have been questioned; and its adoption in the present case seems to be fully sanctioned by law and demanded by every consideration of .humanity and justice. (2 Kent Comm., 230, n.; 1 Binn. R., 349, 351; 3 Pet. R., 120.)

In this view of the law upon the subject, which seems too rational and well .settled to admit of a question, it is clear that the domicile of the parents drew to it that of their children, as well that of the infant plaintiff born in Louisiana as of his elder brothers who had been removed with their parents from their home in Texas, and hence that he was neither an alien nor an alien enemy.

But if it be denied that the domicile of the infant plaintiff attached to and became that of his parents, then the general rule that persons born in a country are to bo deemed citizens and subjects of that country, must prevail, and that would fix his domicile and citizenship in Louisiana, one of the United States, a Government with which the courts of this country will judicially take notice the Republic of Texas was at peace ; and hence, unless domiciliated of his own volition in the enemy’s country or engaged in commerce there, which is not protended, he could not have been an alien enemy. Since, therefore, there was no evidence which in any aspect of the case could have warranted the jury an finding that the plaintiff was an alien enemy, the instruction upon that point was wholly immaterial, and that an erroneous instruction upon an immaterial or irrelevant point or mere abstract question will not authorize the reversal of a judgment has been repeatedly decided. (Mercer v. Hall, 2 Tex. R., 284; Holman v. Britton, Id., 297; Chandler v. The State, Id., 305.)

4. The instructions asked by the defendants and refused at the same time—that is. on the trial of the issue upon the plea of alien enemy—were, we think, rightly refused. They were inapplicable to the evidence. They assumed the existence of facts not in evidence, and proceeded to raise certain hypotheses upon that assumption. Instructions thus hypothecated upon the assumption of facts not proved were calculated to mislead the jury. In the language of the Supreme Court of the United States in the case of Boardman et al. v. Reed et al., (6 Pet. R., 328,) these instructions “asked the court to presume against the facts of the case, and to found instructions upon the presumption thus raised.” (Id., 344.) And we hold, as was ruled in that ease, that a court is never bound to give instructions in reference to a supposed state of facts when the facts of the case are clear and uncontradicted. (Ib.) Such unquestionably were the facts in evidence in this case in reference to the issue before the jury when the instructions in question were asked.

This dispenses with the necessity of a particular examination of the instructions asked. In order to their entire accuracy as legal propositions, they -evidently required to be understood with certain qualifications. And the court was not bound to give iu charge to the jury propositions which required mod-iilications and qualifications. Unless the proposition as asked is true and pertinent to the case, it is not error in the court to refuse it.

The issue presented to the jury was upon the plea of alien enemy. The question was whether the plaintiffs were persons laboring under the disability incident to that character. And it is perfectly clear that that character and consequent disability did not attach to them.

5. The finding of the jury on the first trial, that Sylvester De Leon and his two children, Martin and Francisco, were aliens, &e., is, we think, a mere nullity. That was not the issue submitted to their trial. The plea asserted that the infant plaintiffs were alien enemies. The precise question for the jury to determine was the truth of this plea, not whether the ancestor of the plaintiffs or themselves were aliens, &c. That it is the duty of the jury to find the very point in issue, to respond to the precise question of fact submitted to their trial by the pleadings, and that their verdict finding a matter which was not in issue can have no legal effect or validity, is perfectly well settled. A verdict must respond to the issue, or no judgment can be rendered on it. (7 Port. K., 218; 2 Dev. R., 537.) “Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which it is tried may give form to a general finding, so as to make it harmonious with the issue, yet if it appear to the court that the finding is different from the issue, or is confined only to a part of the issue, no judgment can be rendered on the verdict.” (4 How. U. S. R., 131; 2 Wheat., 221.)

