SUPREME COURT OF THE UNITED STATES.

The legislature, on March 20, 1848, passed a statute, entitled "An Act to Provide for Vesting in the State Escheated Property. General Laws of Texas of 1847-48, chap. 145, p. 210 (Pasch. Dig. arts. 3657-3674).

1845 it was provided, in art. 4, § 10, that the | terested in the estate" to appear and show OCT. TERM district court should have original jurisdiction cause why it should not be vested in the state. "of all suits in behalf of the state to recover The order of notice by publication to all perpenalties, forfeitures, and escheats;" and in sons interested in the estate is essential to the art. 13, § 4, as follows: "All fines, penalties, jurisdiction of the court; and, if no such noforfeitures, and escheats which have accrued tice is shown by the record, a judgment for to the Republic of Texas under the Constitu- the state will be reversed on writ of error, even tion and laws shall accrue to the state of if sued out by parties who were named in the Texas; and the legislature shall by law provide petition and appeared and pleaded in the cause. a method for determining what lands may State v. Teulon, 41 Tex. 249; Wiederanders V. have been forfeited or escheated." 2 Charters State, 64 Tex. 133; Hanna v. & Constitutions, 1773, 1781. By the settled course of decision in the su664, 667. State, 84 Tex. preme court of the state, no proceedings for such petition as tenants or persons in actual pos*By § 5 (3661) "all persons named in [266 escheat can be had, except under and accord-session or claimants of the estate" may appear ing to an act of the legislature. Jones v. Me- and plead and traverse the facts stated in the Masters, 61 U. S. 20 How. 8, 21 [15: 805, 810]; petition or the title of the state; "and any Hancock v. McKinney, 7 Tex. 384, 456; Wied other person claiming an interest in such es eranders v. State, 64 Tex. 133. plead, by motion for that purpose, in open tate may appear and be made a defendant and court." By S6 (3662), if no person, after noment shall be rendered by default for the state. tice as aforesaid, shall appear and plead, judgthe title set up by the state, or traverse any By §7 (3663), "if any person appear and deny material fact in the petition, issue shall be made up and tried as other issues of fact." By § 8 (3664). "if after the issue and trial it appears, from the facts found or admitted, that the state hath good title to the estate, real or personal, in the petition mentioned, or any part thereof, judgment shall be rendered that the state shall be seised or possessed thereof, and, at the discretion of the court, recover costs against the defendants.' "if it appear that the state hath no title in such estate, the defendant shall recover his By § 9 (3665), costs, to be taxed and certified by the clerk; and the comptroller of public accounts shall, on such certificate being filed in his office, isstate, which shall be paid as other demands sue a warrant therefor on the treasury of the on the treasury." And by $ 10 (3666). "when any judgment shall be rendered that the state be seised or possessed of any estate, such and shall vest the title in the state." judgment shall contain a description thereof,

By § 1 of that statute (Pasch. Dig. art. 3657) "if any person die seised of any real or pos sessed of any personal, estate, without any devise thereof, and having no heirs, or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest to the state." The purpose and import of the 2d clause of this section, concerning an owner absent for seven years and not known to exist, have been declared by the su265]preme court of the*state to be"that proof of absence of one who is not known to exist for the length of time mentioned is presumptive evidence of his death. It is not, therefore, a ground for escheat of itself, but evidence of one of the elements of title by escheat." Hughes v. State, 41 Tex. 10, 20. This is only important by way of explaining the scope of the statute, since, in the present case, both parties assume and rely upon the death of the former owner.

By § 2 (3658) when no letters testamentary or of administration appear to have been granted upon the estate of a person who has died without heirs, it is made the duty of the district attorney to file in the district court of the county "where such succession is required to be opened," which is as much as to say where his estate would be administered, a petition setting forth "a description of the es tate, the name of the person last lawfully seised or possessed of the same, the names of the tenants or persons in actual possession, if any, and the names of the persons claiming the estate, if any such are known to claim, and the facts and circumstances in consequence of which such estate is claimed to have escheated; praying for a writ of possession for the same, in behalf of the state."

