Petition — De Tenorio v. Lightsey
Supreme Court brief1979
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78-1698 FR
FILED
Lueaiibiicitit wis
Mir Ha TFt Re OnAK, rm CLERK
In the Supreme Court of the United States
OCTOBER TERM, 1978
No.
DOROTEA ZALDIVAR V. DE TENORIO, ET AL..
Petitioner, :
VS.
CHARLES LAVELL LIGHTSEY, ET AL.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
VARDAMAN S. DUNN
Post Office Box 1046
Jackson, Mississippi 39205
Davin A. KATTAN
419 Gravier Street
New Orleans, Louisiana 70130
Paut M. NEVILLE
Post Office Box 5376
Meridian, Mississippi 39301
Attorneys of Record for Petitioner
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
—_
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SSR RSI NSN Scale es cE Sena eT mE rT A 2
QUESTIONS FOR REVIEW .............00:0:.cccsciccscsecesssssccesesnes 2
TREATY AND CONSTITUTIONAL AND STATU-
TORY PROVISIONS DIRECTLY INVOLVED ........ 3
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ARGUMENT—
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III. Intrusion of State Into Foreign Affairs to Be
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esi ahct da calandacnpesosiaisanthecadichsbendspaleontebions 23
APPENDIX—
A. Opinion of District Court: 364 F.Supp. 1051
UN MI) TIPITED 505 ccsnce iw Casiicesnnecdeiecncmasibiaacabiin Al
B. Opinion of Court of Appeals: 510 F.2d 92
SN, TER. sachet atensisinsinsbekaecinnipatishvincsenchanestiien A23
C. Opinion on Petition for Rehearing: 513 F.2d
"4 FS! SE EICREE Sat npn SAMO ane tend Oe A68
D. Treaty of Friendship, Commerce and-Consular
Rights With the Republic of Honduras, Ar-
NE 1, See ee ail etet Sean nce Sw I TEE A72
E. Mississippi Code of 1972, §89-1-23 0.000000... AT77
F. Schedule of Treaties Affected by Decision .... A78
G. Opinion of the United States District Court
EE Ss ISS SPORES eR Ee A82
H. Slip Opinion of the United States Court of
Appeals, Fifth Circuit (February 16, 1979) .... A97
II
TABLE OF CASES
Asakura v. City of Seattle, 265 U.S. 332, 44 S.Ct. 515
NS hs UTE ALL ONO A CP 12, 20
Bacardi Corporation of America v. Domenech, 311 U.S.
DON Ms RU CII coi cckcchccssadinecsnacasasnen-chowmssncnsoncnne 20
Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390 (1901) .... 17
Clark v. Allen, 331 U.S. 503, 67 S.Ct. 14351 (1947) ............ 21
DeGeoffroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295 (1890) .. 20
Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191
iy SB MUSRAP AEE TAC a a RITE Hen Ie SOs ge nD 19
Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848
Deanne ee ee ne ee ceanaipegisepeinniant 14
Havenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 1850
GCE RRS TCE I cL ES EAR eo ALONE eo eee ee 20
Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399 (1941) ... 23
Johnson v. Robinson, 94 S.Ct. 1160 (1974) —...0. ee... 16
Jordan v. Tashiro, 278 U.S. 123, 49 S.Ct. 47 (1928) ........ 20
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct.
adn 9
Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544 (1967) ...... 9
Oyama v. State of California, 332 U.S. 633, 68 S.Ct. 269
PUNE. ctlab cai linlel ict ccciesis pie Bncicancsececld thantiasecteregucen i ip ee 15
Quong Ham Wah Co. v. Industrial Accident Commis-
sion, 192 Pac. 1021, 12 A.L.R. 1190, error dism. 255
Ua. O08, 4105 C2 STS (Cal, 1920) oon. eee ccc 19
Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842
ae ean 15
Sullivan v. Kidd, 254 U.S. 433, 41 S.Ct. 158 (1920) ........ 21
Dorotea Zaldivar V. de Tenorio v. H. E. McGowan, ame
op eS wt RE | >. ) nae ECR 1,4
Dorotea Zaldivar V. de Tenorio v. H. E. McGowan, 510
F.2d 92 (CA 5, 1975), 513 F.2d 294 (CA 5, 1975) .... 2,6
‘Ill
Dorotea Zaldivar V. de Tenorio, et al. v. Charles Lavell
Lightsey, et al., No. 77-1242 (CA 5, 1979) ................ 2
Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15 (1923)
sans wbaneonaslones pitpiddesoaasiieasacase tiiieabamesihcadsicdisemaitaaddaaa iad 14, 15, 16-17
Weinberger v. Wisenfeld, 420 U.S. 636, 95 S.Ct. 1225
CRBTRY ccihaccinccccenn cei ations 16, 18, 19
Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664 (1968) 22, 23
TREATIES
Treaty of Friendship, Commerce and Consular Rights
With Honduras, 45 Stat. at Large 2618 (December
Fo WORRY snseciicncecspeesieipinndennicnnicgugeadacaminaaaae 3,4
yk ONE MOOREA Ere RI RS Sis 3, 7, 12, 15, 19
CONSTITUTIONAL PROVISIONS
AND STATUTES
Constitution of the United States
PACU TI oi csicsiececcatnnes chamenaones isis ssge winmeiaiccigele saa 2
DUI BY siihiciiscixidinds.. distin 18
ph 5 SRE mre ak sa ea MN SRT +
Miss. Code 1972
Se an ecesnsssasessscesaniess Gepsnnldavesalleunanceglaniiasacaiasiinnrdal 4, 8,13
CARE | eorcntikskinionkesasackeccsinecaee eee 13
In the Supreme Court of the United States
OCTOBER TERM, 1978
DOROTEA ZALDIVAR VY. DE TENORIO, ET AL.,
Petitioner,
VS.
CHARLES LAVELL LIGHTSEY, ET AL.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioner, Dorotea Zaldivar V. de Tenorio, joined
by co-appellants below, respectfully prays issuance of a
writ of certiorari to review the judgment of the Court of
Appeals for the Fifth Circuit, which re-adopted on a second
appeal a previous decision which reversed the United States
District Court for the Southern District of Mississippi,
Judge Godbold dissenting, and declined to grant relief
on constitutional grounds.
OPINIONS BELOW
Dorotea Zaldivar V. de Tenorio v. H. E. McGowan, 364
F. Supp. 1051 (D.C. Miss., 1973) (Apx. A).
2
Dorotea Zaldivar V. de Tenorio v. H. E. McGowan, 510
F.2d 92 (CA 5, 1975) (Apx. B), also Opinion denying
Petition for Rehearing, 513 F.2d 294 (CA 5, 1975) (Apx.
C).
Dorotea Zaldivar V. de Tenorio, et al. v. Charles Lavell
Lightsey, et al., (D.C. Miss., 1976) (Apx. G).
Dorotea Zaldivar V. de Tenorio, et al. v. Charles Lavell
Lightsey, et al., No. 77-1242 (CA 5, 1979) (Apx. H).
JURISDICTION
The last judgment of the Court of Appeals was dated
and entered on February 16, 1979.
The case involves the construction and application
of a Treaty. 45 Stat. 2618. It also involves limitations
upon a state statute as mandated by the Treaty and by
the Constitution of the United States. Jurisdiction is
conferred by Article III, Section 2, United States Constitu-
tion, and 28 U.S.C., 1254(1).
QUESTIONS FOR REVIEW
1. When a treaty between the United States and other
nations provides that the nationals of each High Contract-
ing Party shall receive the “most constant protection and
security” for their property and that such property may
not be taken “without due process of law and without
payment of just compensation”, what federal rights, if
any, do non-resident aliens of those treaty nations have to
avoid adverse discrimination under a state statute which
allows aliens of some favored nations to inherit and hold
land without limitation, but which deny the same right
to others purely because of national origin?
3
2. Under federal law, may a state statute relating
to the inheritance of property by aliens be so construed
as to allow some state selected aliens to inherit and hold
land within the state and to deny the same right to other
non-favored aliens, without cause other than a desire to
discriminate on the basis of national origin?
3. Does such a state statute by which the citizens of
chosen nations are favored and those of others disfavored
involve the state impermissibly in those foreign affairs or
international relations which are entrusted by the Con-
stitution solely to the Federal Government?
TREATY AND CONSTITUTIONAL AND STATUTORY
PROVISIONS DIRECTLY INVOLVED
Treaty of Friendship, Commerce and Consular Rights
between the United States of America and the Republic
of Honduras (December 7, 1927). 45 Stat. at Large 2618
(Apx. D).
TREATY EXCERPTS - ARTICLE I
“The nationals of each High Contracting Party
shall enjoy freedom of access to the courts of justice
of the other on conforming to the local laws, as well
for the prosecution as for the defense of their rights,
and in all degrees of jurisdiction established by law.
“The nationals of each High Contracting Party
shall receive within the territories of the other, upon
submitting to conditions imposed upon its nationals,
the most constant protection and security for their
persons and property, and shall enjoy in this respect
that degree of protection that is required by interna-
tional law. Their property shall not be taken without
due process of law and without payment of just com-
pensation.”
4
CONSTITUTION OF THE UNITED STATES
ARTICLE VI
“2. This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bownd thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
MISS. CODE 1972, §89-1-23 (EXCERPTS)
(Apx. E)
“Resident aliens may acquire and hold land, and
may dispose of it and transmit it by descent, as citizens
of the state may; but non-resident aliens shall not
hereafter acquire or hold land, .. .”
“Provided, further non-resident aliens who are
citizens of Syria or the Lebanese Republic may inherit
property from citizens or residents of the state of
Mississippi.”
STATEMENT OF THE CASE
The federal jurisdiction in the Court of first instance
was based upon the existence of federal questions, es-
pecially Treaty questions. 28 U.S.C., §1331. Tenorio v.
McGowan, 364 F. Supp. 1051 (1973) (Apx. A).
The District Court found that the Honduran Nationals
were protected in their property rights under the circum-
stances of the case by the letter and spirit of the Treaty
of Friendship, Commerce and Consular Rights with the
Republic of Honduras (45 Stat. 2618) despite a Mississippi
9)
statute which itself protected some named aliens but with-
held its protection from others, including Honduran Na-
tionals among those not so favored. The circumstances
are those outlined below.
The land was acquired by Elbert J. McGowan about
1915. Elbert, along with his brother, Hamilton E. Mc-
Gowan, lived, at the time, in Vossburg, in rural Clarke
County, Mississippi. About this time, Elbert left for Cen-
tral America and returned infrequently.
On leaving, Elbert entrusted his land to his brother,
Hamilton, who agreed to look after the place and pay
the taxes “as a favor to his brother and for use of said
land”.
In 1940, Elbert married a native Honduran, Maria
Obdulia Zaldivar, and lived with her in Central America
until his death, seventeen years later. Neither Elbert nor
his Honduran wife changed citizenship. Elbert never
brought his wife, a non-white, to Clarke County, Missis-
sippi. She spoke very little English. Maria Obdulia Zaldi-
var McGowan was Elbert’s sole heir.
Elbert’s widow had no knowledge of Elbert’s land
ownership in Clarke County. No formal administration
was opened upon his estate in Mississippi, but his brother,
Hamilton, had the land tax assessment changed from Elbert
(E. J.) McGowan to the “E. J. McGowan Est.”
Hamilton did not communicate with Elbert’s widow
or make any effort to do so, but continued to manage
Elbert’s land as he had done prior to his death, using
the land then assessed to his brother’s estate and keeping
the profits for the payment of taxes just as before.
Elbert’s widow died in Honduras on February 28, 1969,
still ignorant of her Mississippi inheritance.
6
Elbert’s widow was survived by a sister, petitioner,
Dorotea Zaldivar V. de Tenorio, with whom she had lived
in Honduras since her husband’s death in 1957, and one
brother, whose assignees are parties also. After her sister’s
death, Dorotea learned of Elbert’s land in Mississippi, when
she was approached to give an oil lease. The present
suit followed and was filed on April 12, 1971, two years
after Obdulia’s death. It has been on-going since that
time.
On appeal, a panel of the Fifth Circuit Court of Ap-
peals (Judge Godbold dissenting) reversed, holding that
under the Mississippi statute as modified by the Treaty,
the Honduran national had lost her inheritance by the
passage of time, and remanded the case for further proceed-
ings (Opinion, 510 F.2d at 102, Apx. B). This Court denied
review on petition for writ of certiorari, Justice Blackmun
dissenting, 423 U.S. 877, 96 S.Ct. 150 (Oct. 6, 1975).
Since the Fifth Circuit noted in the majority opinion
that “The Mississippi statute was not attacked in the Dis-
trict Court and there was no request that a three judge
court be convened”, the plaintiffs amended the complaint
on remand to attack that portion of the Mississippi statute
which, as applied, discriminated against Honduran citizens
by its denial of unrestricted inheritance rights to Hon-
durans while allowing citizens of other nations to inherit
land.
However, petitioners fared no better under the amend-
ment because both the District Court (Apx. G) and a
second panel of the Fifth Circuit on a second appeal (Apx.
H) viewed the issue thus raised as being foreclosed by
the law of the case as announced on the first appeal,
hence this petition for certiorari.
ARGUMENT
I. In General
This case involves the construction of a Treaty with
the Republic of Honduras, but as shown by the “Schedule
of Treaties Affected by Decision” (Apx. F), at least twenty-
three treaties to which the United States is a party are
similar to the Honduran Treaty. The Treaty with Honduras
is unique in that it borrows the “due process of law”
concept found in the Fifth and Fourteenth Amendments
to the Constitution of the United States. This Article
I of the Treaty provides that the Nationals of each High
Contracting Party:
“.. Shall receive . .. the most constant protection
and security for their persons and property.... Their
property shall not be taken without due process of
law and without payment of just compensation.” (Em-
phasis added).
The Mississippi statute in question here would bar
all non-resident aliens from acquiring or holding land,
except that non-resident aliens who are citizens of Missis-
sippi’s favored nations (Syria and the Lebanese Republic)
may inherit land without limitations, albeit these also re-
main disqualified to acquire land by other means, such
as by purchase. In pertinent part, the Mississippi statute
provides:
“Resident aliens may acquire and hold land, and
may dispose of it and transmit it by descent, as citizens
of the state may; but non-resident aliens shall not
hereafter acquire or hold land, .. .”
“Provided, further, non-resident aliens who are
citizens of Syria or the Lebanese Republic may inherit
8
property from citizens or residents of the state of
Mississippi.” (§89-1-23, Miss. Code 1972, Apx. E).
On the state government level, the choice among na-
tions for conferring inheritance rights to some but not
to others has no articulated or apparent basis for its dis-
crimination except a preference based alone on the accident
of national origins.
In order to eliminate this invidious discrimination and
continue to allow citizens of the two state-favored nations
to inherit, it is only necessary to strike down the phrase
“who are citizens of Syria or the Lebanese Republic”.
The result would be an across-the-board prohibition against
non-resident aliens from acquiring or holding land, except
by inheritance, and an inclusion of all aliens in the al-
lowance or acquisition and holding land by inheritance.
The non-discrimination mandated by “due process of
law” as borrowed from our Constitution and incorporated
in the controlling Treaty, requires this much as a minimum,
if the concept is to apply at all.
The Fifth Circuit majority on the first appeal rejected
the concept that states may not pick and choose among
nations for favoritism. This was upon the view that the
Fourteenth Amendment does not apply to aliens not within
the jurisdiction of the United States. The “due process
of law”, along with “equal protection of the law” and
the unauthorized “intrusion by the state into the field
of foreign affairs” arguments were brushed aside with
this language in the opinion:
“There are sundry other arguments which have
not gone unnoticed.
“Appellee turns the spotlight on Section 842 of
the Mississippi Code of 1942, which allows non-resident
9
alien citizens of Syria or the Lebanese Republic to
inherit property from citizens or residents of Missis-
sippi, but denies that righ: to all other non-resident
aliens. Hence, she argues that the statute ‘denies
to these selected aliens the equal protection of the
law, contrary to the Fourteenth Amendment [and]
constitutes an unconstitutional intrusion by the state
into the field of foreign affairs which is entrusted
to the President and Congress.’
“Resident aliens, lawfully in the United States,
are undoubtedly entitled to the equal protection of
the law, Graham v. Richardson, 403 U.S. 365, 91 S.Ct.
1848, 29 L.Ed.2d 534 (1971). It is equally obvious
that the Fourteenth Amendment, by its own terms, has
no application to aliens not within the jurisdiction of
the United States.
“Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person
of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.’
“The Mississippi statute was not attacked in the
District Court and there was no request that a three
judge court be convened.’ (510 F.2d at 101).
1. No injunctive relief was sought and no state officer was a
party and the necessity for requesting a three judge court under
28 U.S.C., §2281 was not apparent. Moody v. Flowers, 387 U.S. 97,
87 S.Ct. 1544 (1967); Kennedy v. Mendoza-Martinez, 372 U.S. 144,
83 S.Ct. 554 (1963). Nor was a three judge court requested by the
Amended Complaint and for the same reason.