In respect to their general rights and disabilities as to real property, it has been said that there is no difference between alien friends and alien enemies,. (7 Cr., 603.) and this is, in general, true. But there may be eases in which their rights and disabilities are widely different; as where, by treaty or statute, aliens are enabled to acquire by descent or purchase, and to hold lands as-citizens, and consequently to maintain any action in respect to them which it would be competent for a citizen to maintain. In such a case the same difference would obtain between alien friends and enemies in respect to their real as in respect to their personal property, The alien friend could sue-while the alien enemy could not, unless residing here, maintain an action in our courts during the war. This distinction has been often adverted to and recognized in judicial decisions. In Jackson v. Decker the Supreme Court of New York, adverting to this distinction, said: “The plea of alienage interposed to suspend a recovery during a war between the two Governments is very different from the plea of alienage which the statute meant to guard against and obviate.” (11 Johns. R.. 418, 422.) The statute here referred towns an act of the Legislature of that State making it lawful for certain aliens to acquire the title to and hold lands, (Ib., 2 Wheat. R., 259; 3 Id., 1; 4 Id., 453.) The plea that the plaintiff is an alien, interposed to a real action or one-for the recovery of land, goes, in general, to defeat the right of action altogether, upon the principle of public policy, which denies the right of an alien, in general, to inherit or hold lauds. (Bac. Ab., Uses and Trusts, E., 2; 1 Id., Aliens, D.; Comy. Dig., tit. Alien, C., 5; 7 Cr., 603; 4 U. S. Cond. R., 347, n.; 1 Pet. C. C. R., 40.) But the plea of alien enemy interposes a defense merely temporary in its nature. The right of action of persons laboring under the disability asserted by the plea is merely suspended during the war. Rights of action of whatever nature, recognized by the laws, and which, existed anterior to the war, are not extinguished, but the remedy is merely suspended. (1 Kent Com., 68; 10 Johns. R., 183; 13 Ves. R., 71; 3 Campb. R., 152.)

Moreover, a person may be an alien and a citizen of the enemy’s country, and yet he will not be deemed to labor under the disability of an alien enemy if he shall have come to reside in this country anterior to the bringing of the suit. (2 Kent Com., 63; 10 Johns. R., 70, 72, 73; 6 Binn. R., 241.) Nor, on the other hand, to impress upon a person the character of an alien enemy, is it necessary that he be an alien. A citizen may acquire a hostile; character by his residence, for commercial purposes, in the enemy’s country, or, without such residence, by simply connecting himself with a commercial house in the enemy’s country in time of war, or by continuing during the war such a connection formed in time of peace. (1 Kent Com., 80.) “A belligerent has a right to consider as enemies all persons who reside in a hostile country, or who maintain commercial establishments there, whether they be by birth neutrals, or allies, or fellow-subjects, subject only to this qualification, that they are enemies sub modo ‘only.’” (Ib.).

It would seem, therefore, that there is a difference between the plea of alien-age and of alien enemy, and that the verdict cannot be regarded, even in substance and effect, as a response to the issue submitted to the jury upon the plea of alien enemy, especially when we consider how that plea is regarded and the rules of construction which are applied to it. “The plea is called in the books an odious plea.” (Per Kent, Ch. J., in Clarke v. Morey, 10 J. R., 72.) And the rule is that “it is not to be favored by intendment.” (Id., 71.) It would not well comport with this view of the character of the plea for the court by intendment to convert it from a plea of alien enemy into one of alien-age in order to favor this “Odious plea,” which the law regards with disfavor and will not aid by intendment.

Moreover the pica was not regarded or treated by the parties at the trial as interposing the defense that the plaintiffs were aliens, and hence incapable of maintaining an action in respect to real property. The court was not asked so to consider it; it was not submitted to the jury as interposing that defense, and now to give it that construction would operate a surprise upon the plaintiff. That defense was pleaded by the defendants, but the trial of the issue upon those pleas was reserved until the final trial. The defendants were then allowed to introduce evidence touching the truth of their pleas, and they were negatived by the verdict of the jury. As to Sylvester De Leon at least nothing can be more perfectly clear than that the verdict was a mere nullity. His character was not drawn in question by the plea. It alleged nothing respecting him, and we put out of view as manifestly unauthorized and nugatory the finding in respect to him.

But whether effect be given to the verdict or not respecting the infant plaintiffs, the result must be the same. It was either a legal finding or it was not. If the former, it supported the right of the infant plaintiff, on whose behalf the-suit was subsequently conducted to judgment; for while it asserted that Martin and Francisco were aliens, it expressly found that their brother, Francisco-Santiago, was a citizen. And if these are to be regarded as legally-established facts, the suit was rightly abated as to those parties plaintiff who were’found to be aliens, and subsequently conducted in the sole right of their brother who was found to be a citizen ; for the law is that “ where a person dies leaving issue, who are aliens, the latter are not deemed his heirs in law, for they have no inheritable blood, and the estate descends to the next of kin who have inheritable blood in the same manner as if no such alien issue were in existence.” (4 Wheat. R., 453; 4 Cond. R., 510, and 2 Bl. Com., 249 ; 4 T. R., 300; Com. Dig., “Alien,” C., 1.)

But if, on the contrary, the verdict was not a legal finding, it did not affect the right of either of the plaintiffs, and the judgment rendered upon it was erroneous only in so far as it gave effect to the finding by abating the suit as to two of the plaintiffs. But this was an error of which the defendants cannot complain. Their rights were in no way prejudiced by it. Nor can they be heard to object that the suit was not permitted to be further prosecuted on behalf of those plaintiffs who, they allege, were alien enemies. By their admissions of record the suit was righly abated as to them, and they are estopped by their own averments from now maintaining the contrary. The only persons who could have complained of the judgment rendered upon this verdict are those plaintiffs as to whom the suit was abated, and they are not before the court and have not been heard to complain. Whether the finding of the jury is to be regarded as a legal verdict or not, it determined no issue against the plaintiff Francisco Santiago, and his right to maintain the action cannot have been affected by it.