Section 8 (3659) requires scire facias to be issued to all persons named in the petition as in possession of or claiming the estate, requiring them to appear and show cause why it should not be vested in the state. (3660) further requires an order of notice to be Section 4 published four weeks in a newspaper printed within the state, stating briefly the contents of the petition, and requiring "all persons in696

the sheriff of the proper county, commanding By 11 (3667) "a writ shall be issued to him to seize such estate, vested in the state;" and "he shall dispose thereof at public auction, in the manner provided by law for the sale of property under execution." By S 12 (3668) a copy of the record and account of sale, exemplified under the seal of the court, is required to be deposited in the office of the comptroller of public accounts, and another copy recorded in the office of the recorder of the county; "and such record shall preclude all parties and privies thereto, their heirs and assigns."

peared to any proceeding, and the dis- [267
By 13 (3669) "any party who shall have ap-
the right to prosecute an appeal or writ of er-
trict attorney on behalf of the state, shall have
ror upon such judgment."

troller shall keep just accounts of all moneys
Section 14 (3670) requires that "the comp-
in the state under the provisions of this act."
paid into the treasury and of all lands vested

Sections 15 (3671) and 16 (3672) provide that
testator or intestate, and claim any money paid
'if any person appear after the death of the

into the treasury under this act," as heir, dev-after a hearing of all who appear and plead, isee, or legatee, he may, by petition in the dis- judgment is entered, describing the land, and trict court for the county in which the estate declaring that it has escheated to the state,was sold, and after notice to the district attor- the judgment is conclusive evidence of the ney, and proof that the petitioner is an heir, state's title in the land, not only against any devisee, legatee, or legal representative, obtain tenants or claimants having had actual notice an order directing the comptroller to issue his by scire facias, or having appeared and pleaded, warrant on the treasurer for payment thereof. but also against all other persons interested in Section 17 (3673) simply relates to the duty the estate and having had constructive notice of the district attorney to obtain from the clerk by publication. of any probate court moneys or title papers to land, not claimed by any heir, devisee, or legal representative of a deceased person.

By 18 (3674) "all property escheated under the provisions of this act shall remain subject to the disposition of the state, as may hereafter be prescribed by law."

Tex. Rev. Stat. 1879, §§ 1770-1785, re-enact substantially and almost verbally the provisions of the statute of 1848, except by requiring the publication of the order of notice for eight weeks, instead of four weeks as in § 4, by omitting SS 12 and 17, and by inserting the words the proceeds of" at the beginning of 18.

That such is the effect of the judgment in favor of the state is clearly shown by the deIcision in Wiederanders v. State, above cited, in which the reasons for holding that, if the notice required by the statute to all persons interested in the estate *had not been pub- [269 lished, the court had no jurisdiction to enter judgment, even against persons who actually appeared and contested the claim of the state, were stated by the court as follows:

"The purpose for which proceedings of this character are instituted is to have a judicial declaration in the form of a solemn judgment made by a court having jurisdiction of the subject-matter, and of the persons in interest in so far as publication can give it, that the facts exist which, under the law, cast title upon the state to property with which, at some former time (in case of lands), it had clothed a person with title. The law now in force must be deemed to be a law providing a method for giving effect to escheats. Rev. Stat. 1770-1788. We are of the opinion that the publication of notice, required by the statute, is made necessary to the exercise of the general jurisdiction conferred, and that without it the district court had no jurisdiction to try the case. The object of such a proceeding is not simply to have a decree declaring the escheat, and vesting the title in the

These proceedings for the escheat of the estate of a deceased person for want of heirs or devisees, like ordinary proceedings for the administration of his estate, presuppose that he is dead; if he is still alive the court is without jurisdiction, and its proceedings are null and void, even in a collateral proceeding. Griffith v. Frazier, 12 U. S. 8 Cranch, 9, 23 [3: 471 475]: Scott v. McNeal, 154 U. S. 34 [38: 896]; Hall v. Claiborne, 27 Tex. 217; Withers v. Patterson, 27 Tex. 491, 497, 86 Am. Dec. 643; Martin v. Robinson, 67 Tex. 368, 375; Caplen v. Compton, 5 Tex. Civ. App. 410. And 268] if the death of the former owner, intestate and without heirs, is not alleged in the petition, or is not proved at the trial, a judg-state; but by and through process, to be issued ment for the state is erroneous and reversible by appeal or writ of error. Hughes v. State, 41 Tex. 10; Wiederanders v. State, 64 Tex. 133; Hanna v. State, 84 Tex. 664.

