Hammekin vs. Clayton.

sustain this view, he cites the 6th, 9th and 10th sections of the decree of March 12, 1828, found on page 849 of Schmidt's Civil Law of Spain and Mexico.

In the view we take of the case, it is unnecessary to decide this question. Conceding that the law of Mexico was as claimed by defendant, we think it does not follow that the deed to Mrs. Laguerenne was void. There is no evidence in the case that Rejon, the grantor, knew that the deed was in trust for Hammekin. We think that the deed operated to convey the title out of Rejon, and that the most that could be claimed was that the trust was void. Hubbard v. Goodwin, 3 Leigh, 492.

The main question in the case is the second, namely, Was the deed in question by the constitution and laws of the republic of Texas absolutely void, so as to convey no title to Hammekin?

Between the 17th of March, 1836, and the 20th of January, 1840, the laws of Mexico, unless where modified by the constitution and statutes of the republic of Texas, were in force in Texas. Barrett v. Kelly, 31 Tex., 481; Hanrick v. Barton, 16 Wall., 166.

It becomes important, therefore, to determine whether by the Mexican law the deed of Rejon was void and conveyed no title. Upon this point the decided weight of authority is, in our opinion, with the negative of this proposition.

The rule of the common law is well settled that an alien may hold real estate against every one, and even against the government, until office found. 1 Com. Dig., tit. Alien C., 2; Craig v. Leslie, 3 Wheat., 589; Bradstreet v. Supervisors of Oneida County, 13 Wend., 546.

That this is the rule of the civil law of Mexico is shown by the following authorities: Escreche Partidos Hispano Mexicanos, vol. 2, 696; Sala Mexicano, vol. 2, 240; Ramires v. Kent, 2 Cal., 558; The People v. Folsom, 5 id., 378; Merle v. Mathews, 26 id., 478.

In the last cited case the court says: "At common law, conveyance of land to an alien was a cause of forfeiture to the crown of such lands, not only on account of the alien's incapacity to hold them, but likewise on account of his presumption in attempting by an act of his own to acquire real property (2 Black.

Hammekin vs. Clayton.

Com., 274), but notwithstanding, until office found, the title remained in him. So far as we are advised, the consequences that might follow this species of infraction of the law were substantially the same under the Mexican law as at common law, and until denouncement, the alien grantee of land could hold and possess it as his own property."

So in Racouillat v. Sansevain, 32 Cal., 386, the court declares that "the question as to the right of a nonresident alien to hold property at common law, and as we understand it under the civil law, was a matter between the alien and the government, and could not be called in question in a collateral proceeding between individuals. The proceeding at common law to divest an alien of property purchased is by an inquest of office, and until office found, an alien may hold real estate. Under the civil law, there was some analagous proceeding."

In Osterman v. Baldwin, 6 Wall., 121, the facts run almost on all fours with the case at bar. In 1839, prior to the admission of Texas into the union, Baldwin, a citizen of New York and an alien to Texas, bought and paid for some lots in the city of Galveston. It was objected to Baldwin's title, that when his purchase was made, Texas was a foreign country, with a constitution forbidding aliens to hold real estate. The supreme court held that "the defendants could not object on that ground; that until office found, Baldwin was competent to hold land against third persons; no one has any right to complain in a collateral proceeding if the sovereign does not enforce his prerogative."

But it is insisted, that the supreme court of Texas has settled the law otherwise, and that this court should follow the courts of Texas which have established the contrary doctrine as a rule of property in the state.

We are cited to the cases of Holliman v. Peebles, 1 Tex., 673; Yates v. Iams, 10 id., 168; Clay v. Clay, 26 id., 24; La Coste v. Odam, 26 id., 458, and other cases, to show that the ruling of the supreme court of the state has been, that a deed of lands to an alien, under the laws of the republic of Mexico, was absolutely void, and conveyed no title.

We should feel bound to follow these decisions of the su

Hammekin vs. Clayton.

preme court of Texas, had they not been unsettled by later adjudications.

The case of Barrett v. Kelly, 31 Tex., 476, is subsequent in date to all the cases cited to show the invalidity of the deed of Rejon, and is entirely inconsistent with those cases; and, though not in words, yet in effect it overrules them.