10
Since the Court of Appeals decided that the Mississippi
statute was not attacked in the District Court, and that
its constitutional validity was, therefore, not before the
Court of Appeals, Petitioner, on remand for further pro-
ceedings, sought and obtained leave to amend the Com-
plaint and then, by amendment, specifically attacked that
portion of the statute which presented constitutional in-
firmity. The Amended Complaint alleged:
“That portion of the statute of the State of Mis-
sissippi purporting by its terms to allow non-resident
aliens who are citizens of Syria and the Lebanese
Republic to inherit property from citizens of the United
States and to deny such right to non-resident aliens
who are citizens of the Republic of Honduras, with
which country this nation has friendly and diplomatic
relations, inclusive of the Treaty of Friendship, Com-
merce and Consular Rights, is an unconstitutional in-
terference with the effective exercise by the federal
government of the nation’s foreign policy, even in
the absence of a treaty, as was held in principle in
Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664 (1968),
and related cases, and is in direct contradiction of
Article I, paragraph third and fourth of the prevailing
Treaty of Friendship, Commerce and Consular Rights
between the United States and the Republic of Hon-
duras, by which the nationals of each country are
to receive ‘the most constant protection and security
for their persons and property’ and by which such
nationals are to receive ‘due process of law’ in refer-
ence to their properties.
The treaty aforesaid incorporates as applicable to
the nationals of each country the substance of the
Fifth and Fourteenth Amendments to the Constitution
of the United States and assures to such nationals
11
the equal protection of the laws, which in the present
case, means at least protection equal to that afforded
to the nationals of Syria and the Lebanese Republic,
wherefore the phrase in said statute (third para-
graph)—‘who are citizens of Syria or the Lebanese
Republic’—is void and should be disregarded, so that
all non-resident aliens may be allowed to ‘inherit
property from citizens or residents of the State of
Mississippi,’ thereby preserving the rights of citizens
of Syria and the Lebanese Republic but disallowing
invidious discrimination against other nations, inclu-
sive of citizens of Honduras.
The Mississippi statute violates the Fifth and
Fourteenth Amendments to the Constitution of the
United States.”
But the District Court, on motion to strike, viewed
the issue as having already been decided on the first appeal
and proceeded to dismiss the Amended Complaint on its
view of the “law of the case” (Apx. G). Then, on the
second appeal to the Fifth Circuit, that Court affirmed,
saying:
“The plaintiff also alleges that the Mississippi sta-
tute prohibiting ownership of land by an alien was
unconstitutional. We disposed of that argument in
our prior opinion.” (Apx. H).
This ruling assumes that the Court addressed the con-
stitutional issue in its prior opinion, when in point of
fact, this is not the case, because the Court dismissed
the constitutional point on the observation that the statute
was not attacked in the District Court on the first trial
“and there was no request that a three judge court be
convened.”
12
An attempt was made to obtain review by this Court
of the original opinion, but the Petition for Writ of Cert-
iorari was denied, - Justice Blackmun dissenting, 423 U.S.
877, 96 S.Ct. 150 (October 6, 1975).
Having now duly raised the constitutional questions
below and having suffered summary rejection on the mis-
taken view that the important questions were previously
faced and decided we again seek to gain a review on
the limited questions previously stated.
Returning now to the Fifth Circuit’s original opinion,
it completely ignores the fact that the equivalent of the
Fifth Amendment and Fourteenth Amendment was written
into the Treaty, just as these “due process of law” mandates
are written into our Constitution. By applying the letter
of constitutional concepts to citizens of the Republic of
Honduras, the Treaty also must be read as invoking, as
well, the spirit of due process which proscribes invidious
discrimination by state law on the basis solely of national
origin.
II. Due Process of Law
The Treaty with Honduras rings a familiar constitu-
tional bell, saying simply and without qualification of any
sort:
“Their property shall not be taken without due process
of law and without payment of just compensation.”
Art. I.
The Treaty operates by its own force and stands equal
to our Constitution in supremacy as the law of the land.
As put in Asakura v. City of Seattle, 265 U.S. 332, 44
S.Ct. 515 (1924):
13
“
. . . It stands on the same footing of supremacy
as do the provisions of the Constitution and laws of
the United States. It operates of itself without the
aid of any legislation, state or national; and it will
be applied and given authoritative effect by the courts.
...” (44S8.Ct. at 516).
The Treaty does not say who may not take their
property but simply that their property shall not be taken
without due process of law and payment of just compensa-
tion. And to add vigor to the proscription against the
taking, it provides, in the same Article, that the Nationals
shall receive in the territories of each other “the most
constant protection and security for their persons and prop-
erty.”
In Mississippi, a widow, absent children and apart
from alienage, inherits the whole of her husband’s estate.”
Since the Treaty stands on its own and is unqualified
in its proscription against taking property and, therefore,
is broader in scope than the Fifth and Fourteenth Amend-
ments to the Constitution, there is no necessity for inquiry
into such questions as whether a Honduran is a “person”
or “any person” or is one within the “jurisdiction” of
a state which seeks to discriminate, as those terms are
used in our Constitution. However, recourse may be had,
by way of analogy, to the decisions of this Court involv-
ing the scope of “due process of law” as applied to those
entitled to its protective sweep.
2. Miss. Code 1972, §91-1-7: “If a husband die intestate and
do not leave children or descendants of children, his widow shall
be entitled to his entire estate, real and personal in fee simple,
after payment of his debts. . . .”
This statute does not except non-resident aliens. It is by an-
other separate statute that non-resident aliens, with certain ex-
ceptions, are prohibited from acquiring and holding land. See
§89-1-23 (Apx. E).
14
We approach the due process question from the view-
point of its proscription against discrimination and its man-
date for equal protection of the law.
The excuse given for discrimination against aliens,
in the absence of overriding treaties, has been called the
“special public-interest doctrine.” In relation to the own-
ership of land, the doctrine articulates itself in the context
of the special public interest in reserving the land to
those who are citizens or at least to those who reside
within the state. The theory is that non-residents do not
effectually work for the welfare of the state. Terrace
v. Thompson, 263 U.S. 197, 44S.Ct. 15 (1923).
But the discrimination on this basis is not only viola-
tive of the Treaty’s ‘due process of law” mandate, but
is without a rational basis, because non-resident citizens
of other states and non-resident aliens who happen to
be citizens of Syria or the Lebanese Republic are no less
ineffectual as welfare workers than are non-resident citi-
zens of other countries, such as the Republic of Honduras.
Moreover, recent decisions of this Court have cast
doubt upon the special public-interest doctrine in all con-
texts, including the denial to aliens of the right to acquire
and own land. In Graham vy. Richardson, 403 U.S. 365,
91 S.Ct. 1848 (1971), for example, this Court in invalidat-
ing discrimination against aliens by state welfare laws
under the Fourteenth Amendment, said:
“. . On the same theory (special public-interest),
the Court has upheld statutes that, in the absence
of overriding treaties, limit the right of noncitizens
to engage in exploitation of a State’s natural resources,
restrict the devolution of real property to aliens, or
deny to aliens the right to acquire and own land.
15
“Takahashi v. Fish & Game Comm’n, 334 U.S. 410,
68 S. Ct. 1138, 92 L.Ed. 1478 (1948), however, cast
doubt on the continuing validity of the special public-
interest doctrine in all contexts. There the Court
held that California’s purported ownership of fish in
the ocean off its shores was not such a special public
interest as would justify prohibiting aliens from mak-
ing a living by fishing in those waters while permitting
all others to doso....” (91 S.Ct. 1853).
See also: Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct.
2842 (1973), and cf. Oyama v. State of California, 332
U.S. 633, 68 S.Ct. 269 (1948), as casting further serious
doubt on the right of a state to exclude aliens under
Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15 (1923),
and related cases, from acquiring and holding land.
True, these cases deal with resident aliens who are
entitled to the benefits of the Fourteenth Amendment,
but it is equally true that the Honduran Treaty carries
the constitutional equivalent in its Article I guarantee
of “due process of law” and “‘just compensation.”
However, we need not debate the question of the
continuing validity of the public interest doctrine as applied
to non-resident aliens, because the invidious discrimination
against the federally favored nationals of the Republic
of Honduras can easily be eliminated by simply affording
to Hondurans equal treatment under the law. And this
may be done by a fair and equitable, and certainly by
the required liberal, construction and application of the
Treaty provisions: “Their property shall not be taken
without due process of law and without payment of just
compensation.” (Art. I).
Like the Fifth Amendment, the Treaty equivalent
makes no express reference to the “equal protection of
16
the laws,” such as is found in the Fourteenth Amendment.
However, it is settled that an unjustified discrimination
violates the concept of “due process of law”. As said
in Johnson: v. Robinson, 94 S.Ct. 1160 (1974), foot-
note 4:
“Although ‘the Fifth Amendment contains no equal
protection clause, it does forbid discrimination that
is “so unjustifiable as to be violative of due process.” ’
Schneider v. Rusk, 377 U.S. 163, 168, 84 S. Ct. 1187,
1190, 12 L. Ed. 2d 218; see Frontiero v. Richardson,
411 U.S. 677, 680 n. 5, 93 S. Ct. 1764, 1767, 36 L. Ed.
2d. 583 (1973); Shapiro v. Thompson, 394 U.S. 618,
641-642, 89 S. Ct. 1322, 1335, 22 L. Ed. 2d 600 (1969);
Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98
L. Ed. 884 (1954). Thus, if a classification would
be invalid under the Equal Protection Clause of the
Fourteenth Amendment, it is also inconsistent with
the due process requirement of the Fifth Amendment.
See Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct.
254, 257, 30 L. Ed. 2d 231 (1971).”
Also: Weinberger v. Wisenfeld, 95 S.Ct. 1225 (1975),
especially footnote 2, and cases cited.
The Treaty guaranty of “due process of law” to Hon-
duran Nationals is at least equal to the due process man-
date of the Fifth Amendment as it applies to require the
equal protection of the laws equivalent in scope to the
Fourteenth Amendment’s proscription against discrimina-
tion.
Equal treatment of “resident” aliens with citizens finds
compulsion under the Fourteenth Amendment, and the
Mississippi statute provides for equal treatment. The stat-
ute then disfavors “non-resident” aliens as compared with
citizens and resident aliens. If it had stopped here, Terrace
17
v. Thompson, 263 U.S. 197, 44 S.Ct. 15 (1923) might be
cited as justification for the classification, absent an over-
riding treaty.“ But it did not stop here. The statute
proceeded to attempt to classify “non-resident” aliens as
among themselves. Specifically, it chose non-resident
aliens who are citizens of Syria or the Lebanese Republic
on whom to confer the right to inherit property without
restriction, disfavoring in this respect other non-resident
aliens.
It is perfectly proper for Mississippi to enact a law
allowing non-resident aliens to inherit property in the
state. That question was settled by this Court in Blythe
v. Hinckley, 180 U.S. 333, 21 S.Ct. 390 (1901).
To strike this proviso would be to penalize the Na-
tionals of the two favored nations and to deprive Missis-
sippi of the unquestioned right to allow the Nationals
to inherit. And we do not suggest such a course. Nor
is it necessary to strike down the statute in its entirety.
Instead, the statute must be read in conjunction with
the Treaty, which effectively adds, through its due process
mandate, the Republic of Honduras to the statutory list
of favored nations as if the statute had listed Honduras
along with Syria and the Lebanese Republic.
3. The Court, in Terrace v. Thompson, 263 U.S. 197, 44 S.Ct.
15 (1923), was careful to limit the permissible exclusion of non-
resident aliens to enactments which treated all aliens equally,
saying:
“State legislation applying alike and equally to all aliens,
withholding from them the right to own land, cannot be said
to be capricious or to amount to an arbitrary deprivation of
liberty or property, or to transgress the due process clause.”
(44 S.Ct. at 19).
As noted previously in this brief, much doubt has been cast
upon the doctrine cited in support of Terrace v. Thompson, supra,
even when all aliens are treated alike.
18
This, we submit, is the minimum to be afforded by
the guaranteed due process of law to Honduran Nationals.
Not only this, but the equalization of rights is mandated
by regard for the recognized general purpose of treaties
of amity and commerce to avoid injurious discrimination.
As this Court held in Todok v. Union State Bank of
Harvard, Nebraska, 281 U.S. 449, 50 S.Ct. 363 (1930):
“|. While treaties, in safeguarding important rights
in the interest of reciprocal beneficial relations, may
by their express terms afford a measure of protection
to aliens which citizens of one or both of the parties
may not be able to demand against their own govern-
ment, the general purpose of treaties of amity and
commerce is to avoid injurious discrimination in either
country against the citizens of the other... .” (50
S.Ct. at 366).
This means of eliminating discrimination by giving
effect to the Honduran Treaty as a part of the law of
Mississippi does no violence to state policy. Since other
non-resident aliens are allowed by statute to acquire land
by inheritance, there obviously is no non-ownership policy
against non-resident aliens per se. Cf. Weinberger v.
Wisenfeld, 95 S.Ct. 1225 (1975).
It is only by construing the treaty protection guaran-
tees to extend at least this far that due process may be
assured. Anything less makes a mockery of the treaty
promises of the “most constant protection and security for
their persons and property”.
The addition to a favored class of those impermissibly
excluded by state laws has been a means of eliminating
invidious discrimination in analogous situations. For ex-
ample, relief has been afforded to citizens of foreign states
under Article IV, Section 2, Clause 1, Constitution of the
19
United States, by extending a privilege allowed expressly
only to citizens of a state to apply equally in favor of citi-
zens of sister states. See Quong Ham Wah Co. v. Industrial
Accident Commission, 192 Pac. 1021, 12 A.L.R. 1190, error
dism, 255 U.S. 445, 41 S.Ct. 373 (Cal., 1920). Just as Article
IV writes itself into state laws to extend the privileges
granted to its own citizens to those of the several states,
so, in this case, does the Treaty write itself into the law of
Mississippi to require protection and equal security.
Cf. Weinberger v. Wisenfeld, 420 U.S. 636, 95 S.Ct.
1225 (1975) where social security survivor’s benefits were
extended to widowers although the Social Security Act ex-
pressly extended such benefits only to widows, reliance
being placed for the decision on the equal protection aspect
of the Fifth Amendment’s due process requirement.
Our position is that the forfeiture imposed by the Fifth
Circuit was not what the Treaty envisioned by the guar-
antees of Article I for the “most constant protection and
security” for the property of Treaty Nationals and for due
process and just compensation and, at best, violated the
established canon applicable to treaties which requires a
liberal construction in favor of Treaty claims by Nationals.
In Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191
(1933), the Court followed a long line of its own decisions
and announced:
“In choosing between conflicting interpretation of a
treaty obligation, a narrow and restricted construction
is to be avoided as not consonant with the principles
deemed controlling in the interpretation of interna-
tional agreements. Considerations which should gov-
ern the diplomatic relations between nations, and the
good faith of treaties, as well, require that their obli-
gations should be liberally construed so as to effect
20
the apparent intention of the parties to secure equality
and reciprocity between them. For that reason if a
treaty fairly admits of two constructions, one restrict-
ing the rights which may be claimed under it, and the
other enlarging it, the more liberal construction is to
be preferred. Jordan v. Tashiro, 278 U.S. 123, 127, 49
S.Ct. 47, 73 L.Ed. 214; Geoffroy v. Riggs, 133 U.S. 258,
271, 10 S.Ct. 295, 33 L.Ed. 642; In re Ross, 140 USS.
453, 475, 11 S.Ct. 897, 35 L.Ed. 581; Tucker v. Alex-
androff, 183 U.S. 424, 437, 22 S.Ct. 195, 46 L.Ed. 264;
Asakura v. Seattle, 265 U.S. 332, 44 S.Ct. 515, 68 L.Ed.
1041... .”. (Emphasis added) (54 S.Ct. at 195-196).
Given a possible choice between constructions, this
Court has frequently reannounced and consistently ad-
hered to the canon and has always chosen the one avoiding
restrictions and enlarging rights claimed under treaties.
For example, see: Havenstein v. Lynham, 100 U.S. 483, 25
L.Ed. 1850 (1879); Asakura v. City of Seattle, 265 U.S. 332,
44 S.Ct. 515 (1924); Jordan v. Tashiro, 278 U.S. 123, 49 S.Ct.
47 (1928); and Todok v. Union State Bank of Harvard,
Nebraska, 281 U.S. 449, 50 S.Ct. 363 (1930).
See also: Bacardi Corporation of America v. Domen-
ech, 311 U.S. 150, 61 S.Ct. 219 (1940), for the most recent
reannouncement of the rule of construction.
In DeGeoffroy v. Riggs, 133 U.S. 258, 10 S.Ct. 295
(1890), the Court held that protection of property was a
fitting subject for negotiation between two countries and
that the removal of disabilities “to hold, transfer, and in-
herit property in such cases, tends to promote amicable re-
lations. Such removal has been, within the present cen-
tury, the frequent subject of treaty arrangement.” (10
S.Ct. at 296-297).
21
The citations could be multiplied but the foregoing il-
lustrate the pattern for liberal construction in regard to
property claims. Moreover, it is said in Sullivan v. Kidd,
254 U.S. 433, 41 S.Ct. 158 (1920):
“... All parts of a treaty are to receive a reasonable
construction with a view to giving a fair operation to
the whole.” (41 S.Ct. at 161).
III. Intrusion of State Into Foreign Affairs
to Be Avoided
By viewing the Mississippi statute as permitting dis-
crimination against Honduran Nationals in the face of the
“due process of law” requirements of the Treaty, the Court
of Appeals has so construed the statute as to allow an in-
trusion by the state into the field of foreign affairs, which
the Constitution entrusts to the President and the Congress.
The present case is not an instance where what Missis-
sippi has done has only an incidental or indirect effect in
foreign countries. Cf. Clark v. Allen, 331 U.S. 503, 67 S.Ct.
1431 (1947). Instead, it has the direct effect of depriving
a Honduran National of her inheritance while allowing
aliens of other even less federally favored nations to in-
herit and hoid property without limitation, - a deprivation
which the explicit “due process of law” treaty command
prohibits.