But the whole object in proceedings for escheat, as in proceedings of administration, is to ascertain who are entitled to the estate of a deceased person; in proceedings of adminis tration, to distribute the assets, after payment of debts, among those who come forward and prove themselves to be next of kin; in proceedings for escheat, to ascertain and determine, once for all, so far as concerns the title in the land itself, whether the former owner left no heirs or devisees, that being the single question on which depends the issue whether or not the land has escheated to the state.

under the judgment, to devest, not only the title of persons entitled to take the property of the deceased as his heirs, if perchance any such there be, but also by a sale to devest the title of the state, and to start and confer upon the purchaser a new title deraigned directly from the sovereignty of the soil. Rev. Stat. 17771780.

"The proceeding, while not strictly a proceeding in rem, has many of its characteristics; yet the statute does not direct a seizure of the thing, which, in some cases, has been held to support a judgment strictly in rem. It applies to personalty, as well as realty. The mere institution of the proceeding creates no presumption that there is no one capable of taking the estate under the rules regulating the descent Consequently, when (as is admitted in the of estates of deceased persons-the presumppresent case) the former owner was dead; and tion is to the contrary; and the effect of the in the proceedings for escheat (as shown by the judgment, if rendered after all persons interrecord on which the defendants rely) the peti-ested in the estate are notified of the pendency tion describes the land, gives the name of the former owner, and alleges that he died intestate and without heirs, that no letters of administration upon his estate had been granted, that there is no tenant or person in actual or -constructive possession of the land, nor any person known to the petitioner claiming an estate therein, and that the land has escheated to the state of Texas; and an order of notice to all persons interested in the estate has been published, as required by the statute; and,

and purpose of the proceeding, in the only manner in which they can be, if unknown, is to destroy that presumption and to make the title of the state clear. *From the time the[270 property is sold under a valid decree, the claim of the person who might have taken it as beir, devisee, or legatee is against the proceeds of the property, which must be paid into the state treasury (Rev. Stat. 1780-1785), and to recover even that he is driven to a suit. It certainly is not, the intention that the purchaser

of escheated lands shall be subjected to the peril of losing them after they have been regularly escheated and sold, if an heir, devisee, or legatee shall subsequently make claim; nor that personalty which, from day to day, changes hands, shall be subject to the claim of such persons, however valid such claim may have been if asserted in proper time and place. Yet such results would follow if the jurisdiction of the court is not so brought into exercise, by a substantial compliance with the requisites of the statute as to clothe it with power, by its judgment, to conclusively settle the title to the property as against all persons." 64 Tex. 135-138.

the jurisdiction of the district court over escheats, and repeating in art. 4. § 20, the provision of art. 5, § 23, of the Constitution of 1866, establishing the office of comptroller of public accounts, to be elected by the quali fied voters of the state for the term of four years, also defined the comptroller's duties as follows: "He shall superintend the fiscal affairs of the state; give instructions to the assessors and collectors of the taxes; settie with them for taxes; take charge of all escheated property; keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the state; publish annually a list of delinquent assessors and collectors, and demand of them an annual list of all taxpayers in their respective counties, to be filed in his office; keep all the accounts of the state; audit all the claims against the state; draw warrants upon the treasurer in favor of the public *creditors; and perform such [272 other duties as may be prescribed by law." 2 Charters & Constitutions, 1794, 1809, 1811.

