Jones v. McMasters. forfeited for non-performance of conditions. That ordinarily a law of the legislature, and judicial action under it, would be necessary to avoid such a grant. Yet that claimant might act so as to supersede the necessity of such a judicial determination; and if conduct of plaintiff amounted to an admission of the forfeiture, she could not afterwards set up the right, especially against a person who had, in the meantime, acquired a grant from the State; and that it was a question for the jury to determine, whether the conduct of the plaintiff amounted to an admission of forfeiture. The court gave the instruction, with the addition, that it was a question as to the actual intention of the plaintiff; and the jury should be satisfied, considering the infancy and all other circumstances, that such was in fact her intention, or they should find for the plaintiff. The jury found a verdict for the plaintiff. As the practice in the court below permits pleas of whatever nature or description to be put in as a defense to the suit [*20] at * the same time, and without regard to the order of pleas, as known to the system of the common law, it will be necessary in the first place to examine the question raised on the demurrer to the plea to the jurisdiction. It is insisted that the plaintiff is a citizen of the State of Texas, according to the facts as stated in the plea and admitted by the demurrer; and if so, as she is not a citizen and resident of a different State, but a resident of Texas, the suit cannot be maintained within the 11th section of the judiciary act. We think the objection not well founded. The plaintiff was born under the dominion of the Mexican republic, and has lived under it ever since her birth, and beyond all question, therefore, is a citizen of that government, owing it allegiance, which has never been interrupted or changed. There has been no act of hers, or of any one competent to represent her, or to determine her election, indicating an intention to throw off this allegiance, and to attach herself to the new sovereignty of Texas. Having been born and having always lived under the old government, the burden rested upon the defendants, who claimed that she was a citizen of the new one, to establish the fact of the change of her allegiance. (2 Cranch, 280; 4 ib. 209; 1 Dallas, 53; 20 Johns. R. 313; 3 Peters R. 99, 122, 123; 2 Kent C. 40, 41.) The facts set up in the plea prove the contrary. According to these, the plaintiff was nineteen years old when this suit was commenced, and between twenty-two and twenty-three years when the plea was put in to the jurisdiction. If she was competent to make an election while a minor, but after she had arrived at mature Jones v. McMasters. years, as to the government to which she would owe allegiance, the presumption, upon the facts, is, that she has made it in favor of the one under which she has lived since her birth. If she was incompetent to make it during her minority, then the allegiance due at her birth continued, and existed at the time of the commencement of the suit. We do not enter upon the question of the domicile of a minor discussed on the argument, nor express any opinion upon it, as the question here is one of national character, and does not stand upon the mere doctrines of municipal law, but upon the more general principles of the law of nations. (3 Peters, 242; 2 J. Cas. 29.) Assuming that the plaintiff is an alien, and not a citizen of Texas, the next question is, whether or not she is under any disability that would prevent her from the assertion of her title to the premises in question; in other words, whether her absence and alienage worked a forfeiture of the estate. The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired. Kelly v. Hamson, * (2 J. Cases, 29; 7 Pet. 87.) And, consequently, [ 21 ] the plaintiff's right still exists in full effect, unless the new sovereignty created, within which the lands are situate, have taken some step to abrogate it. The title remains after the revolution, and erection of the new government, the same as before. The 10th section of the constitution of the republic of Texas, adopted the 17th March, 1836, provided that "no alien shall hold land in Texas, except by title emanating directly from the government of this republic." * By the 20th section of the 7th article of the present constitution of the State, it is provided "that the rights of property and of action which have been acquired under the constitution and laws of the republic of Texas shall not be divested; nor shall any rights or actions which have been divested, barred, or declared null and void, by the constitution and laws of the republic of Texas, be reinvested or reinstated by this constitution; but the same shall remain precisely in the situation which they were before the adoption of this constitution." And by the 4th section of the 13th article, it is provided that all fines, penalties, forfeitures, and escheats, which have accrued to the republic of Texas under the constitution and laws, shall accrue to the State of Texas; and the legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated." It is understood that the legislature of Texas has not yet passed any law providing for the steps to be taken to give effect to escheats Jones v. McMasters. for alienage, or otherwise; at least, no such law has been referred to, or relied on, in the argument; and the course of decision in the courts of Texas appears to be, that, until some act of the legislature is passed on the subject, effect cannot be given to the plea of alienage, or, at least, that some proceeding must be had, on the part of the government, divesting the estate for this cause, before effect can be given to it. 15 Texas R. 495. The defense of alienage, therefore, was properly overruled by the court below. The counsel for the defendants insist that the estate of the plaintiff became forfeited under the Mexican laws, by her removal from the State of Coahuila and Texas to Matamoras, while under the Mexican government, and a permanent residence taken up there. But the removal that worked a forfeiture under Mexican colonization laws, and divestiture of the title without judicial inquiry, was a removal out of the republic of Mexico, and settlement in a foreign country. The principle has no application in this case. 18 How. 235, (McKinney v. Saviego.) [ * 22 ] *The