This direct involvement of the state in choosing among
citizens of foreign countries for favoritism in such a vital
area as enjoyment of property rights is no less an intrusion
into the field of foreign affairs than was the attempt by
the state of Oregon, for example, to condition the right of
inheritance by aliens in general upon the existence of
reciprocal rights extended by the foreign country to United
States citizens, as described by this Court in Zschernig v.
Miller, 389 U.S. 429, 88 S.Ct. 664 (1968).
))
When Mississippi chose two countries to favor with
the right to inherit and hold land without limitation, it
necessarily launched some inquiry into the type of govern-
ments or the type of aliens which it considered worthy of
favor and made its choice solely on the basis of favored na-
tional origin. A more direct involvement in foreign affairs
is difficult to imagine. It is forcefully condemned in prin-
ciple by Zschernig v. Miller, supra, wherein the Court said:
“We do not accept the invitation to re-examine our
ruling in Clark v. Allen. For we conclude that the his-
tory and operation of this Oregon statute make clear
that § 111.070 is an intrusion by the State into the field
of foreign affairs which the Constitution entrusts to
the President and the Congress. See Hines v. Davido-
witz, 312 U.S. 52, 63, 61 S.Ct. 399, 402, 85 L.Ed. 581.”
(88 S.Ct. at 666).
Also:
“... The several States, of course, have tradition-
ally regulated the descent and distribution of estates.
But those regulations must give way if they impair the
effective exercise of the Nation’s foreign policy. .. .”
(88 S.Ct. at 671).
Also:
“The Oregon law does, indeed, illustrate the dan-
gers which are involved if each State, speaking through
its probate courts, is permitted to establish its own
foreign policy.” (88 S.Ct. at 671).
Specially concurring, Justice Stewart, joined by Justice
Brennan, concluded:
“, .. Of course state courts must routinely construe
foreign law in the resolution of controversies properly
before them, but here the courts of Oregon are thrust
23
into these inquiries only because the Oregon Legislature
has framed its inheritance laws to the prejudice of na-
tions whose policies it disapproves and thus has tres-
passed upon an area where the Constitution contem-
plates that only the National Government shall op-
erate... .” (88 S.Ct. at 671-672).
In Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399 (1941)
the Court held invalid an Alien Registration Act adopted by
Pennsylvania. This case was cited and followed in principle
in Zschernig v. Miller, supra. The Court noted:
“The importance of national power in all matters
relating to foreign affairs and the inherent danger of
state action in this field are clearly developed in Fed-
eralist papers No. 3, 4, 5, 42 and 80.” (61 S.Ct. at 402).
Dealing specifically with discrimination against aliens,
even in the absence of broad treaty guarantees, the Court
remarked:
“. . In general, both treaties and international
practices have been aimed at preventing injurious dis-
crimination against aliens... .”’ (61 S.Ct. at 403).
We submit that this case is significant in its effect upon
this’ Nation’s foreign affairs and its relations with those
countries with which it has negotiated treaties of friend-
ship and commerce. Why Mississippi chose to favor Syria
and the Lebanese Republic and to disfavor the Republic of
Honduras must remain a mystery, but whatever the reason
or lack of reason, this interference in the nation’s foreign
affairs should be corrected.
CONCLUSION
The citizens of the Republic of Honduras were favored
in a Treaty with the United States with a guarantee of the
24
most constant protection of their property by “due process
of law”, which includes freedom from invidious discrimina-
tion under state laws. Citizens of the United States were
likewise favored in return with application of the very
same protections for their property in Honduras. The
Treaty paved a two-way street. Under that Treaty, the
citizens of each country were assured “due process of law”
within the territories of the other for its citizens.
Instead of due process of law, the Honduran National
in this case has been subjected to the most flagrant adverse
discrimination under the Fifth Circuit’s construction of a
statute of the state of Mississippi. Surely, this is not the
“most constant protection” which the Honduran people
were led to expect from their Treaty with the United
States, where due process of law is a way of life and an ex-
ample to all of the free world.
The “due process of law” provision of the Honduran
Treaty is now unique, but it serves as a model for treaties
to come. We respectfully urge the Court to grant review
and to address the question of whether invidious discrimina-
tion is permissible under “due process of law” treaty man-
dates.
Respectfully submitted,
VARDAMAN S. DUNN
Post Office Box 1046
Jackson, Mississippi 39205
Davip A. KATTAN
419 Gravier Street
New Orleans, Louisiana 70130
Paut M. NEVILLE
Post Office Box 5376
Meridian, Mississippi 39301
Attorneys for Petitioner
APPENDIX
Al
APPENDIX A
Dorotea Zaldivar V. De TENORIO,
Plaintiff,
v.
H. E. McGOWAN et al., Defendants.
Civ. A. No. 1608.
United States District Court,
S. D. Mississippi, E. D.
Oct. 1, 1973.
[364 F. Supp. 1051]
OPINION OF THE COURT
DAN M. RUSSELL, Jr. Chief Judge.
Dorotea Zaldivar V. De Tenorio, a non-resident alien
of the United States and a citizen of the Republic of
Honduras, brought this action against numerous Mississippi
residents and non-residents, to confirm her title and in-
terest in and to a 37 acre tract of land in Clarke County,
Mississippi, more particularly described as:
“All of the NW'4 of NE'4, less 3 acres in the SW14,
of NW of NE, lying South of the Shubuta and
Vossburg Road, all in Section 22, Township 1, Range
14 East, containing 37 acres, more or less, in Clark
County, Mississippi,”
subject only to such outstanding oil, gas and mineral leases
or royalty conveyances as may have been executed by
her. Plaintiff claims that she inherited a one-half interest
in said tract from her sister of the whole blood, one Maria
Obdulia Zaldiver McGowan, widow and sole heir of FE.
A2
J. McGowan, deceased, the record owner of said tract
prior to a 1968 state court confirmation of title suit in
Clarke County, filed by H. E. McGowan, a defendant here-
in, and who was a brother of the aforesaid E. J. McGowan,
deceased.
By an order of this Court, dated June 11, 1973, amend-
ing the pre-trial order of the same date, certain parties
who failed to appear or participate in the pre-trial hearing
were adjudged in default and their claims were cancelled
and held for naught except as to any of said parties claim-
ing through the aforesaid H. E. McGowan, deceased, or
his assigns, in the event title in this action be confirmed
in H. E. McGowan. These parties are Wiley Fairchild,
Hattiesburg, Mississippi, a defendant to the original com-
plaint and to the cross-complaint of H. E. McGowan, et
al; J. L. Sellers, Hattiesburg, Mississippi, a defendant to
the original complaint; Cecil E. Barnett, Laurel, Mississippi,
and his assignee, Robert L. Thomsen, Jackson, Mississippi,
defendants to the original complaint; Hess Pipeline Com-
pany, Wilmington, Delaware, a defendant to the original
complaint; and Viking Oil Company, a Mississippi corpora-
tion, First Mississippi National Bank, Hattiesburg, Mis-
sissippi, John Bethea, Hattiesburg, Mississippi, and An-
selmo Zaldivar, Hilario Zaldivar, Felipe Murillo Zaldivar,
Adela Zaldivar, and Victor Zaldivar all of Puerto Cortes,
Honduras, defendants to the cross-complaint of H. E. Mc-
Gowan, et al.
The Court finds it unnecessary to detail in this opinion
a recitation of all the various and numerous pleadings
inasmuch as the aforesaid pre-trial order, as amended,
succinctly and accurately reflects the alignment of the
parties, the admitted matters and facts, pertinent docu-
ments, and the factual matters and legal issues in dispute.
The trial of the case, heard to the Court, was confined
A3
to the matters set out in the pre-trial order and the plead-
ings made pursuant thereto.
In the pre-trial order, it was admitted that all juris-
dictional questions were resolved as a result of an opinion
dated November 10, 1971 and order rendered thereon
wherein the Court found that it had jurisdiction under
28 U.S.C. § 1331, this action involving a construction
of a treaty of the United States.
FACTS ESTABLISHED IN THE
PRE-TRIAL ORDER
The 37 acre tract of land in Clarke County, Mississippi,
described above, was patented by the United States of
America to one Marmaduke Gardner in 1841 and by mesne
conveyances became vested in E. J. McGowan, then of
Clarke County, who acquired same as grantee in two war-
ranty deeds namely: a deed from T. J. Evans dated No-
vember 17, 1911, recorded in Deed Book I-1 at page 197,
conveying the NY of NW'4 of NE, and the SW of
NW, of NE‘, less 3 acres in Section 22, T 1, R 14 E, con-
taining 27 acres, more or less; and a deed from J. W. Mc-
Gowan dated December 15, 1915, recorded in Deed Book
I-1 at Page 196, conveying the SE, of NW14 of NE, in
the same section, township and range, containing 10 acres,
more or less, both of said deeds being filed for record on
December 20, 1915, and recorded thereafter in the deed
records of the Chancery Clerk of Clarke County. Copies
of these deeds are exhibits herein.
About 1911, E. J. (Elbert John) McGowan went to
Central America where he thereafter resided and worked
in various Central American countries, including Panama
and Honduras. He was lawfully married to Maria Obdulia
Zaldivar, born in Honduras of Honduran parents. This
marriage continued until the death of E. J. McGowan.
A4
There were no children born of this marriage. E. J. Mc-
Gowan and his wife took into their home and reared a
child, Elsie Reina McGowan,'! who was not their natural
child, nor legally adopted by them, nor an heir at law
of either E. J. McGowan or his wife. E. J. McGowan
died intestate in the Republic of Panama on October 31,
1957 leaving as his sole heir at law, his wife, Maria Obdulia
Zaldivar McGowan. She died intestate in the Republic
of Honduras on February 28, 1969, without having remar-
ried and without a child having been born to her and
without having legally adopted a child. She was survived
by one sister and one brother of the whole blood, namely
a sister, Dorotea Zaldivar V. De Tenorio, plaintiff herein,
and one brother, Felipe Murilla Zaldivar.2 There were
no other surviving brothers or sisters of the whole blood,
or descendants of a brother or sister of the whole blood.
The remaining brothers and sisters, viz:, Anselmo Zaldivar,
Hilario Zaldivar, Adela Zaldivar and Victor Zaldivar, are
of the half-blood, were named as defendants in the cross-
complaint of H. E. McGowan, and have defaulted herein.
Neither parent of Maria Obdulia Zaldivar McGowan sur-
vived her death. Nor did Maria Obdulia Zaldivar Mc-
Gowan, widow of E. J. McGowan, ever renounce her Hon-
duran citizenship. Although she resided in various local-
ities with her husband, E. J. McGowan, a citizen of the
1. Elbert John McGowan, James Patrick McGowan and
Louis Harold McGowan, minor children of Elsie Reina McGowan,
deceased, by their legal guardian, Peter K. Smith, were named
defendants in the original suit, answered, cross-claimed and chal-
lenged plaintiff’s original claim to the entire fee, basing their
claim to an interest in the realty through their mother, now de-
ceased, as an allegedly acknowledged daughter of E. J. McGowan.
They have abandoned this claim and claim an undivided one-half
interest in the realty, subject to mineral leases and royalties, by
virtue of a quit claim deed from Felipe Murrillo Zaldivar, brother
of the whole blood of Maria Obdulia Zaldivar McGowan, the com-
mon source of plaintiff’s claim.
2. See footnote No. 1.
AS
United States, she remained a citizen of Honduras and
died there.
After the death of E. J. McGowan, his brother, H.
E. McGowan, received an official “Report of the Death
of an American Citizen” from the Consul, American For-
eign Service Panama. This report was produced on plain-
tiff’s request and filed as an Exhibit herein.
Neither H. E. McGowan nor any member of the Mc-
Gowan family communicated with Maria Obdulia Zaldivar
McGowan upon or after the death of E. J. McGowan,
or undertook to advise her concerning the estate of E.
J. McGowan located in the United States. As stated above,
Maria Obdulia Zaldivar McGowan died intestate in Hon-
duras on February 28, 1969, leaving as her sole heirs at
law, a sister, plaintiff, Dorotea Zaldivar V. De Tenorio,
and a brother, Felipe Murillo Zaldivar.
On August 14, 1968, prior to the death of the widow
of E. J. McGowan, defendant, H. E. McGowan filed in
the Chancery Court of Clarke County, Mississippi, a confir-
mation suit, No. 7852 on the docket of that court, against
his brothers and sisters, the widow of a deceased brother
residing in Mississippi, and against “the unknown heirs,
if any, of E. J. McGowan, deceased.” A final decree was
entered on October 22, 1968, vesting the fee title in H.
E. McGowan, but no attempt was made to serve process
or give notice to Maria Obdulia Zaldivar McGowan, then
residing in Honduras. Copies of all pleadings in this suit
are exhibits herein.
The Treaty of Friendship, Commerce and Consular
Rights existing between the United States and the Re-
public of Honduras, a copy of which is an exhibit herein,
was in effect during all relevant periods of time.
A6
Plaintiff Dorotea Zaldivar Y. De Tenorio has executed
oil, gas and mineral leases to W. Baldwin Lloyd, brought
into the case by cross-claims filed by some of the original
defendants. His factual claims coincide with those of his
lessor, the plaintiff, Dorotea Zaldivar V. De Tenorio, and
are applicable to the one-half interest she claims in the
realty, subject to the reservation therein of a royalty in-
terest. These leases are recorded in Book OGL 66 at
page 238 and in Book OGL 67 at page 237 in Clarke
County and copies are exhibits herein. Felipe Murillo
Zaldivar executed a deed covering his interest in the realty
to Elbert John McGowan, James Patrick McGowan and
Louis Harold McGowan, wards of Peter K. Smith, guardian
of their estates, who, in turn, has executed oil, gas and
mineral leases to Corsair Petroleum Corporation recorded
in Book OGL 66 at pages 425, 427 and 429, retaining
a royalty interest. These instruments, or certified copies,
are exhibits herein.
Since the filing of the original complaint, Inexco Oil
Company, a defendant herein, has drilled an oi] well on
a production unit including the 37 acre tract. Amoco
Production Company, a defendant, is the operator of the
well. The purchaser of the oil production is Miller Oil
Purchasing Company, and the purchaser of the gas produc-
tion is Tonkawa Gas Purchasing Company.
PLEADINGS AND OTHER EVIDENCE
As a part of the pre-trial order plaintiff agreed to
amend her complaint to reduce her claim to a one-half in-
terest in the 37 acre tract, sunject to the lease executed by
her to W. Baldwin Lloyd, her title having been derived by
inheritance through her sister, Maria Obdulia Zaldivar
McGowan, who was survived by two and only two heirs,
namely, the plaintiff, sister of the whole blood, and Felipe
A7
Murillo Zaldivar, brother of the whole blood. Plaintiff
agreed to further amend her complaint to allege that since
the initiation of this suit, a well has been drilled on an
80 acre unit which includes the land in controversy; that
the well is now and has for some time been producing
oil and gas; that the well was drilled by defendant, Inexco
Oil Company, but is now being operated by the defendant,
Amoco Production Company, who is selling the oil and
gas production, and that plaintiff is entitled to a full ac-
counting and to a judgment for the proceeds accruing
to her interest in the oil and gas produced and sold from
said producing well and to the appointment of a Receiver
to receive and invest the said proceeds pending termination
of this litigation.
W. Baldwin Lloyd, holding a 7/8ths leasehold interest
under leases from the plaintiff, Dorotea Zaldivar V. De
Tenorio, agreed to amend his pleadings in line with the
claim of his lessor.
Peter K. Smith, Guardian; Corsair Petroleum Corpora-
tion; Paul M. Neville, individually and as trustee; W. C.
‘alkenheimer, J. Logan Sewell, James F. Conn, and Alice
B. Scroggins agreed to amend their pleadings to concede
that a one-half interest was cast by inheritance upon Doro-
tea Zaldivar V. De Tenorio and to allege that the remaining
one-half interest was cast by inheritance upon Felipe Mu-
rillo Zaldivar, who conveyed to the aforesaid wards of
Peter K. Smith, guardian, through whom the remaining
parties, next listed above, claim their titles and interests.
The guardian and these parties also demand a full account-
ing and a judgment for the proceeds of oil production
accruing to their interests.
These amendments have been made, and responses
have been duly filed by the following defendants and
cross-plaintiffs: H. E. McGowan, Hazel Draughon Mc-
A8
Gowan, Charles B. McGowan, Louise McGowan Hannah,
M. M. McGowan, B. C. Burns, Sr., H. D. Burns, Sr., Blanche
W. White, Inexco Oil Company, Pan American Petroleum
Corporation, Amoco Production Company, Love Petroleum
Company, James M. White and T. Carleton Billups.
All parties to the pre-trial order agreed that all exhib-
its introduced by the plaintiff and Peter K. Smith, would
be applicable to the case for the plaintiff, Dorotea Zaldivar
V. De Tenorio; cross-defendant, W. Baldwin Lloyd; and
defendants Peter K. Smith, Guardian of Elbert John Mc-
Gowan, James Patrick McGowan, and Louis Harold Mc-
Gowan; Corsair Petroleum Corporation; Paul M. Neville,
individually and as trustee; W. C. Falkenheimer, J. Logan
Sewall, James F. Conn and Alice B. Scoggins.
The parties agreed that all exhibits introduced by
defendant, H. E. McGowan, would be applicable to his
case and also to other defendants, namely, Hazel Draughon
McGowan; Charles B. McGowan; Louise McGowan Han-
nah; M. M. McGowan; B. C. Burns, Sr; H. D. Burns,
Sr; Blanche N. White; Inexco Oil Company; Pan American
Petroleum Corporation; Amoco Production Company; Love
Petroleum Company; James W. White; and T. Carleton
Billups.