The like opinion was expressed by Chief Justice Shaw upon the effect of proceedings under a similar statute of Massachusetts, in a case in which it was held that a conveyance of real estate of a citizen dying intestate and without heirs could not be made by the commonwealth until the rendition of judgment in its favor upon an inquest of office. The Chief Justice said: "Where a subject dies intestate, as the estate descends to collateral kindred indefinitely, the presumption of law is that he had heirs, and this presumption will be good against the commonwealth until they institute the regular proceedings by inquest of office, by which the fact whether the intestate did or did not die without heirs can be ascertained, and if this fact is established in favor of the commonwealth, it rebuts the contrary presumption, and the commonwealth, by force of the judgment, and of the statute before cited, becomes seised in law and in fact. In such cases, therefore, the court are of opinion that an inquest of office is necessary, and that the commonwealth cannot be deemed to be seised without such inquest. Jackson v. Adams, 7 Wend. 367; Doe, Hayne, v. Redfern, 12 East, 96. So far as this depends upon general principles, it seems to be a rule highly reasonable in 271] *itself, and tends greatly to the security and regularity of titles. By the mode of taking inquests, prescribed by the law of this com monwealth (Stat. 1791, chap. 13, § 2), general notice is to be given of the claim of the commonwealth, any person is admitted to traverse it, a trial by jury is to be had, and costs are given to the prevailing party. These are highly reasonable and equitable provisions, and it is manifestly for the quiet of the commonwealth and the security of the citizen, that they should be pursued, before the common wealth shall be permitted to take into its own custody and dispose of estates, upon a claim which, if not doubtful, is at least not appar-cretion of the legislature. ent." Wilbur v. Tobey, 16 Pick. 177, 180.

This definition of the duties of the comp troller in the Constitution of 1869 nearly follows the words of the statutes existing at the time of its adoption. Pasch. Dig. arts. 5414, 5424, 5426, 3670, 5194, 5416, 5418, 5420. The principal difference is in substituting for the words of § 14 of the act of 1848, requiring the comptroller to "keep just accounts of all moneys paid into the treasury, and of all lands vested in the state, under the provisions of this act," the words, "take charge of all escheated property; keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the state."

The Constitution of Texas of 1866, art. 4, 86, contained a provision similar to that of the Constitution of 1845, as to the jurisdiction of the district court over escheats; and contained no other provision on the subject of escheats. 2 Charters & Constitutions, 1789. That Constitution, as was admitted by the plaintiffs, did not take away the power of the legislature over the subject, or affect the statute of 1848 or proceedings under it.

But it was strenuously contended that this statute was repealed by the Constitution of 1869, which, while embodying, in art. 5, § 7, the provision of the former Constitutions as to

As the Constitution of 1869 repeats, in somany words, the provision of former Constitutions by which the district court is vested with original jurisdiction of ail causes in be half of the state to recover escheats, and as the statute of 1848 made it the duty of the comptroller to keep accounts, not only of all moneys paid into the treasury, but also of all lands vested in the state, under its provisions, it is difficult to see how the insertion of the general words "take charge of all escheated property," in the definition of the comptroller's duties in the Constitution of 1869, either increased his powers, or diminished those of the district court, in relation to escheats.

The whole object of inserting in the Consti tution a definition of the principal duties of the comptroller would seem to have been to fix by the fundamental law a matter which would otherwise have been subject to the dis

The only doubt thrown upon this arises out of the opinion delivered in Hughes v. State, above cited, in which Mr. Justice Moore said: "Whether this statute had not been repealed by the provision in the Constitution of 1869. which we have cited, may, we think, admit of serious question; but as it is not necessary to the determination of the present case, we are not called upon at present to determine it. We think, however, that it is quite evident this section of the Constitution is in conflict with, and therefore revokes, the authority conferred *by the statute of 1848 upon the court [273 to order the sale of escheated land, if such, indeed, can be held to be the proper construction