remaining questions in the case relate to those arising upon the survey and location of the premises in question. This survey and location were made by the government surveyor, under the direction of the alcalde and land commissioner of the municipality, who was deputed by the governor to cause the land to be surveyed, and to convey the title in due form. The counsel for the defendants claimed the right to inquire into the regularity of this survey and location, and also into the bona fides of the transaction. It must be remembered that this is a suit at law to recover the possession of the land in dispute; and that, although it may be the course of practice in the courts of the State of Texas, in a suit of this description, to blend in the proceeding the principles of law and equity, in the federal courts sitting in the State, the two systems must be kept distinct and separate. This principle is fundamental in these courts, and cannot be departed from. The court, therefore, in a suit at law, should exclude the hearing and determination of all questions that belong appropriately and exclusively to the jurisdiction of a court of equity. In a case calling for the interposition of this court, and turning upon equitable considerations, relief should be sought by bill in equity. Many of the cases at law coming up from the district court of this State are greatly complicated and embarrassed, from the want of the observance of this distinction in the proceedings before it. In respect to the survey and location in the case before us, we perceive no ground that Bacon v. Howard. could warrant the court in going behind them in a suit at law. They were made by the government that granted the title, and there is no ground, or even pretense, for saying that they were made without authority; and hence, altogether void. If voidable, for irregularity or other cause, the question was not one for a court of law in an action to recover possession, but for a court of equity to reform any error or mistake. (9 Peters, 632; 13 ib. 368-'9; 3 Wh. 212, 221; 7 How. 844.) We think a satisfactory answer might be given to the several objections taken to the survey and location; but we prefer to place it upon the ground above stated. The judgment of the court below affirmed. JOHN BACON, ALEXANDER SYMINGTON, and THOMAS ROBINS, Appel- 20h lants, v. VOLNEY E. HOWARD. 20 H. 22. LAWS OF THE REPUBLIC OF TEXAS BARRING ACTIONS ON DEBTS VALID AFTER HER AD MISSION INTO THE UNION-STATUTE OF LIMITATION AFTER HER ADMISSION. 1. Where the laws of the republic of Texas had barred a debt on a judgment while it was an independent State, the debt was not revived on her coming into the federal Union. 2. A law of the State which gave a right of action on a debt so barred, after the State came into the Union, accompanied by statute of limitation requiring the suit to be brought within four months, is valid as to the limitation, though the plaintiff lived too far to have availed himself of the right to sue. THIS was an appeal from the district court for the district of Texas, and the case is stated in the opinion. Mr. Hale, for appellants: Mr. Hughes, for appellee. *Mr. Justice GRIER delivered the opinion of the court. [ 23 ] The complainants are assignees of a judgment obtained by the Planters' Bank against the defendant, in the State of Mississippi. The charter of the bank has been forfeited. The complainants, as equitable owners of the judgment, demand payment by their bill. The judgment claimed by them is dated on the 19th of October, 1840, and their bill was filed on the 22d of October, 1850. Anticipating the defense of the statutes of limitation of Texas, the bill avers "that, at the time of passage of the act of congress of the republic of Texas, approved June 28th, 1845, enti 22 L-ed 811 130 696 Bacon v. Howard. tled 'An act to authenticate foreign judgments, and to limit suits thereon,' the defendants resided in San Antonio, Texas, and the complainants in Philadelphia-more than 2,000 miles apart; and that complainants could not, according to the regular course of the mails, and with any reasonable diligence, have learned the passage of said act, and caused suit to be instituted upon the judgment within sixty days after its passage." The respondent has demurred to the bill, and assigns as a cause of deinurrer, among other reasons, "That the complainants, by their own showing, are barred by the first section of an act entitled 'An act of limitations,' approved February 4, 1841, and also by the fourth section of the act referred to in the bill." If this allegation be found correct, it will be unnecessary to notice the others. On the 10th of January, 1841, the legislature of the republic of Texas enacted, "That no suit, proceeding, judgment, or decree, shall be brought, prosecuted, or sustained, in any court or judicial magistracy of this republic, on any judgment or decree of any court or tribunal of any foreign nation, State, or territory," &c. "But * this provision is in no degree to affect the validity or [24] obligation of contracts, engagements, or pecuniary liabilities, originating abroad, or the original evidence, testimony, or proof, to establish the same," &c. On the 5th of February, 1841, "An act of limitations" was passed, the first section of which, after prescribing shorter limitations for other causes of action, declares that "all actions of debt grounded on any contract in writing shall be commenced and sued within four years next after the cause of such action, and not after." Without criticising the peculiar expressions used in these acts, it is obvious that their policy and object was to bar the prosecution of any claim for money or property at farthest in four years from the time when the right of action first accrued. Now, the original cause of action, on which the judgment in question was obtained, must have existed or accrued at the latest on the 19th of October, 1840, when judgment was entered thereon in the court of Mississippi. Counting from that date, the action would have been barred on the 19th of October, 1844. But assuming that the time did not commence to run till the 17th of March, 1841, when the act of 5th February, 1841, is said to have taken effect, the action was barred on the 17th of March, 1845. On the 23d of June, 1845, the congress of the republic gave their consent to the annexation of Texas to the United States, and |