Plaintiff, Dorotea Zaldivar V. De Tenorio, appeared
and testified. She spoke no English and testified through
a Spanish interpreter. She stated that she was born in
1905 in the Republic of Honduras and has remained a
Honduran citizen. Her parents, Phillipe Murillo and Per-
fecta Zaldivar died many years ago. She went to school
through the fifth grade in the small town of Trisagio,
close to Puerto Cortes, Honduras. Obdulia was her older
sister by two years and died in 1969 in Puerto Cortes.
She and Obdulia lived together for many years both before
and after the death of E. J. McGowan. The witness first
A9
met E. J. McGowan in Guanchia, Honduras, prior to his
marriage to Obdulia. The witness often visited them by
train. She stated that E. J. McGowan married her sister
in 1940 in Costa Rica. Obdulia was then 37 years of
age. After E. J.’s death in Panama, Obdulia returned
to Honduras and lived with the witness until her death.
During this time the sisters saw and talked with each
other every day. They knew nothing of the United States
or E. J.’s life in the State of Mississippi, or that he owned
property there. Obdulia spoke very little English. She
and her husband conversed in Spanish which he spoke
very well. The witness said she never heard. them dis-
cuss with each other his property in Mississippi. Nor
did she or her sister know anything of the treaty between
the United States and Honduras. On cross-examination,
the witness said she first learned of her interest in the
tract involved herein about four years prior to the trial
date, being about two years after her sister’s death, when
she was visited by some people from the United States.
She had a snapshot in her purse, and identified it with
a man in the courtroom whose name she did not know.
She also identified her brother, Felipe Murillo Zaldivar,
in the picture, and stated that he is now residing in Guate-
mala. She recognized her signature on the oil and gas
leases which she executed in favor of W. Baldwin Lloyd,
and said that her Louisiana attorney, an Honduran, inter-
preted and explained the leases to her.
As agreed in the pre-trial order filed in this cause,
plaintiff introduced as exhibits certified copies of the fol-
lowing: (1) United States Patent No. 470 from the United
States of America to Marmaduke Gardner; (2) warranty
deed from T. J. Evans to E. J. McGowan; (3) warranty
deed from J. W. McGowan to E. J. McGowan; (4) deed
of trust signed by E. J. McGowan, H. E. McGowan and
Al0
J. W. McGowan, dated December 18, 1915, in which E.
J. McGowan was recognized as the owner of the tract
involved herein; (5) a mineral lease to J. E. Toney, Trus-
tee, dated December 26, 1939, a purportedly signed by
E. J. McGowan; (6) “Report of the Death of an American
Citizen,” reflecting that a copy was sent to Obdulia Mc-
Gowan, Calle 5, Casa 6226, Juan Diaz, Panama, as wife
of the deceased, and to H. E. McGowan, Vosburg, Missis-
sippi, brother of the deceased; (7) original Passports—
E. J. McGowan, U.S.A. No. 452298-1927 and U.S.A. No.
1061-1945; (8) original Passport—Obdulia C. de McGowan,
Honduras, No. 12980-1951; (9) an original Oil, Gas and
Mineral Lease, dated February 1, 1971, from Dorotea Zal-
divar V. De Tenorio to W. Baldwin Lloyd; (10) an original
Oil, Gas and Mineral Lease, dated March 20, 1971, from
Dorotea Zaldivar V. De Tenorio to W. Baldwin Lloyd;
(11) Treaty between the United States and Honduras;
(12) Tax Assessment and Tax Receipt Information from
1909 through 1971 pertaining to the 37 acre tract; (13)
Specimen tax receipts pertaining to the 37 acre tract;
(14) Intestate succession proceedings of John Elbert Mc-
Gowan in Spanish with an English translation; (15) that
part of the complaint in H. E. McGowan v. Charles B.
McGowan, et al., No. 7852 on the docket of the Chancery
Court of Clarke County, Mississippi, deemed by plaintiffs
to be an admission against interests. Defendants, having
objected to the admission of a portion of the complaint,
were allowed to introduce the entire record in said cause.
By agreement of the parties, Peter K. Smith, guardian,
was permitted to introduce as exhibits certified copies
of the following: (1) Decree Appointing Guardian in
Cause Nos. 8315, 8316, and 8317, respectively, as docketed
in the Chancery Court of Clarke County, Mississippi; (2)
Decree Authorizing Guardian to Execute Oil, Gas and Min-
Ail
eral Lease in each of the above numbered cases; (3) an
Oil, Gas and Mineral Lease, dated February 16, 1971, by
Peter K. Smith on behalf of each minor ward, to Corsair
Petroleum Corporation; (4) Assignment of Overriding Roy-
alty Interest, dated February 25, 1971, by Corsair Petro-
leum Corporation, to Paul M. Neville; (5) Assignment
of Overriding Royalty Interest, dated April 13, 1971, by
Corsair Petroleum Corporation to W. C. Falkenheimer;
(6) Assignment of Overriding Royalty Interest, dated Feb-
ruary 22, 1971, by Corsair Petroleum Corporation to J.
Logan Sewell; (7) Assignment of Overriding Royalty In-
terest, dated June 8, 1971, by Corsair Petroleum Corpora-
tidn to James E. Conn; (8) Assignment of Overriding Roy-
alty Interest, dated July 13, 1971, by Corsair Petroleum
Corporation to Alice B. Scroggins; and (9) a quit claim
deed dated May 3, 1971, from Felipe Murillo Zaldivar
to Elbert John McGowan, James Patrick McGowan and
Louis Harold McGowan.
At the conclusion of plaintiffs’ case, the defendants
moved to exclude the evidence and direct a verdict for
the defendants on the grounds that plaintiffs failed to
prove that the treaty between the United States and Hon-
duras should be coiistrued favorably to the non-resident
alien plaintiff, and that plaintiffs had failed to overcome
the affirmative defenses of the defendant contending that
H. E. McGowan acquired the fee simple title to the 37
acre tract involved by virtue of the Clarke County con-
firmation of title suit based on more than ten years’ adverse
possession. The Court overruled the motion.
Defendants introduced into evidence certified copies
of (1) a Panamanian Certificate pertaining to the Succes-
sion of Elbert John McGowan, Intestate, together with
an English translation, for the purpose of showing that
the Mississippi property was not included in the deceased’s
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estate; (2) an assignment, signed by J. D. Haynes, C.
B. Brashier, H. E. McGowan, W. L. Bounds, and J. E.
Toney, Sr., Trustee, on September 10, 1941, assigning “‘vari-
ous gas and oil leases covering certain acreage owned
by divers persons in Clarke County” to J. E. Toney, Sr.;
and (3) the entire court file in H. E. McGowan v. Charles
B. McGowan, et al., No. 7852, in the Chancery Court of
Clarke County, Mississippi. Defendants also introduced
into evidence, without objection, the depositions of Henry
Ernest Culbreth, W. B. Holland, C. L. Sanders and Hayden |
Henson, long-time neighbors and friends of defendant, H.
E. McGowan, who testified as to H. E. McGowan’s manage-
ment of the McGowan properties. Defendants offered into
evidence the deposition of Judge M. M. McGowan, brother
of H. E. McGowan, defendant. The deposition was objected
to by plaintiffs and was marked for identification only,
the objection being that M. M. McGowan was incompetent
to testify against the interests of either E. J. McGowan,
deceased, or Maria Obdulia Zaldivar McGowan, deceased,
under Section 1690 of the Mississippi Code, commonly
referred to as the “dead man’s statute.” M. M. McGowan
has filed a disclaimer in this action avowing that he has
no claim or interest in the 37 acre tract.
Defendants’ only live witness was Mrs. C. L. Lightsey,
daughter of defendant H. E. McGowan. She stated that
he was ill at the time of the trial and unable to testify.
Until her marriage, she lived with her parents, defendant
H. E. McGowan and wife, on their Vosburg, Mississippi,
farm, formerly owned by her grandfather, J. W. McGowan.
She knew and was familiar with H. E. McGowan’s brothers
and sisters, except for E. J. McGowan, whom she saw
one time in her life when he visited the Mississippi farm
for a short time in 1936 on the death of J. W. McGowan.
She is familiar with the land involved in this suit saying
it was a quarter of a mile from her father’s home. She
Al3
stated her father, for many years, had claimed this land
and farmed it, and that, when E. J. McGowan left Missis-
sippi in 1936, he told her father he would never be back.
She stated that he did not return, and her first knowledge
of him thereafter was when her father received the notice
of his death from the American Consulate in Panama.
As to a mineral lease, introduced into evidence as Plaintiffs’
Exhibit 5, to J. E. Toney, Trustee, dated December 26,
1939, purportedly signed by E. J. McGowan, witnessed
by H. E. McGowan and one G. W. Mason, and acknowl-
edged before the Chancery Clerk of Clarke County, she
stated that E, J. McGowan was not in Mississippi in 1939."
She did acknowledge that her father bought and sold oil
leases for as long as she could remember, and had worked
up a block of leases for Mr. Toney for which her father
was paid ten cents an acre. The witness stated that for
twenty years she had handled the payment of taxes for
her father on his farm properties, including the two sepa-
rate pieces composing the 37 acre tract. She admitted
that the 27 acres acquired by E. J. McGowan from T. J.
Evans in 1911 was assessed to E. J. McGowan in 1913,
and continued to be assessed to E. J. McGowan until 1958,
when it was assessed to E. J. McGowan Estate, and that
in 1969 the assessment was changed to H. E. McGowan,
her father, as the result of the state court confirmation
suit. Although Plaintiffs’ Exhibit 12, being a list of these
assessments, reflects that the assessed owner paid the taxes,
the witness said that the taxes had actually been paid
by her father, and that in 1957 or 1958, she personally
requested the Sheriff to change the assessment to her
father. He refused. The remaining 10 acres, which E. J.
3. By stipulation, the parties agreed that at the time this
lease was recorded, the Chancery Clerk’s office had no photostatic
equipment, and that all handwriting in an instrument for recorda-
tion was in the handwriting of the Clerk.
Al4
McGowan acquired from his father, J. W. McGowan, are
shown by Plaintiffs’ Exhibit 12 to have been assessed
to E. J. McGowan from 1913 to 1918; from 1921 to 1941
assessed to J. W. McGowan; and from 1942 to 1971 assessed
to J. W. McGowan Estate. The exhibit does not reflect
that this assessment has ever been changed to H. E. Mc-
Gowan. It does reflect that the taxes in 1957 and 1958
and from 1964 to 1971 have been paid by H. E. McGowan,
which the witness said she paid in her father’s name.
On cross-examination, the witness stated that from the
time of the death of her grandfather, J. W. McGowan,
in 1936, her father, H. E. McGowan, has managed the
family properties, including his own property, the home
place which he acquired from J. W. MeGowan, and includ-
ing the 37 acres owned by E. J. McGowan; that her father
farmed on the land through tenants and treated all as
one farm unit. She admitted that her father had never
remunerated any moneys to E. J. McGowan for the use
of the 37 acres, but that neither had E. J. McGowan ever
paid a dime on the taxes.
The four neighbors of H. E. McGowan, whose deposi-
tions were taken by the defendants, testified generally
that each had known the McGowan family for many years;
that E. J. McGowan, after going to Central America in
1911, had returned to the United States, no more than
twice, the last time being in 1936 when his father died;
that H. E. McGowan had farmed all the McGowan proper-
ties as one unit, including the 37 acre tract involved herein,
and had maintained same under fence. They were not
familiar with the record title, nor the manner in which
the taxes were assessed or paid.
CONCLUSIONS
There are three basic issues in this case. Plaintiffs
contend (1) that E. J. McGowan’s title was not lost by
Ald
the claimed adverse possession of H. E. McGowan; (2)
that, in the absence of state court process to E. J. Mc-
Gowan’s widow, her heirs are not barred by the state
court condernnation suit; and (3) a liberal interpretation
of the Treaty between the United States and the Republic
of Honduras does not require a forfeiture of the widow’s
interest by her failure to seli her interest prior to her
death in 1969. The defendants contest each of these as-
sertions, and, in their pleadings, additionally asserted a
parol gift of the property from E. J. McGowan to H.
E. McGowan in 1936 and claimed that the non-resident
aliens are precluded from acquiring title to land in Missis-
sippi by state statute. As to the latter claim, this Court,
in an opinion by Judge Walter L. Nixon, Jr., dated Novem-
ber 10, 1971, pointed out that treaty provisions which would
produce different or conflicting results will prevail over
local or state law. As to the claim of a parol gift, this
Court finds that defendant, H. E. McGowan, wholly failed
to overcome the burden of establishing such a gift by
clear and convincing proof, much less by judicial determi-
nation until his confirmation suit. Aside from such allega-
tion in his state court confirmation suit, this record is
silent as to any evidence of such a gift. To the contrary,
the signature of E. J. McGowan, witnessed by H. E. Mc-
Gowan, on the 1939 mineral lease to J. E. Toney, Trustee,
whether genuine or a forgery, belies the claim that the
property was then owned by H. E. McGowan under any
kind of title.
In his state court confirmation suit, H. E. McGowan
averred, in part as follows:
“Your Complainant would show that since the pur-
chase of the land by the said E. J. McGowan from
his uncle, T. J. Evans, in 1911 that he, your Com-
plainant, has had the exclusive control, use, occupation
Al6
and management of the said land. That he farmed
it each and every year, and never at any time attorned
to his brother or paid him anything for the use thereof;
neither was the same expected or required of him.
Complainant further says that he paid all ad
valorem taxes upon the land and has paid the same
since his brother purchased the land in 1911 when
he was away from home working on the Panama Canal,
as aforesaid. Thus, for fifty-seven years between 191]
and this date Complainant has paid all the taxes and
had exclusive use of the same, farming, tilling or rent-
ing the same out for the purpose of farming and tilling
at all times. However, Complainant admits that he
was, between 1911 and 1936, performing all of these
duties without claiming title to the land as a favor
to his brother and for the use of the said lands.
Complainant would show that since the year 1936,
a period of thirty-two years heretofore, he has been
in the actual, exclusive, continuous, uninterrupted, ad-
verse possession of said lands, claiming the same as
his own, and each year keeping the land fenced and
either farming it himself or through tenants, all of
whom attorned to him, your Complainant. Your Com-
plainant therefore claims and owns the land as his
very own and has, as aforesaid, been in the open,
notorious, continuous, exclusive, uninterrupted and
hostile possession thereof as against the said E. J.
McGowan or any unknown heirs who might claim
through him.”
The testimony and admissions of facts received in
this case show conclusively that H. E. McGowan’s manage-
ment of the E. J. McGowan property was in the same
manner as he managed his own from 1911 to 1968, the
date of the confirmation suit. Nothing occurred to change
Al7
his fiduciary relationship to his brother until possibly the
death of his brother in 1957 when, as H. E. McGowan
alleged in his state court suit, he believed that his brother
was not lawfully married despite having received consular
notice of his brother’s death with the widow’s name and
address appearing thereon. Certainly when one enters
into possession of land with the permissive agreement of
the record owner, the presumption is that the possession
continues to be permissive and not hostile. Adverse pos-
session entirely excludes the idea of a holding under the
true owner. It is elementary that adverse possession can-
not be permissive. Conversely, permissive possession can-
not be adverse. As stated above, there is nothing in this
record to change the admission of H. E. McGowan’s permis-
sive use and possession up to 1936 to that of adverse
and hostile at least until 1957 when he received notice
of his brother’s death, if then. The possession necessary
must be actual, open, adverse and hostile, as well as incon-
sistent with the existence of title in another. See 3 Am.
Jur.2d, “Adverse Possession”, Sec. 3, p. 83. See also
Sec. 49, Ibid, wherein it is stated that permissive occupa-
tion of a family estate by one of the family is so usual,
that acts of occupation thereof to show hostile possession
as to strangers are not sufficient as to relatives, and in
Sec. 147, Ibid, wherein it is stated that the existence of
a family relationship between the parties will prevent
or rebut a presumption of adverse holding.
As to plaintiffs’ second claim, they contend that the
default decree taken in H. E. McGowan’s confirmation
suit filed in 1968 based on a claim of adverse possession
from 1936, the year E. J. McGowan returned to Central
America, up to the time the suit was filed, was ineffective
as to Maria Obdulia Zaldivar McGowan for lack of due
process of law guaranteed by the Fifth and Fourteenth
Amendments, citing, among other cases Robinson v. Hanra-
Al8
han, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47. This Court
agrees, Other than process had on named defendants,
with their addresses given, which did not include Maria
Obdulia McGowan, the remaining process was had by pub-
lication only, addressed to: ‘The unknown heirs, devisees
and executors, if any, of E. J. McGowan, deceased, whose
where abouts, places of residence, and post office addresses
are unknown.” This publication appeared once a week
for three consecutive weeks in The Clarke County Tribune,
a newspaper published in the town of Quitman, Clarke
County, Mississippi. In Magnolia Textiles v. Gillis, 206
Miss. 797, 41 So.2d 6, the Mississippi Supreme Court cited
with approval the general rule that all persons who are
materially interested in the event or subject matter, with-
out whom no effective judgment or decree can be rendered,
should be made parties in a suit to quiet title, and quoted
from Griffith’s Mississippi Chancery Practice, Sec. 115
thusly: “In suits to cancel clouds the complainant . . . may
proceed against those of his own choosing, subject to the
requirement, of course, that when he chooses to attack
a particular cloud or claim of title he should join all
those interested in that specific and particular claim .. .”.