6. The title of the plaintiff given in evidence upon the final trial was, it is believed, sufficiently proved, and was admissible in evidence. But it is not necessary authoritatively to determine this question or to notice the objections urged to the title of the plaintiff, for the reason that the defendants were not in a condition to controvert the plaintiff’s title. They had acknowledged it, and had asserted its existence and validity in various ways. The defendants Newcomb and Gambol had expressly admitted it in their answers. The defendant Hardy had asserted it in the Probate Court, and made it the subject of his administration; and the defendant Ingram had purchased and claimed title under it. So also had the defendants Newcomb and Gambel. They had given in evidence and claimed under their several tax titles and administrator’s deeds, which were based upon and recited the plaintiff’s title. Having thus Acknowledged and asserted it in their pleadings and evidence, they could not be permitted afterwards to contest its validity. “If a defendant has acknowledged the title of the plaintiff, he cannot afterwards dispute it.” (1 Caines R., 444; 6 J.R., 34; 7 Id., 157; 19 Id., 202; 2 Johns. Cas., 353; Ad. on Ej., 57, n; 4 Cow., 587, 598; 5 Id., 129, 130; 4 Johns. R., 202; Id., 320.) The principle (it has been said) upon which admissions of a party to the record are evidence against him is that, although a man cannot be a witness for himself, yet “every man is the best possible witness against himself.” (1 Caines R., 444, n.) And although a different principle may have been asserted at the trial, it is conceived that the admissions of each one of these defendants is to he taken as against all. There was a privity of interest between some, if not all, and certainly there was a privity in design between all of them. And although, where there are several parties ro the record on the same side, the admissions of one “are not permitted Co affect the others who may happen to be joined with him unless there is some joint interest or privity iu design between them-.” (1 Greenl. Ev., 3d edit., sec. 174.) Yet it is otherwise whore there is a joint interest or a privity in design. (Ib., n.) In the present case, however, all had acknowledged the plaintiff's title, though in different ways.

Again, it is a general rule of law that “a recital of one deed in another binds the parties and those who claim under them by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest of the land and binds parties and privies.” (Per Story, J., 6 Pet. R., 611.) “It is not offered as secondary, hut as primary proof; not as presumptive evidence, hut as evidence operating by way of estoppel, which cannot be averred against, and forms a muniment of title.” (Id., 612; 4 Pet. R., 1, 83; 8 East R., 487; Com. Dig., Estoppel, B. C., Evidence. B., 5.) The several deeds under which the defendants claimed title referred to and recited the fact of the grant to the ancestor of the plaintiff, and they were all based upon his admitted title to the land in question. That title, indeed, constituted the sole basis on which the defendants rested all their pretensions and claims of title, as it had been the sole foundation of the sales for taxes and the proceedings in the Probate Court out of which those claims and pretensions arose. The various acknowledgments and admissions of the defendants to which we have adverted wore, we think, conclusive upon them of the genuineness and validity of the plaintiff’s title.

It therefore is unnecessary to examine t.he sufficiency of the evidence adduced by tiie plaintiff in support of his title or the propriety of the ruling of (lie court in rejecting the evidence offered by the defendants to impeach it. For, as remarked by'Mr. Justice Story iu delivering the opinion of the court upon .an analogous question in Carter v. Jackson, (4 Peters, 83.) “whichever way these, points may decided, our opinion proceeds upon a ground which supersedes them and destroys all their influence upon the case.” (Id., 88.) Their discussion, therefore, may be dispensed with.

7. Respecting the ruling of the. court upon instructions asked at the filial trial on the subject of abandonment, the same view is entertained as that already expressed of the refusal of instructions asked at the trial upon the plea of alien enemy. The instructions asked were not authorized by the evidence. There was no evidence which, under any construction that the court might have given, could have warranted the jury in finding the fact of abandonment.. The court therefore could not be required nor was it authorized to assume the existence of that fact and to base instructions upon the assumption.. To have held the removal of the ancestor of the plaintiff from his country and home without his consent and against his will to amount to evidence of the abandonment by him of the country would have been to sanction an utter perversion of facts and a total disregard of the truth and justice of the case. To constitute the abandonment of one’s country there must be the concurrence of the act and the will. It must necessarily include a change of the national domicile. And we have seen that in this case there was no change of domicile. There could not, therefore, have been an abandoment of the country. In De Bonneval v. De Bonneval (Curt. R., 852) it was held that where A quitted Trance in 1702, and resided in England until 1814, and then returned to Trance, and from that time resided occasionally in both countries, he had not thereby abandoned his original domicile. (2 Kent Com., 130, n.) The ■change of residence was not “ complete and total,” in the language of a learned judge. It was not permanent and final; and without sucli a change, of residence there could be. no change of the national domicile of the parly, and by ■consequence no abandonment of the country.

