French v. Koenig , 8 Tex. Civ. App. 341 ( 1894 )

On February 7, 1853, the Legislature of this State passed the following special act:

"An Act for the relief of certain persons therein named.

"Section 1. Be it enacted by the Legislature of the State of Texas: That the Commissioner of the General Land Office be, and he is hereby, authorized and required to issue certificate for land to * * * William R. Willis, one league and labor of land. * * *

"Sec. 2. That no certificate which may be issued under the provisions of this act to the heirs of persons deceased shall be sold by any administrator or otherwise, until the same shall have been located, surveyed, and patented.

"Sec. 3. That no certificate shall be issued under the provisions of this act when a certificate for a like quantity of land, or in satisfaction of the claim to land, has been previously issued or granted by any authority of the Republic or State of Texas, in the name of or upon the rights or claims of any person named herein; and any certificate which may be issued contrary to the provisions of this section shall be null and void.

"Sec. 4. That this act take effect and be in force from and after its passage.

"Approved February 7, 1853."

The land in controversy was patented to William R. Willis, July 7, 1854, by virtue of land certificate number 2745/2846, issued to him by the Commissioner of the General Land Office, February 12, 1853, in obedience to the above act.

The evidence is sufficient to sustain the finding of the court below, that this certificate was by the Legislature directed to be issued to Willis, in consideration of the fact that he immigrated to Texas prior to March 2, 1836, as the head of a family, his wife, Esther, being then living. His wife, however, died in 1842, something over ten years previous to the passage of the act, and left surviving her two sons, John and William, by this marriage, and two daughters of a former marriage. One of these Willis children (William) subsequently died, leaving his father, and one brother of the whole blood and two sisters of the half blood, surviving him.

Appellees claim that the certificate issued under the above act was community property of William R. Willis and his deceased wife, Esther, and they claim the interest of the wife under the surviving Willis child, John. The interest of the two daughters of a former marriage is not represented in this suit.

Appellants claim, that the certificate was a pure donation by the State to William R. Willis after the death of his wife, and was therefore his separate property, and claim under conveyances from him as follows:

First. An instrument in writing, dated November 23, 1852, reciting, that "said Willis having sold said William Lewis, about four years since, one undivided half of his headright claim for land then to be obtained from the government of Texas, for and in consideration of his expenses and trouble for obtaining the same, and said Lewis having attended to the same and obtained said Willis' headright claim for one league and labor, and having paid and agreeing to pay all of the expenses incurred in obtaining said headright, I hereby confirm said sale on my said Willis' part. I, said William R. Willis, bind and obligate myself to make said Lewis a good and sufficient title to my half on or before the 1st day of April next, said Lewis agreeing and obligating himself on his part to pay said Willis $100 in cash and a land certificate for 320 acres, $150 in cash."

Also a second instrument, as follows:

"STATE OF TEXAS, } "County of Jasper.}

"Know all men by these presents: That I, William R. Willis, of the county of Jasper, being the legal and just owner of a league and labor land claim number 2745/2846, issued February 12, A.D. 1853, to me, the said Willis, in accordance to a Special Act of the Legislature, approved February 7, 1853, by the Commissioner of the General Land Office, have this day sold, alienated, and transferred all my right, title, and interest in and to the said land claim to William Lewis, for and in consideration of services rendered in obtaining said land claim, and $300 cash in hand paid to me by said William Lewis, the receipt whereof is hereby acknowledged. I bind myself, my heirs, and assigns to warrant, defend the same against all claims of any persons whatsoever claiming the same, to him, the said William Lewis, use and benefit forever.

"Given under my hand and scroll by way of seal, this 15th day of March, 1854.

HIS "WM. R. + WILLIS." MARK

Also under a transfer made in November, 1854, by said Willis to said Lewis, written on the back of the original patent, conveying all right, title, and interest of the former to the latter in the land therein described.

The evidence is not sufficient to authorize us to overrule the conclusion of the trial judge, that the sale from Willis to Lewis was not made to pay community debts.

John Willis did not die until 1863. He left surviving him his wife, who died in 1890, and one child, who subsequently married appellee John Koenig, and died, leaving minor children surviving her.

Judgment was rendered in the court below in favor of appellees for one-fourth the land in controversy and in favor of appellants for the remainder.

Opinion. — We believe the court below erred in holding appellees' claim not to be a stale demand, under the facts disclosed by this record; and it will therefore be unnecessary for us to consider the interesting questions presented by the other assignments of error.

It seems clear that the certificate and patent issued in pursuance of the special act copied in our conclusions of fact in terms placed the legal title to this land in William R. Willis, the grantee named therein. Edwards v. Brown, 68 Tex. 329; Harvey v. Cummings, 68 Tex. 607; Goode v. Jasper, 71 Tex. 51; Carlisle v. Hart, 27 Tex. 352 [27 Tex. 352].

At the time of the passage of this act, Willis' wife, the great-grandmother of appellees, had been dead for about twelve years; and in order to show that they had an interest in this land, it was necessary for them to prove by verbal evidence that the consideration which moved the Legislature to make this grant was the fact that she came to Texas years prior thereto, as the wife of the grantee, and that he should therefore be treated as a trustee for his heirs to the extent of the interest to which she would have been entitled had she been living.

In Carlisle v. Hart, supra, the grant was made in the name of one of the tenants in common (as in this case, if appellees' position as to the right to the certificate under the evidence be conceded), and it was held that the right of the other tenants to enforce the trust in their favor became stale after the unexcused lapse of ten years from the accrual of their cause of action. A similar ruling was made in Brown v. Guthrie, 27 Tex. 610. Also see Montgomery v. Noyes, 73 Tex. 209; League v. Rogan,59 Tex. 435; Land and Cattle Co. v. Ward, 1 Texas Civ. App. 310[1 Tex. Civ. App. 310]; Browning v. Pumphrey,81 Tex. 163.

In this case, appellees also contend that their claim should not be held barred by laches, because there is no evidence in the record that notice was ever given to them of a repudiation of the trust in their favor, either by Willis or his vendees. To this, however, it must be replied, that there is no evidence in the record of a recognition of such trust by any of these alleged trustees at any time; nor is there any evidence of such a claim having been asserted, either by appellees or those under whom they claim, for a period of over thirty-five years after the legal title to this land had been vested in others. During this time the surviving son of Mrs. Willis attained his majority, married, and died, leaving a daughter, who grew to womanhood, married, and died, leaving appellees, who now, after this long lapse of time, seek to divest the vendees of their great-grandfather by the introduction of parol evidence to show that their great-grandmother had an interest in a land certificate issued in the name of her husband twelve years after her death.

We believe that no sufficient excuse has been shown by appellees for their failure to sooner assert this claim, and that for this reason the court below should have rendered judgment in favor of appellants for all of the land.

We think it clear that the conveyance from William R. Willis to William Lewis, of date March 15, 1854, must be construed as a transfer of the entire certificate, and not merely a sale of the grantor's interest therein, and that the court erred in holding that it only purported to convey a one-half interest. It recites, that the grantor was the owner of the entire "league and labor land claim;" that he conveys all his "right, title, and interest therein;" and contains a covenant of general warranty of title.

The judgment of the court below will be reversed, and here rendered in favor of appellants for all of the land in controversy.

Reversed and rendered.

ON MOTION FOR REHEARING.