In Warren v. Clark, 230 Miss. 873, 94 So.2d 323, the Court
reversed a lower court’s decision for the complainant where
the complainant failed to deraign title from a common
source to necessary parties and did not allege that he
had joined all parties interested in the land so far as
they were known to him and could be ascertained by
diligent inquiry, and where owners of one of the tracts
involved purchased from a common source and had not
been made parties to the suit. It is unfortunate here
that H. E. McGowan believed his brother to be unmarried,
and, although he had been informed of the widow’s name
and Panama address, made no effort to locate her, or
have process directed to her by name at her last known
Ald
address. On the basis of the above stated facts and law,
this Court finds that Maria Obdulia Zaldivar McGowan,
living at the time of this suit and decree entered therein,
was deprived of her right to due process and tlLat the
confirmation suit decree was ineffective as to her and
her legal heirs. This finding and conclusion is based,
of course, on the further finding that their rights were
not cut off by the hereinafter discussed treaty.
Article I of the Treaty between the United States
and Honduras contains in part the following:
“The nationals of each High Contracting Party shall
enjoy freedom of access to the courts of justice of
the other on conforming to the local laws, as well
for the prosecution as for the defense of their rights,
and in all degrees of jurisdiction established by law.
“The nationals of each High Contracting Party shall
receive within the territories of the other, upon sub-
mitting to conditions imposed upon its nationals, the
most constant protection and security for their persons
and property, and shall enjoy in this respect that
degree of protection that is required by international
law. Their property shall not be taken without due
process of law and without payment of just compensa-
tion. (Emphasis Added).”
Plaintiff relies heavily on a liberal construction of
the emphasized portions as well as the emphasized portion
of Article IV which is as follows:
“Where, on the death of any person holding real
or other immovable property or interests therein with-
in the territories of one High Contracting Party, such
property or interests therein would, by the laws of
the country or by a testamentary disposition, descend
or pass to a national of the other High Contracting
A20
Party, whether resident or non-resident, were he not
disqualified by the laws of the country where such
property or interests therein is or are situated, such
national shall be allowed a term of three years in
which to sell the same, this term to be reasonably
prolonged if circumstances render it necessary. . . .”
(Emphasis Added).
Section 842 of the Mississippi Code of 1942 holds in
part that non-resident aliens shall not hereafter acquire
or hold land, and that all land held or acquired contrary
to the statute shall escheat to the state. Aside from the
Statute, it is clear that under the common law of Missis-
sippi a non-resident alien could not inherit lands from
a resident citizen. See Scottish American Mortgage Co.
v. Butler, 99 Miss. 56, 54 So. 666. An alien could take
title by grant or devise, but not by descent. The statute
further limits the rights of aliens, providing that they
cannot acquire lands by any means, such as purchase or
grant. Two exceptions to the statute for the benefit of
aliens who are citizens of Syria or the Lebanese Republic
are not involved herein. It is also clear that where there
is a conflict between a treaty and the provisions of a
state constitution or of a state statute, the treaty controls.
As well as its statute, the provisions of the common law
of the state may be suspended during the existence of
a treaty inconsistent therewith. See 52 Am.Jur., “Trea-
ties’, Sec. 18, p. 816. Also see Clark v. Allen, 331 U.S.
503, 67 S.Ct. 1431, 91 L.Ed. 1633, which considered language
in a treaty with Germany identical to that here with
Honduras, Also in 52 Am.Jur., “Treaties”, Sec. 22, p.
819 it is said that while in force treaties are the supreme
law of the land for like statutes so they are declared
by the United States Constitution. “They are to be ex-
ecuted in the utmost good faith, with a view to making
_—
A2l
effective the purposes of the contracting parties.” Ibid,
at page 823, it is further said: “In the solemn treaties
between nations it never can be presumed that either state
intends to provide the means of perpetrating or protecting
frauds, but all provisions are to be construed as intended
to be applied to bona fide transactions, Treaties should be
so construed as to uphold the sanctity of public faith.” And
again in the same authority, at page 825: “Liberality is
one of the foremost of the rules of treaty interpretation.
Indeed, treaties are construed more liberally than private
agreements. It is the general rule of construction with
respect to treaties that they shall be liberally construed
so as to carry out the intention and purpose of the parties.
Accordingly, where a treaty admits of two constructions,
one restrictive of rights that may be claimed under it and
the other favorable to them, the latter is to be preferred.”
It is clear under the treaty involved herein that Maria
Obdulia Zaldivar McGowan had the right to acquire realty
in Mississippi by inheritance, notwithstanding the common
law and statute of Mississippi to the contrary. It is not
so clear that her next of kin were entitled to acquire this
same inheritance when she died intestate. As to this point,
in the absence of specific language in the treaty providing
for this eventuality, the Court is inclined to construe the
treaty liberally and hold that such heirs are entitled to the
same protection under the treaty as their deceased kins-
woman would have had. Nor does this Court have much
judicial precedent to aid in determining under what cir-
cumstances the three year period for selling the property
should be reasonably prolonged. The Court has, however,
carefully weighed all of the circumstances and finds that
the interest of E. J. McGowan’s widow could not be di-
vested from her in the absence of due process of law and
without just compensation, both of which are guaranteed
by the treaty. Otherwise is to declare a forfeiture which
A22
is not favored in law. Maria Obdulia Zaldivar McGowan
had no knowledge of the provisions of the treaty or
any knowledge of her inheritance or the attempted di-
vestiture. Similarly, her heirs, plaintiff and Felipe Murillo
Zaldivar, had no knowledge, Until they were made aware
of their interest, the circumstances were such as to require
a prolongation of the three year period in which to divest
themselves of their inherited interests. The brother, Felipe
Murillo Zaldivar, has within a necessarily prolonged term
divested himself in favor of the minor wards of Peter K.
Smith, at one time in this action alleged to be the grandsons
of EF. J. Me’ wan. The named plaintiff, Dorotea Zaldivar
V. De Ten filed this suit within a reasonable time of
her know © -e.
The Court therefore finds that the named _ plaintiff,
a resident citizen of Puerto Cortes, Honduras, is entitled
to a one-half undivided interest in and to the 37 acre
tract of land, more particularly described in the early part
of this opinion, subject to mineral leases executed in favor
of W. Baldwin Lloyd, as recorded in the records of the
Chancery Clerk of Clarke County, Mississippi; and that
the minor grantees of Felipe Murillo Zaldivar, wards of
Peter K. Smith, Guardian, are entitled to and vested with
the remaining one-half interest, subject to mineral leases
they have conveyed, also of record in Clarke County.
The Court reserves for a later hearing the matter of
an accounting of funds due the respective holders of oil
and gas leases and royalty interests, and for further relief.
An appropriate order may be submitted, costs of court
to be taxed equally between the two groups of opposing
parties. The order may further provide, in the event of
appeal, that this opinion and the order rendered thereon
are final for purposes of appeal, further conditioned upon
the giving of a suitable supersedeas bond by the appealing
party or parties,
A23
APPENDIX B
Dorotea Zaldivar V. DE TENORIO,
Plaintiff-Appellee,
Vv.
H. E. McGOWAN et al.,
Defendants-Appellants.
No. 74-1082.
United States Court of Appeals,
Fifth Circuit,
March 19, 1975.
Citizen of Republic of Honduras brought action against
Mississippi residents to confirm title and interest in 37
acres of land in Mississippi which she allegedly had in-
herited from her deceased sister, who in turn allegedly
had inherited from her deceased husband, a United States
citizen. The United States District Court for the Southern
District of Mississippi, Dan M. Russell, Jr., Chief Judge,
rendered judgment for the Honduran citizen, 364 F.Supp.
1051, and defendants appealed. The Court of Appeals,
Coleman, Circuit Judge, held that under the 1928 treaty
with Honduras, where the Honduran widow of the United
States citizen property owner had failed to sell the in-
herited property within three years of husband’s death,
she had been represented by counsel during closing of her
husband’s affairs and, for 12 years after husband’s death,
she made no inquiry nor took any action to sell land,
widow was deprived of any interest in the land; and that
where defendant, who was widow’s husband’s brother, did
not know of existence of widow until husband’s death, and
after husband’s death, widow was vested with title to land
A24
which her husband had formerly owned with sole power
of disposition, subject to defeasance only in event of her
failure to comply with terms of treaty, and defendant’s in-
terest was a vested remainder in the land, the interest of
widow and defendant were mutually hostile, and thus de-
fendant had no fiduciary duty to notify widow of her obli-
gation to sell property within three years or lose her inter-
est, particularly where defendant had no knowledge of
treaty provisions,
Reversed and remanded.
Godbold, Circuit Judge, dissented and filed opinion.
1. Treaties (Key) 11
State statutory provision yields to any applicable pro-
vision of any valid treaty of United States with foreign
country, since treaties constitute part of supreme law of
the land. U.S.C.A.Const. art. 6, cl. 2.
2. Treaties (Key) 8
Provision of 1928 Treaty with Honduras that property
of citizens of signatory should not be taken by other signa-
tory without due process of law and without payment
of just compensation refers to takings by respective sig-
nators from citizens of the other, and does not deprive
courts of signators of jurisdiction to adjudicate property
rights within their respective territories. Treaty with Hon-
duras, art. 1, 45 Stat. 2618.
3. Constitutional Law (Key) 278(1)
Under 1928 Treaty with Honduras, where Honduran
widow of United States citizen who owned property in
Mississippi had failed to sell inherited property within
three years of husband’s death, fact that Treaty would
operate to deprive widow of interest in property absent
A25
showing of circumstances making it necessary to extend
time for sale did not deprive widow of due process. Treaty
with Honduras, art. 1, 45 Stat. 2618; U.S.C.A.Const. Amends.
5, 14.
4. Treaties (Key) 8
“Circumstances rendering the action unnecessary,” in
purview of provision of 1928 Treaty with Honduras where-
by citizen of signatory who inherits real or other immov-
able property in other signatory has term of three years
in which to sell property unless circumstances render it
necessary to prolong term for reasonable period, means
circumstances existing during three-year period, such as
inability to satisfactorily clear title, inability to sell for
fair market value, willful frustration of effort to sell, or
like events. Treaty with Honduras, art. 4, 45 Stat. 2618.
5. Records (Key) 19
Under Mississippi law, once deed of conveyance is
lodged with proper officer for public record in county
where land is located, it is from that moment construc-
tive notice to the world.
6. Treaties (Key) 8
Under 1928 Treaty with Honduras, where Honduran
widow of United States citizen who owned property in
Mississippi had failed to sell inherited property within
three years of husband’s death, she had been represented
by counsel during closing of her husband’s affairs in Hon-
duras, and, in 12-year period from husband’s death to
her own death, widow made no inquiry nor took any
action to sell land, there were no circumstances necessitat-
ing prolongation of the three-year period and widow, after
the three years, had no interest in the land. Treaty with
Honduras, art. 4, 45 Stat. 2618.
A26
7. Trusts (Key) 102(1)
Where, by operation of 1928 Treaty with Honduras,
Honduran widow of United States citizen who owned prop-
erty in Mississippi was vested with title to land which
her husband had formerly owned with sole power of dis-
position subject to defeasance only in event of her failure
to sell land within three years, and husband’s brother,
a Mississippi resident, had vested remainder, brother did
not know of existence of widow until husband's death,
and brother had no knowledge of provisions of Treaty,
brother had no fiduciary duty to widow to advise her as to
the existence of the land or the provisions of Treaty.
Treaty with Honduras, art. 4, 45 Stat. 2618.
8. Trusts (Key) 30%(2)
Where brother of Mississippi landowner who moved
to Central America had used land for some 20 years with
landowner’s permission, use did not create trust for benefit
of landowner’s widow who inherited land from landowner,
but who, under 1928 Treaty with Honduras, lost interest
in property by failing to sell it within three years of land-
owner’s death. Treaty with Honduras, art. 4, 45 Stat. 2618.
9. Landlord and Tenant (Key) 118(1), 119(1)
Where brother of Mississippi landowner who moved
to Central America used land uninterruptedly for some
20 years without objection by landowner, and brother ac-
knowledged landowner’s ownership of land in number of
ways, including, failing to ask that tax assessment be
changed to him as owner, and subscribing as witness to
oil and gas lease purportedly executed by landowner,
brother was mere tenant at will or sufferance.
10. Aliens (Key) 9
Under Mississippi law, real property could not be in-
herited by Central American aliens. Code Miss.1942, § 842.
A27
11. Constitutional Law (Key) 210
Resident aliens who are lawfully in United States are
entitled to equal protection of the law. U.S.C.A Const.
Amend. 14.
12. Constitutional Law (Key) 210
Fourteenth Amendment has no application to aliens
not within jurisdiction of United States. U.S.C.A.Const.
Amend. 14.
13. Desceni and Distribution (Key) 8
-Escheat (Key) 3
Under Mississippi law, where Honduran widow of
United States citizen who owned property in Mississippi
failed to sell inherited property within three years of hus-
band’s death, and thereby lost interest in property by
operation of 1928 Treaty with Honduras, property passed
to nearest nonalien heir and did not escheat to state. Code
Miss.1972, §§ 89-1-23, 89-11-1, 91-1-3; Treaty with Honduras,
art. 4, 45 Stat. 2618.
14. Forfeitures (Key) 1
One found to be without title to land is not victim of
forfeiture since he had nothing to forfeit.
Tally D. Riddell, Quitman, Miss., for McGowan et al.
Jack H. Ewing, Jackson, Miss., for Love Pet. Co., et al.
Herbert R. Ginsberg, Hattiesburg, Miss., for J. L. Sell-
ers and W. Fairchild.
Paul M. Neville, Meridian, Miss., for Smith and Corsair
Pet.
Thomas H. Watkins, Jackson, Miss., for Cecil Barnett.
A28
Vardaman S. Dunn, Jackson, Miss., David A. Kattan,
New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the
Southern District of Mississippi.
Before COLEMAN, GODBOLD and RONEY, Circuit
Judges.
COLEMAN, Circuit Judge.
This is an appeal by Hamilton E. McGowan, the de-
fendant below, and a brother of Elbert J. McGowan, de-
ceased, from a judgment vesting an undivided one-half
interest in thirty-seven acres of land in Clarke County,
Mississippi in Dorotea Zaldiver V. De Tenorio, a non-
resident alien, De Tenorio v. McGowan, 364 F.Supp. 1051
(S.D. Miss., 1973). Appellee De Tenorio claims the land
by inheritance from her deceased sister, who, in turn,
allegedly inherited the land from her deceased husband,
Elbert J. McGowan. Both appellee and her deceased sister
had been and were resident citizens of the Republic of
Honduras.
Appellant argues that the widow lost her interest in
the land by failing to comply with the requirements of
a 1928 Treaty between the United States and the Republic
of Honduras. He asks that title be confirmed in the de-
fendants-cross-complainants.
We reverse and remand.
FACTS
in 1911, by deed of conveyance, Elbert J. McGowan
became the owner of twenty-seven acres of land in Clarke
County, Mississippi. In 1915 he acquired, by deed, ten
additional acres. These parcels constitute the thirty-seven
acres here in question.
A29
Both deeds were properly recorded in the land deed
records of Clarke County, Mississippi, on December 20,
1915. The District Court found that these conveyances
vested E. J. McGowan with the fee simple record title
to this land.
Between 1911 and 1914 E. J. McGowan left Mississippi
and returned only twice, the last time in 1936. This was
the last contact any member of the family is known to
have had with him during his lifetime.
After leaving Mississippi, E. J. McGowan returned
to Central America, where, in 1940, he married Maria
Obdulia Zaldivar, of Honduran nationality. Although
there originally were claims to the contrary, abandoned
during the course of this litigation, no children were born
of this union. E. J. McGowan remained a United States
citizen, but died intestate on October 31, 1957, in the Re-
public of Panama.
Hamilton E. McGowan, of Vossburg, Mississippi, was
a brother of Elbert J. McGowan. Elbert’s United States
passport designated Hamilton McGowan as the person to
be notified in case of his death. In 1957, Hamilton was
so notified by the United States Consul in Panama. This
notification revealed that Elbert’s effects had been placed
in the hands of his widow, and listed other known relatives
as two brothers, Hamilton E. McGowan, of Vossburg, and
M. M. McGowan, of Jackson, Mississippi. After Elbert’s
death, no member of the family communicated with his
widow or undertook to advise her concerning any land
E. J. McGowan owned in the State of Mississippi. Neither
did she, or her counsel, communicate with the McGowans.
Silence reigned supreme on both sides.
In 1958, after the death of her husband, Maria Obdulia
Zaldivar McGowan left Panama, went back to Honduras,
A30
and lived there with her sister, the plaintiff-appellee here,
until her death. While thus residing in the Republic of
Honduras, Maria died intestate on February 28, 1969, with-
out being remarried or having any children. At no time
did she ever renounce her Honduran citizenship. She
was survived by one sister, appellee De Tenorio, and one
brother, Felipe. Maria’s other brothers and sisters were
of the half blood, and neither of her parents survived
her death.
It is undisputed that the taxes on the lands in ques-
tion were never paid by Elbert g. McGowan, but were
always paid by his brother, Hamilton E. McGowan. In
addition to paying the taxes, Hamilton E. McGowan used
the land, retained the profits, and acknowledged his broth-
er’s ownership of the land in a number of ways, such
as failing to have the tax assessment changed to him
as owner and by subscribing as a witness to an oil and
gas lease purportedly executed by E. J. McGowan in 1939.
