Citation Numbers: 58 S.W. 168, 24 Tex. Civ. App. 97
Judges: HUNTER, ASSOCIATE JUSTICE.
Filed Date: 6/30/1900
Status: Precedential
Modified Date: 1/13/2023
This was an action of trespass to try title brought in the District Court of Parker County by the appellees against the appellant on the 9th day of March, 1898, to recover 1920 acres of land, situated partly in said county and partly in Palo Pinto County. The defense was "not guilty" and limitation of five and ten years. On the trial, however, the defendant abandoned his pleas of limitation. The case was tried by a jury, and verdict and judgment went in favor of the plaintiffs, and the defendant has appealed.
On the trial the plaintiffs proved by undisputed evidence that their father, William T. Malone, served as a soldier in 1835 and 1836 in Captain Parrott's artillery company, and the muster rolls show that he was in camp at the siege of Bexar, November 23, 1835, with his company. He was not killed in the battle of the Alamo, but died in Lee County, Mississippi, in 1880. There was no evidence that any one by the name of William T. Malone fell at the Alamo, other than was contained in the bounty warrant issued by George W. Hockley, Secretary of War, as given below. In fact, the record index of the muster roll of those who fell at the Alamo, kept in the General Land Office, fails to give such name, and one witness who was acquainted with the ancestor of plaintiff testified that he knew him and served with him as a soldier in said war, and that he never knew or heard of any other man of that name who served as a soldier in the war between Texas and Mexico. The land in controversy was located and patented by virtue of bounty warrant No. 4005, issued by George W. Hockley, Secretary of War of the Republic of Texas, on July 5, 1838, which is as follows: "Republic of Texas. Know all men to whom these presents shall come that Wm. T. Malone, having served faithfully and honorably for the term of five months from the twenty-sixth day of September, 1835, to the sixth day of March, 1836, and having fallen in the Alamo, is entitled to nineteen hundred and twenty acres bounty land, for which this is his certificate; and said Wm. T. Malone or legal heirs is entitled to hold said land, or to sell, alienate, convey, and donate the same, and to exercise all rights of ownership over it. In testimony whereof I have hereunto set my hand, at Houston, this fifth day July, 1838. Geo. W. Hockley, Secretary of War." The patent was issued on the 20th day of August, 1872, to the "heirs of William T. Malone, deceased." The defendant, appellant here, proved that he was in possession of the land in controversy, and had been for about five years, claiming to own the same, and had a general warranty deed to 480 acres of it from W.H. Fain, dated in 1893. Fain had a general warranty deed to said 480 acres from J.E.B. Stewart, date not given in the record, and Stewart held the same under a general warranty deed from J.M. Abbott, dated April 28, 1885.
The sole issue, in effect, submitted to the jury was whether appellees were the heirs of the William T. Malone, on account of whose military services and recited death in the Alamo the certificate and patent were issued; the court instructing them, if they so found, to find for appellees, and, if not, to return a verdict for appellant. *Page 99
One of appellant's assignments of error complains that "the verdict and judgment is not supported by the evidence, in this: That the evidence shows that this land was patented, in 1872, to the heirs of William T. Malone, deceased; and the evidence also shows that the William T. Malone under whom these plaintiffs claim did not die until 1880; while the evidence further shows that the William T. Malone who was entitled to this land fell at the Alamo in 1836; it also showing that plaintiffs' ancestor did not take part in the battle of the Alamo." This assignment the court sustains, because the evidence is undisputed that the father of appellees, in whose right as heirs they claim title to this land, did not fall at the Alamo, but died in the State of Mississippi in 1880. The certificate or bounty warrant issued in this case establishes on its face that a William T. Malone fell at the Alamo on March 6, 1836 (Smith v. Walton,
Reversed and rendered.