Without dwelling upon the, peculiar circumstances of this case, it is sufficient that there does not appear to have been anything in them which could have warranted the assumption that this party had abandoned the country, and we are of opinion that the instructions based upon that assumption were rightly refused. The ground on which it is proposed to disfranchise a party and to divest his title, to his property ought to be clearly and conclusively established.

8. The instructions given at the instance of the plaintiff were, we think, correct. A person cannot be both buyer and seller at the same time. He cannot act in this double capacity. “The rule (says Chancellor Kent.) is founded on the danger of imposition and the presumption of the existence of fraud, inaccessible to the eye of the court. This principle, (he adds,) like most others, may be subject to some qualification in its application to particular cases; but as a general rule it appears to be well settled in the English and in our American jurisprudence.” (4 Kent Com., 5th edit., 438, n. 6, c.) It therefore was not error to instruct the jury in effect that a purchase made by A sheriff or an administrator at his own sale is deemed fraudulent in law, and that a fraudulent sale is void. Prima facie the sale so made was void, and there do not appear to have been any circumstances in the case requiring the court to consider the qualifications to which the rule may be subject.

It is not necessary to notice the various instructions given at the instance of the defendants. Whatever opinion maybe entertained of their correct ness, as statements of legal principles, having been given as asked by the defendants, they cannot be asaigned by them as error, nor can any errors they may contain afford ground for the reversal of the judgment.

9. Under the prayer for general relief the plaintiff was entitled to a writ of possession, although he had previously stricken out his special prayer for that writ. This he had done evidently tinder the mistaken belief that he was not entitled to that remedy. But this mistake of the party respecting his legal rights ought not to deprive him of the relief appropriate to his case, or of such a final judgment on the merits as the law and facts authorized. Such a judgment, it was competent for the court to render under the prayer for general relief.

The same may be said of the judgment annulling the tax titles. The general verdict for the plaintiff determined every issue in his favor, and consequently every material averment in the petition was maintained by the verdict. The. legal consequence of those averments was that the titles under which the defendants claimed were void; that the plaintiff was the legal owner of the land and entitled to recover of the defendants the possession, and it was-the duty of the court, under the prayer for general relief, to embody those general results in the judgment. They constituted the judgment of the law upon the ascertained facts of the case.

Note 38. — McMullen v. Hodge, ante, 34.

Note 39. — White v. Sabriego, 23 T., 243; Barrett v. Kelly, 31 T., 470.

Note 40. — Under the law of Mexico, persons domiciliated out of the Republic could acquire no right by inheritance to lands of persons dying in Texas. (Yates v. lams, 10 T., 1G8.

Note 41. — Kilpatrick v. Sisneros, 23 T., 113;’ Word v. McKinney, 25 T., 258.

Note 42. — Wells v. Barnett, 7 T,, 584; Smith v. Johnson, 8 T., 418; Cook v. Garza, 9 T., 358; Hamilton v. Rice, 15 T., 382.

Note 43.“-Johnson v. Davis, 7 T., 173.

10. The fact that the pleas and answers of the defendants were all under oath did not make them evidence or render it necessary to overbear them by a greater amount of evidence than would have been requisite had they not been sworn to. The defendants were not required to answer under oath. They were not interrogated as to any matter of fact stated in their answers. The fact that the subject-matter of 'the amended petition was properly the subject of equitable cognizance did not change the rules of procedure applicable alike to all cases in our practice, or require the observance in this case of rules peculiar to a court of chancery. The affidavits of the 'defendants were voluntary; they did not add to or in any respect change the legal effect of their answers. And it is deemed proper to remark that a practice which should sanction the swearing of parties thus unreservedly and indiscrimately to such a mass of discordant and repugnant matters, as it is impossible not to perceive the pleas and answers in this case do present, is to be seriously deprecated and discountenanced. But if the answers were to have the same effect given to them as answers in chancery, the evidence was, it is conceived, sufficient to overbear them. A case of more flagrant wrong and oppression, or one more fully and clearly made out in evidence has, it is believed, seldom been presented in a court of justice. The evidence was, in our opinion, ample in support of «'.very essential averment in the petition, and fully sustains the verdict of the jury. And upon the whole we are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  