In 1968, Hamilton E. McGowan filed suit in the Chan-
cery Court of Clarke County, Mississippi, asserting title
in himself by adverse possession and seeking confirmation
of his alleged title to the land. Elbert’s widow, Maria
Obdulia Zaldivar McGowan, was living at the time in
the Republic of Honduras, but she was not named as
a party to the suit, nor was she served with notice or
process. A decree was entered on the complaint by de-
fault. This decree was asserted by the defendants-appel-
lants in the District Court as res judicata. The Court
held that this decree was ineffective against Maria, Elbert
McGowan’s widow and appellee’s sister, for lack of due
process of law guaranteed by the Fifth and Fourteenth
Amendments to the Constitution of the United States, and
applicable under the terms of the Treaty between the
United States and Honduras. This holding is not chal-
A3l
lenged on appeal. The District Court further held that
Maria Obdulia Zaldivar McGowan’s interest in the land
formerly owned by her husband, Elbert, could not be di-
vested from her in the absence of due process of law
and without just compensation. It concluded by a “liberal
interpretation” of the Treaty that Maria’s heir, Dorotea,
was entitled to the same protection.
THE LAW
The applicable Mississippi statute, Section 842 of the
Code of 1942 [now Section 89-1-23 of the Code of 1972,
which goes back to Section 2439 of the Mississippi Code
of 1892] provides: -
aw!
“Resident aliens may acquire and hold land, and
may dispose of it and transmit it by descent, as citizens
of the state may;
but non-resident aliens shall not hereafter acquire or
hold land * * *.”
[1] This statutory provision yields, of course, to
any applicable provision of any valid Treaty of the United
States with a foreign country, constituting a part of the
Supreme Law of the Land, United States Constitution,
Article 6, Clause 2, Hauenstein v. Lynham, 100 U.S. 483,
25 L.Ed. 628 (1879); Clark v. Allen, 331 U.S. 503, 67 S.Ct.
1431, 91 L.Ed. 1633 (1947).
The pertinent portions of the 1928 Treaty with Hon-
duras read as follows:
“(From] Article I
“The nationals of each High Contracting Party
shall enjoy freedom of access to the courts of justice
of the other on conforming to the local laws, as well
for the prosecution as for the defense of their rights,
and in all degrees of jurisdiction established by law.
A32
“The nationals of each High Contracting Party
shall receive within the territories of the other, upon
submitting to conditions imposed upon its nationals,
the most constant protection and security for their
persons and property, and shall enjoy in this respect
that degree of protection that is required by interna-
tional law. Their property shall not be taken without
due process of law and without payment of just com-
pensation.
“Article IV
“Where, on the death of any person holding real
or other immovable property or interests therein with-
in the territories of one High Contracting Party, and
such property or interests therein would, by the laws
of the country or by a testamentary disposition, de-
scend or pass to a national of the other High Contract-
ing Party, whether resident or non-resident, were he
not disqualified by the laws of the country where
such property or interests therein is or are situated,
such national shall be allowed a term of three years
in which to sell the same, this term to be reasonably
prolonged if circumstances render it necessary. . . .”
By the express provisions of the Treaty, McGowan’s
widow had until October 31, 1960, in which to sell the
thirty-seven acres of land in Clarke County. The term
for the exercise of that right might “be reasonably pro-
longed if circumstances render it necessary.” (emphasis
ours).
Prior to the cut off date, Mrs. McGowan took no
action to sell the property, nor did she do so during the
ensuing nine years. Indeed, although the record shows
that Mrs. McGowan, the widow, was represented by ‘coun-
A33
sel in closing her husband’s affairs she died without mak-
ing any inquiry or taking any action to sell the land.
The case, then, is reduced to whether under the Treaty
the sister was entitled to a “reasonable prolongation” of
the sale period, rendered necessary by the circumstances.
The District Court resolved the issue in the following
manner, 364 F.Supp. at 1062:
“It is clear under the treaty involved herein that
Maria Obdulia Zaldivar McGowan had the right to
acquire realty in Mississippi by inheritance, notwith-
standing the common law and statute of Mississippi
to the contrary. It is not so clear that her next of
kin were entitled to acquire this same inheritance
when she died intestate. As to this point, in the
absence of specific language in the treaty providing
for this eventuality, the Court is inclined to construe
the treaty liberally and hold that such heirs are en-
titled to the same protection under the treaty as their
deceased kinswoman would have had. Nor does this
Court have much judicial precedent to aid in determin-
ing under what circumstances the three year period
for selling the property should be reasonai-ly pro-
longed. The Court has, however, carefully weighed
all of the circumstances and finds that the interest
of E. J. McGowan’s widow could not be divested from
her in the absence of due process of law and without
just compensation, both of which are guaranteed by
the treaty. Otherwise is to declare a forfeiture which
is not favored in law. (emphasis added). Maria Ob-
dulia Zaldivar McGowan had no knowledge of the
provisions of the treaty or any knowledge of her in-
heritance or the attempted divestiture. Similarly, her
heirs, plaintiff and Felipe Murrillo Zaldivar, had no
knowledge. Until they were made aware of their
A34
interest, the circumstances were such as to require
a prolongation of the three year period in which to
divest themselves of their inherited interests. (empha-
sis added). The brother, Felipe Murrillo Zaldivar, has
within a necessarily prolonged term divested himself
in favor of the minor wards of Peter K. Smith, at
one time in this action alleged to be the grandsons
of E. J. McGowan. The named plaintiff, Dorotea Zal-
divar V. De Tenorio, filed this suit within a reasonable
time of her knowledge.
“The Court therefore finds that the named plain-
tiff, a resident citizen of Puerto Cortes, Honduras,
is entitled to a one-half undivided interest in and to
the 37 acre tract of land * * *.”
We construe the decision to stand for the proposition
that the three year limitation of the Treaty is inoperative
unless someone, somewhere, someway, gave Mrs. McGowan
actual notice of her ownership and warned her of the
Treaty limitation. At least, such was required to obviate
the element of “a reasonable prolongation” if “circum-
stances render it necessary”. The Treaty, of course, con-
tains no such command. The additional elements of the
decision are that she could not be deprived of her prop-
erty without “due process of law” and “reasonable compen-
sation”. The decision does not hold that Hamilton Mc-
Gowan’s status as a “fiduciary” required him to give actual
notice to the widow of his deceased brother. The laws
of Mississippi flatly provided that the Widow McGowan
could not inherit the land. The record is totally devoid
of the slightest suggestion that Hamilton McGowan had
ever heard of the Honduran Treaty of 1928.
Upon briefs and oral argument, our reaction to ques-
tions concerning “construction of the Treaty” is that mat-
A35
ters of construction arise only when the language of a
document is reasonably susceptible to more than one inter-
pretation. The District Court, and the parties, have fre-
quently alluded to paucity of precedent involving the
Treaty language involved in this litigation. A reasonable
explanation for this is that the language is quite plain
and clear, obviating the necessity for frequent or extensive
interpretation by the Courts.
[2] The language in the last sentence of the fourth
paragraph of Article J, reads, “Their property shall not
be taken without due process of law and without payment
of just compensation.” This obviously refers to one of
the contracting powers taking property from the citizen
of the other. This is so because private parties, personal
or corporate, have never had the right to take property
from another. Consequently, this limitation must be con-
strued as referring to takings by the respective signators
to the Treaty from citizens of the other. The litigation
now before us does not involve expropriation, eminent
domain, or any similar taking of property by governmental
action. Accordingly we are unable to see how the due
process feature enters this case except for Hamilton’s futile
suit to acquire title, in which he obviously failed to give
the notice required by Mississippi law. That failure may
be explained by his ignorance, and that of his counsel,
of the Honduran Treaty. Under state law, Mrs. McGowan
in Honduras was clearly not a party in interest.
[3] The Treaty nowhere hints or suggests that the
Courts of the respective sovereigns are to be deprived
of jurisdiction to adjudicate property rights within their
respective territories. An appropriate judicial deter-
mination of title takes no property; it simply adjudicates
where the title legally rests. This case deals with whether,
in fact and in law, the widow of the deceased McGowan,
A36
or her heirs, have any property interest in the thirty-
seven acres of land. Obviously, if within the terms of
the Treaty they had any property rights it was the duty
of the District Court to so hold. If there were none,
a similar duty existed. As to that, all the parties here
had their full day in Court and there was no denial of
due process. The due process argument, therefore, is irrel-
evant.
This remands us to the decisive factor in the case,
the application of the pertinent provisions of Article IV,
which, stripped of inapplicable le*\yuage, might appropri-
ately be defined as follows:
“Where, on the death of any person holding real
or other immovable property or interests therein with-
in the territories of one High Contracting Party,
* * * such national shall be allowed a term of
three years in which to sell the same, this term to
be reasonably prolonged if circumstances ,render it
necessary... .”
[4] We construe “circumstances rendering the action
necessary” to mean circumstances existing during the three
year period, such as an inability to satisfactorily clear
title, an inability to sell for fair market value, wilful frus-
tration of the effort to sell, and like events.
We have already pointed out that from October 31,
1957 until February 28, 1969—eleven years and four
months—Mrs. McGowan made no effort to take any action
whatever, by sale or otherwise, with reference to the prop-
erty inherited, with limitations, from her deceased hus-
band.
On what theory is it to be held, then, that this long
term of inaction, almost four times the primary term pre-
scribed by the Treaty, may at this late date be judicially
A37
prolonged as ‘‘a matter rendered necessary by the circum-
stances?”
The only reason advanced is that the Widow McGowan
did not know of the property owned by her husband,
did not know the rights conferred upon her by the Treaty,
and Hamilton McGowan failed to inform her of it, although,
as already stated, there is no proof that he, a layman
residing in Mississippi, had any knowledge of the Treaty.
It seems likely that Mrs. McGowan did not know
of the land, but the only proof to support this conclusion
is the testimony of her sister, the present claimant to
the property, who said that Mrs. McGowan never men-
tioned the existence of Mississippi or any property in it.’
Balanced against this is the fact that when her hus-
band died in Panama, there was an intestate succession
fadministration] in that jurisdiction, in which the widow
received all of her deceased husband’s property in that
jurisdiction, and was represented by counsel. Living with
1. “Q. [by claimant’s counsel]:
While the two of you were living together after Mr. Mc-
Gowan’s death, under the same roof, did Obdulia ever men-
tion to you anything about the United States or any property
in the United States?
“A. No.
“Q. Did she ever discuss with you or mention to you
anything about the State of Mississippi?
“A. No.
“Q. Did Obdulia speak any English at all?
“A. No, very little.
“Q. When you heard Obdulia talking with Mr. Mc-
Gowan in what language were they speaking?
“A. In Spanish. But he didn’t pronounce the language
very well.
“Q. Did you ever overhear any conversation or talk
between Obdulia and Mr. McGowan about any properties in
the United States?
“A. No.”
A38
her husband, an American, for eighteen years she is bound
to have known that her husband had a United States
passport, especially since the record indicates that she
had one also. In any event, the Consular report of his
death named her as his heir and named the two brothers
and their addresses in Vossburg and Jackson, Mississippi,
as surviving relatives. If the United States Consul ob-
tained this information from some source other than the
widow, who was the only person in Panama who could
have told him of it, she at least was put on notice of
it when she received as she did, a copy of the Consular
report.
Conceding, however, that the widow knew nothing
of the land owned by her husband the record leaves no
room for doubt that she knew he had brothers in Missis-
sippi and, if she was interested in the subject, that he
might have land there.
[5] This inexorably brings us to the uniformly fol-
lowed principle of Mississippi real property law that once
a deed of conveyance is lodged with the proper officer
for public record in the county where the land is located
it is, from that moment, constructive notice to the world,
Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344 (1959); Frier-
son Building Supply v. Pritchard, 253 Miss. 541, 176 So.2d
301 (1965). The public land records are open to anyone
who wishes to look. All her counsel had to do was make
inquiry.
[6] Represented by counsel, as she was, in an estate
which was formally administered in Panama, we must
hold that Mrs. McGowan’s failure over a period of nearly
twelve years to have the records examined, or to make
any inquiry whatever, although assisted by counsel, totally
negates the existence of circumstances necessitating a pro-
longation of the three year period in which she had the
clear right to sell this land and receive the proceeds.
A39
To hold otherwise would be to say that the Treaty
Makers intended that property rights within their respec-
tive jurisdiction may be left in limbo for so long as alien
owners choose not to make inquiry as to the possible
existence of title, open and available to the world. This
could not further, but would damage, the property rights
of the citizens of either jurisdiction, something they both
had a duty to protect and no doubt intended to protect.
We are not altogether without precedent in the cases
dealing with Treaty rights such as we now have before
us.
A case similar to the one at bar is Miller v. Clausen,
8 Cir., 1924, 299 F. 723, appeal dismissed 269 U.S. 595,
46 S.Ct. 105, 70 L.Ed. 431 (1925). In Miller, one Andrew
Hansen died in 1911 in the United States owning property
here, leaving as his sole heir at. law his father, Hans
Christian Hansen, who was a resident and citizen of Ger-
many. The United States had a Treaty with Germany
similar to the one here involved, but with nothing com-
parable to Article I in the Honduran Treaty. Hans
Christian Hansen, still in Germany, died in 1916. He
left as his heirs brothers, sisters, nephews, and nieces,
Only one of these heirs was a resident of the United
States, i.e., Catharina Clausen. Thus, five years after he
acquired an interest in the land from Andrew Hansen,
Hans died without having made any conveyance thereof.
In 1919 the Alien Property Custodian seized the prop-
erty. Catharina Clausen then filed a petition in the County
Court in Nebraska to have herself declared the sole heir
at law of Andrew Hansen and the Court so decreed. She
then brought an action in the United States District Court
against the Alien Property Custodian and the Treasurer
of the United States to require delivery to her of the
property. The other heirs of Hans Christian Hansen took
A40
the position that they acquired title as heirs of Hans
Christian Hansen. The Eighth Circuit held, however, that
the only person who could acquire property through An-
drew Hansen was Catharina Clausen, who acquired same
as a direct heir of Andrew Hansen and as the only one
who was a resident of the United States. The Court in so
holding used the following language:
“Therefore, on the death of Andrew Hansen, some-
thing less than a fee simple absolute, a base or quali-
fied fee or a terminable fee vested in Hans Christian
Hansen, and the remainder vested in Catharina
Clausen, and after a reasonable time had elapsed with-
out Hans Christian Hansen having availed himself of
the rights given him by the treaty, there was a failure
of the conditions imposed by the treaty, the title of
Hans Christian Hansen failed by operation of law,
the statute came into full force and effect, and the
full fee-simple title vested in Catharina Clausen.” 299
F., at 727.
Appellee De Tenorio distinguishes this holding by
pointing out that the Treaty involved in Miller did not
have a clause which prohibited the taking of property
without due process of law and without payment of just
compensation, as does Article I of the Treaty with Hon-
duras. We have already disposed of this argument, supra.
[7] It is urged that under the facts of this case
Hamilton McGowan was “fiduciary” to the widow of his
deceased brother. For reasons quickly to be stated we
hold that Hamilton was not a fiduciary to his former
sister-in-law.
Prior to October 31, 1957, the date of Elbert’s death,
such a relationship could not have arisen because Elbert
was the sole owner of the Clarke County property, acting
A4l
in his own right. Before Hamilton McGowan so much
as knew of the existence of a sister-in-law (which was
learned from the Consul’s death report), the relationship
had been dissolved when Elbert died childless, Wilbe Lum-
ber Company v. Calhoun, 163 Miss. 80, 140 So. 680 (1932).
Mrs. McGowan was an adult, not a lunatic, and personally
a total stranger to her former brother-in-law. Neither
before nor after October 31, 1957, did Hamilton McGowan
see Mrs. Elbert McGowan or have the first word of com-
munication with her, directly or indirectly, written or oral.
In this set of circumstances a fiduciary relationship was
totally nonexistent.
Neither did such a relationship arise from the conflict-
ing interests of Hamilton and Mrs. Elbert McGowan in
the title to the land. When Elbert drew his last breath
on October 31, 1957, the widow was vested with title to
the land which her husband had formerly owned, with
sole power of disposition, subject to defeasance only in
the event of her own failure to comply with the terms
of the Honduran Treaty. On the other hand, Hamilton’s
interest in the land was a vested remainder, which Mrs.
McGowan could defeat at pleasure by complying with
the Treaty. See Mississippi College v. May, 235 Miss.
200, 108 So.2d 703 (1959).
[8, 9] Consequently, Hamilton McGowan was neither
a tenant in common nor a joint tenant with his former
sister-in-law. His interest conflicted with hers to the
extent that he could only hope for title in fee if she
failed to exercise her right of disposition in compliance
with the Treaty. The fiduciary principles usually applica-
ble to such tenancies in common simply did not apply
here. In the total absence of an agreement to the contrary,
the hostility of Hamilton’s interest to that of his sister-
in-law was the antithesis of a fiduciary relationship. No
A42
law could require him to aid a total stranger to defeat
his own title.?
[10] Neither does the fiduciary argument attribute
proper significance to the indisputable fact that under
Mississippi }aw real property could not be inherited by
a Central American alien. If Hamilton McGowan acted
in reliance on the Mississippi statute prohibiting inheri-
tance of real property by aliens, and if he did not know
of the Honduran Treaty, then he was guilty of no inten-
tional dereliction for, in the absence of the Treaty, no
duty could have existed. The record in this case is totally
bare of any evidence of treaty knowledge on the part
of Hamilton.
The legal brook in this litigation ultimately runs down
to the proposition which the District Court seems to have
adopted, that is, with no more communication or contact
than he had with his former sister-in-law, the failure of
Hamilton McGowan to give her actual notice of the exis-
tence of the land and of her Honduran Treaty rights es-
tablishes, within the terms of the Treaty, the required
“necessity” for the prolongation of the specific three year
term in which Mrs. McGowan could have freely sold the
land. Indeed, the effect of the District Court judgment
is that this “necessity” would continue until someone, some-
where, someway, should give actual notice to an alien
inheritor of land, or to those who inherit from the original
inheritor, and so on down the line.