of this statute in view of the conflicting pro- | be considered as stricken out, and the former visions of its different sections." 41 Tex. 18,19. provisions stand good. Field v. Clark, 143 U. But the weight of that suggestion is much S. 649 [36: 294]; Zwernemann v. Von Rosenlessened, if not wholly counterbalanced, by berg, 76 Tex. 522. And the judgment set up several considerations. The decision in that in the answer in this case, so far as it detercase was put upon the distinct ground that the mined that the title of the land had vested by petition and the proof were both insufficient. escheat in the state, was valid, even if the orIn another case, decided at the same term, in der for a sale of the land was not. Ludlow v. which the opinion was delivered by the same Ramsey, 78 U. S. 11 Wall. 581 [20: 216]. judge, as well as in an earlier case of a writ of It follows that, if the sale and conveyance error to review the very judgment now by the sheriff to the defendants were invalid pleaded, and in at least two later cases, above and vested no title in them, the previous judg cited, in each of which this proposition, if ment, ascertaining and declaring the escheat, sound, would have been decisive, it was not vested a good title in the state of Texas even mentioned. State v. Teulon, 41 Tex. 249; against all persons claiming as heirs or devisees Brown v. State, 36 Tex. 282; Wiederanders v. of the former owner; and that judgment, alState, 64 Tex. 133; Hanna v. State, 84 Tex. though it does not prove the title to be in the 664. And after the Constitution of 1869 had defendants, proves it to be out of the plainbeen in force for ten years, the legislature, in tiffs, and affords a complete defense to this revising and codifying the statutes of the state, action. Love v. Simms, 22 U. S. 9 Wheat. re-enacted all the material provisions of the 515, 524 [6: 149, 151]; Christy v. Scott, 55 U. act of 1848, both as to obtaining a judgment S. 14 How. 282, 292 [14: 422, 426]; Doswell v. declaring the land to have escheated, and as De La Lanzo, 61 U. S. 20 How. 29, 33 [15: to a subsequent sale of the land by the sheriff, 824, 826]. and clearly manifested its understanding and intention that the provisions for such a sale did and should remain in force, by prefixing the words "the proceeds of" to the last section, which had directed "all property escheated in accordance with the provisions of" the act to "remain subject to the disposition of the state, as may hereafter be prescribed by law." Rev. Stat. of 1879, § 1785.

The plaintiffs somewhat relied on art. 10, § 6, of the Constitution of 1869, which provides that "the legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the land office, except to actual settlers upon the same and in lots not exceeding 160 acres." 2 Charters & Constitutions, 1816. But this evidently relates only to legislative grants of land, and not to judicial proceedings to declare and enforce escheats.

Even if the suggestion in Hughes v. State, above cited, that art. 4, § 20, of the Constitution 274] of 1869, relating to the *comptroller of accounts, "is in conflict with, and therefore revokes, the authority conferred by the statute of 1848 upon the court to order the sale of escheated land," should be considered as well founded, it would affect only § 11 of the statute, authorizing the sale, and so much of the subsequent sections as concern that subject; and would leave unaffected the preceding sections, providing for a judgment to be rendered, upon due allegation and proof, and after notice to all persons interested, ascertaining and declaring that the land has escheated to the state, and vesting in the state the title to the land. The provisions looking to a judgment vesting title to the land in the state are distinct and severable from the provisions for a sale, and a conversion into money, of the land after it has vested in the state; and if the latter provisions are for any reason invalid, they may 161 U.S.

As to personal property, indeed, a judgment in rem after notice by publication only might not bind persons who had no actual notice of the proceedings, unless the thing had been first seized into the custody of the court. The Mary, 13 U. S. 9 Cranch, 126, 144 [3: 678, 684]; Scott v. McNeal, 154 U. S 34, 46 [38: 896, 901]; Hilton v. Guyot, 159 U. S. 113, 167 [ante, 145, 151]. But it was within the power of the legislature of Texas to provide for determining and quieting the title to real estate [275 within the limits of the state and within the jurisdiction of the court, after actual notice to all known claimants, and notice by publication to all other persons. Phillips v. Moore, 100 U. S. 208, 212 [25: 603, 604]; Arndt v. Griggs, 134 U. S. 316 [33:918]; Hardy v. Beaty, 84 Tex. 562, 569.

When a man dies the legislature is under no constitutional obligation to leave the title to his property, real or personal, in abeyance for an indefinite period; but it may provide for promptly ascertaining, by appropriate judicial proceedings, who has succeeded to his estate. If such proceedings are had, after actual notice by service of summons to all known claimants, and constructive notice by publication to all possible claimants who are unknown, the final determination of the right of succession, either among private persons, as in the ordinary administration of estates, or between all persons and the state, as by inquest of office or similar process to determine whether the estate has escheated to the public, is due process of law; and a statute providing for such proceedings and determination does not impair the obligation of any contract contained in the grant under which the former owner held, whether that grant was from the state or from a private person. Judgment affirmed.

699

Argued January 13, 14, 1896. Decided March receiver had on hand in cash for distribution