Russell's heirs v. Randolph (11 Tex. 460, 1854)

Lipscomb, J.

Edward Russell, the ancestor of the plaintiffs in error, came to Texas some time in 1834, and the 21st day of August, 1835, obtained a grant for one league of land in the present county of Montgomery; and shortly thereafter left for the State of Maine, avowedly for the purpose of bringing out his family to settle upon the land conceded to him ; and shortly after reaching his family in the State of Maine, where they had remained whilst he was in Texas, he died. In 1841 or ’42, Mr. Horton, with his family, his wife being a daughter of Edward Russell, cultivated and made a crop on the land; and they have resided ever since in the State of Texas.

In 1849, the defendant in error, H. Randolph, as assignee of Hugh Hampton, located a valid certificate, issued to the said Hampton, on the said land so granted to Russell; and on the Surveyor refusing to survey the land for him, on the ground that the land, pointed out and designated by him, was covered by Russell’s grant, brought this suit to try the right of the said heirs, alleging that it was a part of the public domain of the State of Texas, and subject to be located on by him in virtue of his certificate. The ground upon which the grant is attacked, is, that it was obtained by the fraudulent representation of the grantee, in representing himself as having came to the country with his family, when in truth he was only a transient person and had not brought his family with him, and that his domicil was in the State of Maine. If the grant was so fraudulently obtained, and without authority of law, it was void ab initio, and never passed any title to the grantee, nor separated the land, embraced in it, from the public dornain; and it remained subject to be located upon by any valid certificate. If, however, it was valid when it was issued, it could only be reannexed to the public domain, by forfeiture or by an abandonment of the country. (See Holliman v. Peebles, 1 Tex. R., and Hancock v. McKinney, 7 Tex. R. 384.)

We will first inquire whether, from the facts, the grantee ever acquired a domicil before or at the date of the issuance of the grant to him. This is a question on which there has been a great deal said, both by foreign and our own jurists. They have, however, agreed .upon rules by which the question can be settled. The native, or the domicil of a man’s birth, is presumed to continue, until he has selected another; but it is admitted that he can choose another domicil, and that he is not tied down to that of his birth. The evidence of such change of his domicil, or what will amount to such change, is not well defined. No precise time of residence at his new selection, has been prescribed as necessary to constitute it as his domicil. If he has selected his new home, with the intent of remaining, it would seem, on authority, to be sufficient, if he is actually at his new home. The intention, without having gone there, or the going there without the intention of making it his residence, will not be sufficient. (See 7th Proposition of Section 44, Story Conflict of Laws ; 14 Proposition of Section 47 same author.) The facts are shown to be that the grantee remained in this country from some time in 1834 until August or September of the year following, and must have been here seven or eight months at least, before the title was extended to him. His declarations and acts all conduced to prove that his determination was fixed and final as to his residence. If he had acquired a residence here, at the time of receiving bis grant, as we believe, from the evidence he had; and returned to his original domicil-, not with the view of remaining, but on business, such return would not forfeit the residence he had acquired here. If, however, when he left Texas for his native domicil, it was with the intent to remain there, he would forfeit his domicil here and with it the land acquired would by abandonment of the country, revert to the public domain. There is no doubt, from the evidence, that it was the continued intention of the grantee, to return to Texas, in as short a time as he could prepare to do so, and that he would have returned, without any unnecessary delay, if his design had not been prevented by his early death, while preparing to come hack. By the Constitution of the Republic of Texas, Section 10, it is provided: “ All persons, Africans, the descendants of Africans and Indians excepted, who were “ residing in Texas on the day of the Declaration of the In