Such a construction of the Treaty, where there are
aliens in the chain of title would make a shambles of
2. Wecannot agree that Hamilton McGowan’s long and con-
tinued use of the land with his brother’s permission created a
trust, the obligations of which would pass to the permissive
brother’s widow. Under Mississippi law, McGowan was un-
doubtedly a mere tenant at will or sufferance. See St. Regis Pulp
and Paper Corporation v. Floyd, 238 So.2d 740, 743 (1970), and
the Mississippi cases there cited.
<a
A43
land titles. That is exactly what happened here. There
was no effort to enforce the Treaty rights until an oil
well had been brought in, whereupon the Treaty was
dusted off in an effort to scramble the title, an eventuality
which surely must have been beyond the anticipation of
those who drafted, signed, and ratified the Treaty in an
effort, for a reasonable time, to confer upon aliens a right
which by state law was categorically denied.
Accordingly, we hold that the primary term in which
Mrs. McGowan could have exercised the Treaty right of
disposal expired on October 31, 1960; that during that
time frame, and for the remaining eight years of her life,
no existing necessity was claimed by her for the prolonga-
tion of the three year period. Neither have the subsequent
heirs established any such necessity. The total inaction
reflected by this record cannot, by some kind of judicial
wand waving, be converted into “a necessity”.
We need not reach or decide what rights Mrs. Mc-
Gowan’s heirs might have had if she had died during
the three year period prescribed by the Treaty. She lived
on until 1969, taking no action, under the Treaty or other-
wise.
There are sundry other arguments which have not
gone unnoticed.
Appellee turns the spotlight on Section 842 of the
Mississippi Code of 1942, which allows non-resident alien
citizens of Syria or the Lebanese Republic to inherit prop-
erty from citizens or residents of Mississippi, but denies
that right to all other non-resident aliens. Hence, she
argues that the statute “denies to these selected aliens
the equal protection of the law, contrary to the Fourteenth
Amendment [and] constitutes an unconstitutional intru-
sion by the state into the field of foreign affairs which
is entrusted to the President and Congress”.
A44
[11, 12] Resident aliens, lawfully in the United States,
are undoubtedly entitled to the equal protection of the
law, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848,
29 L.Ed.2d 534 (1971). It is equally obvious that the
Fourteenth Amendment, by its own terms, has no applica-
tion to aliens not within the jurisdiction of the United
States.
“Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, with-
out due process of law; nor deny to any persen within
its jurisdiction the equal protection of the laws.”
The Mississippi statute was not attacked in the District
Court and there was no request that a three judge court
be convened. In any event, when the statute was last
amended, Chapter 237, Laws of Mississippi of 1940, it con-
tained the usual severability clause [Section 4]. Addition-
ally, if the statute, as presently written, were to be in-
validated, necessitating a return to the previously existing
valid statute* the legal status of the plaintiff-appellee as a
non-resident alien would remain the same. To go a step
further, if all the statutes were to be set aside, the status
of the non-resident alien under the common law would pro-
hibit her owning title to land in Mississippi, Scottish Amer-
ican Mortgage Company v. Butler, 99 Miss, 56, 54 So. 666
(1911).
3. Lawrence v. Mississippi State Tax Commission, 162 Miss.
338, 137 So. 503; affirmed, 286 U.S. 276, 52 S.Ct. 556, 76 L.Ed.
1102, 87 A.L.R. 374.
A45
[13] Appellee suggests that if she cannot acquire title
to the land (for sale under the Treaty) then the property
must necessarily escheat to the State. The Mississippi
claimants to this property are parties to this litigation. We,
therefore, point out that although § 89-1-23 Mississippi
Code Ann., 1972, provides for all land acquired contrary to
that section to escheat to the State, it must be read in con-
junction with § 89-11-1 Mississippi Code Ann., 1972, which
escheats property to the State when a person dies intestate
leaving no heir capable of inheriting the property (em-
phasis added). Under Mississippi law the non-alien heirs
had a vested remainder in the land, see Mississippi College
v. May, supra.
In accord is 3 Am.Jur..u, Aliens & Citizens, § 27, page
874:
“It is a principle of the common law that while
an alien cannot inherit, neither can he interrupt the
descent of others, and therefore, if some of the per-
sons answering the description of heirs are incapable
of taking by reason of alienage, they are disregarded
and the whole title vests in those heirs competent to
take provided they are not compelled to trace their
inheritance through an alien.”
And, also, 27 Am.Jur.2d Escheat, § 12, page 880:
“Incapacity of the heirs first entitled to succeed
to property will not effect an escheat, but the property
will pass to the persons next entitled to take as though
the first heirs had not existed.”
Appellee places great weight on Guiseppe v. Cozzani,
238 Miss. 273, 118 So.2d 189 (1960); 248 Miss. 588, 159
So.2d 278 (1964), and 193 So.2d 549 (1966). This case,
which made three appearances in the Mississippi Supreme
A46
Court, is distinguishable from the case at bar. Guiseppe
involved tenants in common, some of whom were aliens
living in Italy. Under the terms of a will left by a de-
ceased in 1906, their rights accrued subject to a life estate
which ended in 1933. In the first appeal, the Mississippi
Supreme Court held that the complaint filed by the alien
heirs was sufficient to state a cause of action and that
the Chancery Court erred when it sustained the defendant’s
demurrer. At the second trial, no evidence was taken
and the Supreme Court held on appeal that the lower
court had abused its discretion when it refused to grant
a continuance and dismissed the complaint with prejudice.
On the third and final appeal, the Mississippi Supreme
Court held that when the heirs in America filed an affida-
vit in Chancery Court that there were no living heirs in
Italy, knowing this to be false, they perpetrated a concealed
fraud on the Chancery Court and the alien relatives, and
that the alien relatives were not barred by the adverse
possession statute, § 15-1-9, Mississippi Code Ann., 1972,
from maintaining the suit in equity. The case turned
on fraud, not on an extension of time under a Treaty.
Under Mississippi law, when a person dies intestate
and leaves no wife, children, or children of deceased chil-
dren, any land owned in the State descends to his brothers,
sisters, and parents in equal shares, § 91-1-3, Mississippi
Code Ann., 1972.
[14] Appellee has extensively briefed this case as
if it were one involving a forfeiture of property and the
District Court alludes to forfeitures. We see it, however,
as one to adjudicate title to property. In all such cases
the true status of the title is decided. One found to be
without title is not the victim of a forfeiture. He had
nothing to forfeit.
A47
The judgment of the District Court is reversed and
the cause remanded to the District Court for further pro-
ceedings not inconsistent herewith.
Reversed and remanded.
GODBOLD, Circuit Judge (dissenting).
The central point of this case is the fact that Hamil-
ton McGowan was a fiduciary for his brother and for
his brother’s widow. His status as fiduciary requires a
conclusion that the interest of the widow is protected
against his claim of title.
The terms of the treaty provide that the three-year
period in which the widow must sell her interest is “rea-
sonably prolonged if circumstances render it necessary.”
In the circumstances of this case, where a fiduciary failed
to inform his alien beneficiary of her interest in the prop-
erty which was the subject of his fiduciary relationship,
asserted title to the property in himself, and attempted
to divest the widow of her interest by a state court proceed-
ing without notice to her, it is necessary that the three-
year period be “reasonably prolonged.” A declaration that
Hamilton holds the legal title subject to a constructive
trust in favor of the widow, and that she must dispose
of her equitable interest within a future time equal tu
that provided by the treaty, will fairly vindicate all in-
terest in this case.
To permit Hamilton to neglect and abuse a familial-
based fiduciary relationship as was done in this case and
by doing so acquire title to the property which as fiduciary
he was obligated to protect was too strong for the nostrils
of an able and experienced trial judge. It is too strong
for mine as well.
A48
1. Hamilton is a fiduciary.
The District Court characterized Hamilton as a fidu-
ciary. This factual conclusion of the trial court, necessarily
determined on a case by case basis, is not plainly erroneous.
The law of fiduciary relationships is a creature of
equity and gives effect to obligations of good conscience
and fair dealings between persons who are in such relation-
ship to each other that trust and confidence have been
reposed by one to another, or both to each other. The
underlying relationship may be what the Mississippi Su-
preme Court had called “conventional” in form, Ham v.
Ham, 146 Miss. 161, 110 So. 583 at 584 (1926), that is,
arising from familiar and defined legal relationships.
These include trustee and beneficiary, agent and principal,
guardian and ward, partners and joint venturers, life tenant
and remainderman, executor or administrator and heirs,
tenant and cotenant. Restatement of Trusts 2d* § 2(b);
2 Scott on Trusts (3d ed.)* § 170-21 at 1366 n. 2; 5 Scott
§ 495 at 3534. But, necessarily, the equitable concept of
the fiduciary is not quickened by only those relationships
formalized into precise “conventional” legal structures.
“The relation and duties involved in it [a fiduciary rela-
tion] need not be legal, it [a fiduciary relation] may
be moral, social, domestic, or merely personal.” Ham v.
Ham, supra at 584 (quoting 2 Pomeroy Equity Jurispru-
dence (4th ed.) § 956).*
1. The District Court held that the heirs of the widow are
entitled to the same protection as she would have had. No party
questions this conclusion. For convenience I refer to the interests
of widow and heirs as though the widow were still living.
2. Hereinafter “Restatement.”
3. Hereinafter “Scott.”
4. In Ham the persons involved were partners, but the court
chose not to rely upon that “conventional” foundation but rather
to look to their closer and more intimate relations.
A49
Mississippi gives very broad scope to the equitable
doctrine of the fiduciary and of constructive and resulting
trusts that are means of enforcing the fiduciary’s duties.
[T]he relation [of fiduciary] is not restricted to such
confined relations as trustee and beneficiary, partners,
principal and agent, guardian and ward, managing
directors and corporation, etc. Davis v. Hamlin, 108
Ill. 39, 48 Am.Rep. 541; Cushing v. Danforth, 76 Me.
114; 32 Am.Jur. 835, Sec. 991; Probst v. Hughes, 143
Okl. 11, 286 P. 875, 878, 69 A.L.R. 929. It applies
to all persons who occupy a position out of which
the duty of good faith ought in equity and good con-
science to arise. “It is the nature of the relation
which is to be regarded, and not the designation of
the one filling the relation.” Davis v. Hamlin, supra.
In the Probst case, supra, the Court said: “* * * a
trusteeship may arise by virtue of any relationship of
the parties in which it may be said that the one oc-
cupying the position of trustee is in duty bound to act
in the utmost good faith for the benefit of the other.”
“Wherever one person is placed in such a relation
to another by the act or consent of that other, or by
the act of a third person, or of the law, that he becomes
interested for him, or interested with him, in any sub-
ject of property or business, he is in such a fiduciary
relation with him that he is prohibited from acquiring
rights in that subject antagonistic to the person with
whose interests he has become associated.”
Risk v. Risher, 197 Miss. 155, 19 So.2d 484 at 486-87 (1944)
(sublessee negotiating new lease from lessor, held to be
in a fiduciary relationship to the lessee-sublessor and to
hold new lease as trustee for lessee-sublessor).
A50
In Sojourner v. Sojourner, 247 Miss. 342, 153 So.2d 803
(1963), the complaint alleged that by informal and unwrit-
ten family agreement heirs to family property conveyed
their interests to a brother on his promise to transfer it to
his sister by deed or will after a fixed period of years.
Upon his death after 11 years the sister claimed title as
against the brother’s widow, alleging that the widow had
knowledge of the family arrangement. The complaint was
held sufficient on fiduciary-constructive trust grounds.
The court negatived the necessity for an “express” rela-
tionship and said:
[A] constructive trust for fraud or wrong, being
based on the equitable principle that no one can take
advantage of his own wrong, exists in almost any
case where there is a wrongful acquisition or detention
of property to which another is entitled.
Id. at 808. See also: Adcock v. Merchants & Manufac-
turers Bank, 207 Miss. 448, 42 So.2d 427 (1949). Bank
employee, managing, controlling and collecting rents on
bank’s land, title placed in his name for convenience, held
a fiduciary and constructive trustee for bank; unnecessary
to show fraud.
I turn to examination of the relationship between
Hamilton and Elbert McGowan, recognizing that it need
not, and possibly does not, fit precisely into the four corners
of a “conventional” pigeonhole of the law. The beginning
point is, of course, that the two were blood brothers. Elbert
was absent in a foreign country, seldom returning home,”
in no position to protect his interest in 37 acres of Mis-
sissippi land. Hamilton managed and farmed his own
5. Twice between 1911 and his death. In his passport Elbert
showed Hamilton as the person to be notified in the event of his
death.
A51
and other family land adjacent or nearby, so it was natural
that he be called upon to care for Elbert’s two small
tracts. The terms of the arrangement agreed upon with
Elbert’s land as subject matter are not in dispute. The
District Court relied upon Hamilton’s own description,
made in his sworn complaint in the state title confirmation
suit that he filed in 1968:
Your Complainant would show that since the purchase
of the land by the said E. J. McGowan from his uncle,
T. J. Evans, in 1911 that he, your Complainant, has
had the exclusive control, use, occupation and manage-
ment of the said land. That he farmed it each and
every year, and never at any time attorned to his
brother or paid him anything for the use thereof;
neither was the same expected or required of him.
Complainant further says that he paid all ad val-
orem taxes upon the land and has paid the same
since his brother purchased the land in 1911 when
he was away from home working on the Panama Canal,
as aforesaid. Thus, for fifty-seven years between 1911
and this date Complainant has paid all the taxes and
had exclusive use of the same, farming, tilling or rent-
ing the same out for the purpose of farming and tilling
at all times. However, Complainant admits that he
was, between 1911 and 1936, performing all of these
duties without claiming title to the land as a favor
to his brother and for the use of the said lands.
For more than half a century Hamilton enjoyed the per-
missive use of the land, managing and farming it along
with his own and other family land as a unit through
tenants. He retained the profits, paid the taxes and, as
Judge Coleman points out, acknowledged his brother’s
ownership of the land in a number of ways.
A52
In Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188
(1962), a son managed the real estate of his mother, exer-
cising control over it, repairing buildings on it, and paying
taxes on it. Subsequently he claimed to be owner of
the property by virtue of a quitclaim deed from his mother
and a tax deed pursuant to a sale for unpaid taxes. Though
finding no actual fraud, the Mississippi Supreme Court
held that he was a fiduciary for his mother. The court
noted the holding in Ham v. Ham, supra, that had pointed
out the existence of fiduciary relations other than those
cast in “conventional” terms. It then held that the quit-
claim deed was prima facie voidable and that the son
had been unale to sustain his contention that it repre-
sented a gift. The tax deed was held to give no rights
to the son:
G. W. Wofford was managing the lands at that
time for his mother. His relation to his mother at
that time was that of a fiduciary; and it is well-
settled that a business agent or other fiduciary charged
with the management of his principal’s property can-
not purchase and retain a tax title to the property
for his own benefit. Pomeroy’s Equity Jurisprudence,
Vol. 3, Fifth edition, p. 825, Sec. 959c, and cases cited.
142 So.2d at 197.
In Minor v. McDowell, 113 So. 576 (Miss.1927), a son
managing his mother’s plantation was held to be in an
agent-principal relationship with her. In a second appeal
of the same case, the Mississippi Supreme Court held:
The relation between these parties as heretofore
declared by the court was that of principal and agent.
A cardinal requirement of that relationship is that
the agent shall be at all times loyal and faithful to the
interests of the principal, and he can acquire no pri-
A53
vate interest of his own in opposition to that of his
principal. There is a fiduciary relation which for-
bids the agent in any manner to place himself of
his own volition in a favored position as against the
principal in respect to the transactions growing out
of the relationship.
McDowell et al. v. Minor, 158 Miss. 788, 131 So. 278 at
280 (1930). Another principal-agent case is Van Zandt
v. Van Zandt, 227 Miss. 528, 86 So.2d 466 (1956), discussed
infra. See also Restatement of Agency § 389...
In Guiseppe v. Cozzani, 238 Miss. 273, 118 So.2d 189
(1960); 248 Miss. 588, 159 So.2d 278 (1964); and 193 So.2d
549 (Miss.1969), decedent died in 1896 leaving a life estate
to his widow with remainder over to his nieces, nephews
and a sister. The widow died in 1933. A niece residing
in Mississippi conspired with her (the niece’s) son to make
herself sole owner to the exclusion of the other heirs,
who were residents of Italy. The son petitioned to be
appointed administrator of the estate, and in that petition
and his subsequent petition to close that estate, made false
representations the effect of which was that his mother
was the sole person entitled to the property. He repre-
sented that his mother and decedent’s sister named
in the will were the only persons entitled to share in
the estate and that the sister had died and after diligent
search and inquiry he had ascertained that she had no
living descendants. In fact he had made no search or
inquiry. He represented that no other persons had any
interest in the estate and that his mother was sole owner.
He made no mention of the nieces and nephews in Italy.
In 1958 ten Italian nieces and nephews filed suit 25 years
after they became entitled to interests in the property.