The facts in that case were, that Wharton, a citizen of Mexico, on the 13th of April, 1833, executed a conveyance for lands in Texas to J. and W. D. Barrett, who were aliens, and the point was distinctly made in the case, that the alienage of the Barretts gave Kelly, who claimed under a junior grant, the better title. But the court sustained the Barrett title and took the same view of the Mexican law as was taken by the supreme court of California in the cases above cited. The learned judge, who delivered the opinion, says: "From 1833 to 1840, the defendants (the Barretts) were liable to have their land divested from them by due process of law, according to the laws of Mexico. There is no allegation that any court or political authority ever adjudicated upon the alienage of defendants, while they were such, and there can be as little question, that without some process of this kind the rights of the parties to the land were never divested." pp. 481, 482.

These remarks of the court and its action in the case are entirely inconsistent with the doctrine in Clay v. Clay, supra, that the deed to the Barretts was absolutely void, and conveyed no title.

In the case of Settegast v. Schrimpf, 35 Tex., 341, the supreme court of the state appear to cite with approbation the case of Osterman v. Baldwin, 6 Wall., supra.

We are of opinion, therefore, that the later and better view of the supreme court of this state is, that under the Mexican law a deed to an alien was not void, but conveyed an estate subject to be divested upon a proceeding by the government for that purpose. Our conclusion is, therefore, that a new trial should be granted on account of the error of the court in instrucing the jury that the deed from Rejon to Mrs. Laguerenne was void and conveyed no title.

DUVAL, District Judge, concurred.

The State of Texas vs. Gaines.

AUSTIN, JUNE TERM, 1874.

THE STATE OF TEXAS VS. GAINES.

(Before BRADLEY and DUVAL, J. J.)

The fact, that by reason of local prejudice against his race and color, a person of African descent cannot have a fair trial in the state courts, is not a ground under the civil rights act for removing a criminal prosecution against such person, from the state to the federal court.

This was an indictment for bigamy in the district court of La Fayette county. The defendant, a colored person of African descent, applied for a removal of the case into the district court of the United States, under the civil rights act of April 9, 1866 (14 Stat., 27; Rev. Stat., sec. 641), on the ground, that by reason of his race and color, and his republican politics, he could not have as full and equal protection and benefit of the laws of Texas in any of the courts thereof, nor of proceedings thereunder, for the security of person, as is enjoyed by white citizens; and that the public prejudice against him, for the causes aforesaid, was so great, that it would be impossible for him to obtain a fair and impartial trial in any of said courts. The state district court refused the application, and proceeded with the case. The defendant, being found guilty, appealed to the supreme court, which reversed the judgment, and directed the inferior court to remove the case as prayed. It was removed accordingly, and being by the United States district court remitted to this court, the defendant moved to quash the indictment, and the district attorney of the United States, at the same time, moved to dismiss the case from this court for want of jurisdiction. Mr. J. R. Burns, for Gaines.

Mr. A. J. Evans, U. S. Attorney, for the motion to dismiss.

BRADLEY, Circuit Justice. I will consider the last motion first. The first section of the civil rights act (14 Stat. 27) declares, that citizens of every race and color shall have the same right, in every state, to make contracts, sue, give evidence,

The State of Texas vs. Gaines.

inherit, purchase and hold property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishments and none other, any law, statute or custom to the contrary notwithstanding.

The second section makes criminal and imposes penalties on any attempt to deprive any citizen of these rights, or to different punishments on account of his having at any time been held in a condition of slavery.

The third section gives to the district courts of the United States cognizance of all crimes and offenses under the act; and also, concurrently with the circuit courts of the United States, cognizance of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state or locality where they may be, any of the rights secured to them by the first section; and if any suit or prosecution, civil or criminal, has been commenced in any state court against any such person for any cause whatsoever, such defendant shall have the right to remove such cause for trial to the proper district or circuit court, in the manner prescribed by the "Act relating to habeas corpus," etc., approved March 3, 1863, and its amendments.

The act of March 3, 1863 (12 Stat., 755), to which reference is made, authorizes the removal to the courts of the United States of suits and prosecutions commenced in a state court, against officers or others acting under authority of the United States, and, to effect such a removal, authorizes the party sued "to file a petition, stating the facts, and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending," etc. Thus, the statement on oath by the party himself is all the verification of the facts which the law required for effecting the removal.

The question is, whether local prejudice against a colored person, by reason of his race and color, alleged to be so great that he cannot have a fair trial in the state courts, is good ground, under the civil rights act, for removing a criminal action against him from the state court into the district court of the United States. Is it a cause for removal within the act?