The Mississippi Supreme Court, reversing the trial court,
considered two related issues: whether the interest of
A54
the Italian heirs as cotenants had been cut off through
adverse possession by the cotenant Mississippi niece, and
whether the Italian heirs were barred from relief by the
limitations period of § 710 of the Mississippi Code of
1942 [now § 15-1-9, Miss.Code Ann. 1972], which is ex-
tended by “concealed fraud.” See 193 So.2d at 552-53,
554
With respect to the first of these issues, the court
held that the Mississippi niece was a tenant in common
with the Italian nieces and nephews, and therefore in
a fiduciary relationship with them which prevented her
from holding by adverse possession without an “ouster”
through actual knowledge to them of her adverse claim
or through conduct so unequivocal that knowledge by those
out of possession must be necessarily presumed. Id. at
553-54. As to the second issue, the court held there was
concealed fraud, with the result that “these complainants
are not barred from maintaining this suit in equity by
virtue of the provisions of the Mississippi Code of 1942
Annotated, Section 710.” Id. at 554. Thus the holding
on the concealed fraud issue went to the timeliness of
the suit. That holding does not purport to limit the right
to relief against a fiduciary to situations in which he has
committed concealed fraud. In Wofford v. Wofford, supra,
the fiduciary was held liable although there was no fraud
or misrepresentation. 142 So.2d at 194. See also Adcock
v. Merchants & Manufacturers Bank, supra. In the instant
case the District Court elected to use gentler words than
fraud, but if fraud is a requisite it was present here.*°
[A]s between persons sustaining a fiduciary or trust
or other confidential relationship toward each other,
the person occupying the relation of fiduciary or of
6. The facts that require a conclusion of fraud are dismissed
in part 4, infra.
A55
confidence is under a duty to reveal the facts to the
plaintiff (the other party), and that his silence when
he ought to speak, or his failure to disclose what
he ought to disclose, is as much a fraud at law as
an actual affirmative false representation or act... .
Van Zandt v. Van Zandt, 227 Miss. 528, 86 So.2d 466
at 470 (1956) (holding that a cotenant having powers of
attorney from the other owners was their agent in consum-
mating a sale of timber from the land and was a fiduciary,
required to exercise loyalty and good faith and to report
to his principals the fact of the sale and to pay over
their share of the proceeds).
The response of appellants to the fiduciary issue is
twofold. First, they say that Hamilton was not a manager
as in Wofford, or an agent as in Minor, or a tenant in
common and agent as in Van Zandt. Hamilton could be
characterized as a “manager” as in Wofford though with
fewer managerial duties and less stringent fiduciary obliga-
tions. One could describe him as an “agent” as in Minor,
though with fewer duties as agent and fewer burdens
as fiduciary. And he can be termed as “agent” as in
Van Zandt though less formally authorized. But dialogue
such as this misses the mark. The existence of fiduciary
obligations is not limited to “conventional” forms and does
not turn on rubrics. Ham v. Ham, supra; Risk v. Risher,
supra; Sojourner v. Sojourner, supra. It is clear beyond
cavil that if the same arrangement had been made but
Hamilton were a cotenant with his brother, Hamilton owing
1/10 and Elbert 9/10, Hamilton would be a fiduciary.
Because of the mutuality of their interests, possession
and obligations, the relationship between cotenants
is confidential and fiduciary in natures Each has a
duty to sustain, or at least not to assail, the common
interest, and to sustain and protect the common title.
A56
Nichols v. Gaddis and McLaurin, Inc.; 222 Miss. 207, 75
So.2d 625, 629, 78 So.2d 471 (1974); Guiseppe III, supra.
Lacking the 1/10, he is no less bound to deal fairly and
honorably with his brother.
4
Appellants’ second response is that if there were a
fiduciary relationship it terminated upon Elbert’s death
and Hamilton owed no obligation to the widow. This
is discussed in part 3, infra.
2. Hamilton’s obligations as fiduciary.
Fiduciary relationships are of varying degrees of dig-
nity,, and some impose more stringent obligations than
others. 5 Scott § 495 at 3534. We need not define the
outer limits of Hamilton’s obligations with respect to his
absent brother and to the land that was the subject of
their arrangement. At a minimum he was under several
duties that dispose of this case. He was under a duty
of loyalty to his brother, to act to Elbert’s benefit and
not to profit at his expense. Restatement §§ 2(b), 170
and Comment a; 1 Scott § 2.5 at 39; 5 Scott § 495
at 3534. He had a duty to administer the subject matter
solely in Elbert’s interest. Restatement § 170(1) and
Comment a. He was under a duty to use reasonable
care and skill to protect the property that was the res
of the relationship. Restatement § 176; 2 Scott § 176.
He may not compete with the beneficiary in the acquisition
of property. 5 Scott § 504. It is but to state the obvious,
to say that He “on could not in derogation of duties
such as these c.aun as his own the land that was the
subject matter of the relationship of trust and confidence.’
7. He could not even purchase the property at a sale, fore-
closure or otherwise, even though he paid a fair consideration, be-
cause this would place in conflict his personal interest and his
duty as fiduciary. Restatement § 170, Comment b; 1 Scott § 170.2.
It would be strange indeed if, without paying anything, he could
by silence maneuver himself into ownership of that which he
could not purchase at a fair price.
A57
A fiduciary who has acquired a benefit by a breach of
his duty as fiduciary is under a duty of restitution to
the beneficiary. Restatement of Restitution § 138.
A fiduciary is required to supply information to the
beneficiary concerning administration of the trust only
upon request. See Restatement § 173. But the law of
trusts, embracing as it does both common sense and honor-
able dealings, applies a different rule where the fiduciary’s
personal interest collides with his duty to the beneficiary.
If he deals with the beneficiary on his own account he -
is under a duty “to deal fairly with him and to communicate
to him all material facts in connection with the transac-
tion which the [fiduciary], knows or should know.” Re-
statement § 170.8 See also Van Zandt v. Van Zandt,
quoted supra.
It is immaterial that Hamilton made no promise to
Elbert of specific duties that he would carry out. The
consequences of a fiduciary relationship flow from the
relationship as a matter of law. 1 Scott § 2.5 at p.
40.
3. Hamilton is a fiduciary for the widow.
Appellant’s second response to the District Court’s
view of Hamilton as a fiduciary is that even if he were
under fiduciary obligations to his brother the relationship
was terminated by Elbert’s death, and Hamilton had no
duty to the sister-in-law that his counsel describe as “a
8. The principles here involved are parallel to those of the
law of adverse possession. One who has come into possession per-
missively must evidence his intent to claim adversely by acts of
occupation sufficient to demonstrate hostile possession. As the
trial judge noted in this case, permissive occupation is so usual by
persons in familial relationships that acts which might be suffi-
cient to demonstrate to strangers hostile possession may not be
sufficient with respect to family members. Similarly, before a
tenant can claim adversely against his cotenants there must be
“ouster” by actual knowledge to the cotenants, or the equivalent.
See discussion of Guiseppe III, in part 1, supra.
A58
native Honduran woman”... “whom he never saw and
only heard of through the [United States] Consul.” This
could not be more wrong. Upon the death of Elbert,
his rights as the beneficiary of a fiduciary obligation de-
scended to his widow in the same manner as did the
land itself. Miss.CodeAnn. 1972, § 91-1-9; Restatement
§ 142°
If a beneficiary of a trust dies intestate, and if his
interest does not terminate on his death, the devolu-
tion of his interest is governed by the same rules
of descent and distribution as govern the descent and
distribution of a corresponding legal interest... . [I]f
the trust property is real estate, the interest of the
beneficiary passes to his heirs. (Footnotes omitted. )
2 Scott § 142.
Hamilton continued in possession of the land, enjoying
the use and profit, and assessing it in the name of the
estate of which the widow was the sole beneficiary (sub-
ject to the “three-year plus reasonable prolongation” provi-
sion of the treaty). The courts have characterized in
varying ways the precise interest of the alien in circum-
stances such as those before us. The appellants refer
to it as a fee simple determinable.'® Whatever its pre-
9. Hamilton was a fiduciary with respect to the widow for
another reason also. Although there was no administration of
Elbert’s estate in Mississippi and Hamilton had no status as repre-
sentative thereof, he purported to act as representative. He
changed the tax assessment to read “E. J. McGowan estate” and
until 1968 taxes paid by him were shown on the records as re-
ceived from that estate. Whatever his precise legal status, as the
person in possession of the decedent’s property pursuant to an
agreement with the decedent and holding himself out as au-
thorized to act on behalf of the estate, he was under fiduciary
obligations to the heirs of that estate.
10. “There is much discussion in the cases as to the nature
of the title which nonresident aliens held under the terms of
this tieaty. Some authorities denominate it a base or quali-
fied fee, and others as a determinable fee. The terminology
is not of controlling importance.”
Pierson v. Lawler, 100 Neb. 783, 161 N.W. 419, 420 (1917).
ASI
cise character, the widow had an interest in the land,
commencing at her husband’s death and extending there-
after for three years plus any reasonable prolongation
thereof. With respect to her interest Hamilton continued
to be a fiduciary as he had been for her husband.
As with respect to Elbert, the maximum perimeters
of Hamilton’s obligations to the widow need not be marked.
Under the narrowest, most minimal standards of faithful-
ness, fair dealing and the trust and confidence that under-
gird fiduciary relations, Hamilton was bound to notify
her that he was a fiduciary of certain land in which she
had a [fee simple determinable] interest and that she
was now the beneficiary of the obligations which he owed
with respect to the land and to the owner thereof. Notice
to her and action by her was the only way in which
the interest to which his obligations attached could be
preserved from destruction, for he had no power to sell
for her. He would have been obligated to give her notice
of circumstances that might cause her to lose her rights
to a stranger. “No one is required to watch the clerk’s
office to see that those in possessicn of property in privity
with him or in subordination to his title are not acquiring
rights adverse to him.” Nichols v. Gaddis and McLaurin,
supra, 75 So.2d at 633. Inarguably he was compelled to
inform her that if she failed to timely act he intended
to deal with the res for his own account and adversely
to her by himself claiming as an heir of his brother. Van
Zandt v. Van Zandt, 86 So.2d at 470, quoted supra; Restate-
ment § 170(2).
The situation here is similar to that in which the
subject matter of a fiduciary relationship is a leasehold
interest. The fiduciary may not secure a renewal of the
lease for his own benefit. Risk v. Risher, supra; 2 Scott
§ 170-21. Like a fiduciary-lessee in possession and seeking
A60
a renewal for himself, Hamilton draws his right to posses-
sion from someone other than the beneficiary; also he
made no effort to “evict” his beneficiary by terminating
his relation with her during the “term”—in her case three
years—but sought, and secured, through channels indepen-
dent of her and without notice to her, the interest avail-
able upon the termination of her interest.
4. Hamilton’s breach of fiduciary obligations.
From his brother’s death in 1957 until this suit was
filed in 1971, Hamilton made no attempt to communicate
with the widow, although he had been informed of her
status and her name and address by an official report
sent to him in 1957 by the U.S. consul in Panama. His
lame explanation that he didn’t believe that his brother
was married was no explanation at all, and the District
Court so treated it. Even if he was unwilling to believe
that his brother had married “a native Honduran woman,”
he knew the name, address and identity of the person
who held herself out to be Elbert’s wife, and who had
been accepted by the United States Consul in Panama
as Elbert’s wife for purposes of the Consul’s Report"?
and to whom his personal effects had been turned over.
The result in this case would be the same if Hamilton’s
failure to inform the widow were done without improper
intent. But we are not left to guess at his intent. His
daughter, an experienced businesswoman, handled pay-
ment of the taxes for him. Beginning around 1951 she
had attempted, but unsuccessfully, to have the assessments
changed from Elbert’s name to her father’s.
11. Report of the Death of an American Citizen, Form FS-
192. Under familiar evidentiary rules this official certificate
would almost certainly be admissible in a court, against hearsay
objections, to prove the truth of the matter asserted therein, a
much higher threshold to pass than that for notice necessary to
trigger the attention of a fiduciary.
1%
A61
In 1968 Hamilton filed his “confirmation suit” in Mis-
Sissippi state court claiming title by adverse possession
to the land. The District Judge referred to this as an
“attempted divestiture of the widow’. At no time had
he given notice to the widow that he intended to claim
adversely the land that for half a century he had held
permissively. See footnote 8, supra. Hamilton named
as parties to the suit his brothers and sisters, the widow
of a deceased brother other than Elbert, and “unknown
heirs, if any of E. J. McGowan.” Elbert’s widow was
not named as a party. Process was had on various named
defendants, their addresses having been given. The re-
maining process was by publication addressed to “unknown
heirs, devisees and executors, if any of E. J. McGowan
deceased, whose whereabouts, places of residence and post
office addresses are unknown.” At this time, the District
Court found, Hamilton “made no effort to locate [the
widow], or have process directed to her by name at her
last known address.” Also, as the trial judge found, he
did not allege, as required by Mississippi law, Warren
v. Clark, 230 Miss. 873, 94 So.2d 323 (1957), that he had
joined all parties interested in the land so far as they
were known to him and could be ascertained by diligent
inquiry. Such an allegation would have been false.
Hamilton took a default judgment in the confirmation
suit. The assessment to 27 of the 37 acres’? was changed
shortly thereafter from “E. J. McGowan estate” to Hamil-
ton’s name. Oil had been discovered on the land at a
date not revealed by the record. Beginning in late 1958
and continuing to the filing of this suit Hamilton partici-
pated in a series of oil leases, royalty contracts, and similar
documents relating to the property in question. Elbert’s
12. There is no explanation of why the assessment on the
other ten acres was not changed.
A62
widow died in 1969. Around 1970 the heirs of the widow,
residents of Honduras, learned of the land through persons
interested in oil development. Thereafter the widow’s
sister brought this suit. In the District Court Hamilton
claimed a parol gift of the land but wholly failed to estab-
lish it, and the appellants have abandoned that claim.
The facts here are remarkably parallel to those in
Guiseppe. There the nephews and nieces in Italy were
uneducated people who knew nothing of the United States
and its courts and legal records. The “native Honduran
woman” of this case had a fifth grade education, and
spoke little, if any, English and, so far the record discloses,
knew nothing of her husband’s 37 acres in Mississippi.
In each case a knowledgeable resident was on the scene
' in Mississippi."* In both cases the resident with no notice
to the distant members of his family, attempted to claim
adversely to them. In both cases the resident employed
state court procedures as a device to exclude his alien
relatives. In Guiseppe the son affirmatively misrepre-
sented in the state court suit. In this case Hamilton.
omitted an element of pleading that would have required
that he reveal the facts or swear falsely. The Mississippi
Supreme Court, in Guiseppe III, 193 So.2d at 553, treated
with unconcealed disdain the failure of the resident to
carry out his duty of diligently seeking out heirs in Italy.
The District Judge in this case found that the state
court confirmation suit did not deprive the widow of her
interest because as a matter of law Hamilton’s’ permissive
use and possession of the land was not adverse at least
until 1957, and because due process was violated by failure
to give her notice of the suit. The court then found
with respect to the three-year period provided by treaty
13. For many years Hamilton, in addition to farming, had
engaged in securing and putting together oil leases.
A63
that “until [the widow and her heirs] were made aware
of their interest, the circumstances were such as to require
a prolongation of the three year period in which to divest
themselves of their inherited interests” (emphasis added),
and that plaintiff had filed this suit within a reasonable
time after she learned of her interest.
As I understand Judge Coleman’s analysis it is this:
the widow loses, but not because of the judgment in the
confirmation of title suit, the validity (or lack of) which
he does not discuss. She loses because she failed to sell
her interest within three years and it terminated by opera-
tion of law in 1960. Title fell like a ripe peach into
the lap of Hamilton, not under the judgment in the con-
firmation suit but because he was the sole remaining heir
of Elbert entitled to take."* Judge Coleman declines to
“reasonably prolong” the three-year period because the
widow knew that her husband had family in Mississippi
and could have inquired, and, in any event, she was put
on notice of her husband’s ownership by the Mississippi
public records.
Uniformly the courts agree that what is an allowable
period in which the alien must dispose of his interest,
whether under a statute calling for “reasonable time,”
or one calling for a term of years, with a “reasonable
prolongation,” requires case by case analysis of the cir-
cumstances. Scharpf v. Schmidt, 172 Ill. 255, 50 N.E. 182
(1898) (commencement of suit for partition two and a
half years after alien’s death held to comply with two
years plus reasonable prolongation); Ahrens v. Ahrens,
144 Iowa 486, 123 N.W. 164 (1909) (50 years after alien’s
14. Under § 91-1-3 Miss. Code Ann. 1972, the brothers and
sisters of Elbert would inherit. Some or all of those other than
Hamilton appear to have deeded their interests to him. In any
event, the confirmation suit appears to have been valid with re-
spect to them.
A64
death heid outside of “reasonable time” statute where no
“excusing facts or circumstances” existed) ; Pierson v. Law-
ler, 100 Neb. 783, 161 N.W. 419 (1917) (same treaty pro-
vision as at bar, alien failed to prove circumstances showing
necessity for prolongation of eight years). Fischer v.
Sklenar, 101 Neb. 553, 163 N.W. 861 (1917), points out
that the original and specific term of a treaty providing
for such a term plus reasonable prolongation merely pre- £
vents the state from limiting the term to a shorter period.
To refuse to permit such further time as is reasonable
“would, for all practical purposes, render this [prolonga-
tion] provision of the treaty nugatory, while like any other
instrument, it should be construed to give it practical
effect rather than to make it ineffectual.”"* Id.
I find no other case involving similar treaty provisions
in which the issue of breach of fiduciary relationships
has been presented. In Miller v. Clausen, 299 F. 723
(CA8, 1924), relied upon by Judge Coleman, the decedent
died in 1911, the owner of Nebraska land, leaving a sister
Catharina, residing in Nebraska, and a father, brothers
and sisters, and other kin, all residing in Germany. The
father, Hans, died in 1916, having failed to exercise his
treaty-given right to sell, which was for a reasonable time
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