Houston Oil Co. v. Gallup , 50 Tex. Civ. App. 369 ( 1908 )

WILLSON, Chief Justice.

The suit was to try the title to the Patsey Lewis survey of 17,639,400 square varas, situated in San Augustine County, on Ayish Bayou, and about twenty-one miles south of the town of San Augustine. Appellants, except as to a portion of the land for which they obtained judgment, claimed title through mesne conveyances from parties claiming as devisees under Patsey Lewis’ will, and appellees claimed through mesne conveyances from parties claiming as her heirs. From a finding of the court in favor of the title asserted by the heirs as against the title asserted by the devisees, and a judgment entered in accordance with such finding, and from a finding in favor of appellee D. L. Gallup against appellant S. W. Blount, who had warranted the title to a portion of the land, in the sum of $1427.40 as damages- for a breach of the warranty, this appeal is prosecuted.

The trial court’s conclusions of fact are a part of the record. So far as they do not conflict with the findings below, we think they are supported by the record. In one or two particulars we think they are not so supported; and in one or two other particulars where findings should have been made, none were made. These omissions have been supplied in the findings below.

Patsey Lewis, a widow with several children, emigrated to Texas from Missouri about 1818 and settled in San Augustine County. September 23, 1834, as the head of a family, she made application to the proper authority for a grant as a colonist to one league of land; and September 26, 1834, the proper commissioner directed that a survey be made for her of the quantity of land she had applied for. October 13, 1834, a survey—of twenty labors, it seems—was made for Mrs. Lewis by surveyor David Brown. The field notes of this survey were shown to be in the vault in the General Land Office where the Spanish archives are kept, and a copy thereof seems to have formed a part of the deposition of the witness Robison, but for some unaccountable reason same were not made a part of the record on this appeal. Therefore, we have been unable directly to determine whether the survey then made was of the land in controversy or not. Circumstantially, it perhaps sufficiently appears that it was. The circumstances connected with the filing of the field notes and the date of the filing thereof in the Land Office are not shown in the record. On a map compiled by David 0. Warren, County Surveyor of San Augustine County, certified by Warren on November 10, 1839, as being correct, and forming a part of the archives of the General Land Office, the land in controversy was represented as the “Lewis” survey, as fronting west on Ayish Bayou, and as lying south of and adjoining the Leakey survey. On another map forming a part of said archives compiled in 1841 by Ira Ellis, then County Surveyor of San Augustine County, the land was represented about as it was on the Warren map.

July 23, 1835, a final title was extended to Patsey Lewis to a survey of 4,289,587 square varas, surveyed for her by authority of the order of the commissioner made on her application referred to. This land was shown to have been situated in said San Augustine County, about seven miles east of the town of San Augustine, and to have been the land on which she resided before and at the time of her death.

Patsey Lewis died in San Augustine County in 1843, leaving a will dated February 13, 1843, and probated June 19, 1843, by which she devised to her daughter Matilda C. Thompson 200 acres of the land in controversy, and to her sons Burrell J., George, and A. A. Lewis, the remainder thereof. November 12, 1849, Burrell J. Thompson, who had been appointed administrator with the will annexed of her estate, as “administrator and representative of Patsey Lewis, deceased,” petitioned the Legislature to pass an Act requiring the Commissioner of the General Land Office to issue a patent to the land in controversy, according to the survey thereof made by David Brown in 1835. In his petition Thompson recites:

“Patsey Lewis, deed., during her life time and in and about the year 1834 or 5 obtained an order of survey for one league of land from the Commissioner of Lorenzo de Zavala grant or colony as a colonist, viz.: from George A. Nixon, and by virtue of said order of survey had a portion of said land surveyed near San Augustine where she then lived and afterwards died, and a title extended to the same by the aforesaid commissioner, George Antonio Nixon, in the year 1838—and your petitioner also finds that she had the residue surveyed in the spring of 1835 about 20 miles south of San Augustine on the Ayish Bayou by David Brown, one of the regular commissioned surveyors of said colony, which is evidenced by and from the copy of the field notes herewith appended to this petition, as also from the certificate of the County Surveyor of San Augustine County that said survey for Patsey Lewis, deed., has always appeared upon the map of said county, recognized and acknowledged as her lands and has also been returned and appears on the map sent to the General Land Office from this county.”

February 1, 1850, "an Act for the relief of the heirs of Patsey Lewis, deceased,” became a law. It was as follows:

“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 to the heirs of Patsey Lewis, deceased, upon their paying the usual fees and Government dues, a patent for thirty-five hundred and sixty-two acres of land, that being the residue of a league to which said Patsey Lewis in her life time was entitled, and that this Act take effect from its passage.”

In accordance with said Act, on field notes of a survey of the land made October 5, 1852, the land was patented to the heirs of Patsey Lewis, deceased, August 3, 1853.

The inventory returned July 24, 1844, in the administration had on Patsey Lewis’ estate included as a part of the property belonging to the estate “three-fourths of a league of land on Ayish bayou surveyed and not titled.”

At her death Patsey Lewis left as her heirs, Matilda Thompson, her daughter; Ephraim Tally, child of her daughter Sarah Tally; Margaret Johnson, her daughter; Mary Jones, her daughter; Precious Blankenship, her daughter; Melinda Stovall, her daughter; and George W. Lewis, Allison A. Lewis and Burrell J. Lewis, her sons. During her life time, at dates ranging from 1835 to 1841, she had executed deeds of gifts whereby she had conveyed to each of her daughters, except Matilda Thompson, to whom she devised 200 acres of the land in controversy, 200 acres of the land she resided upon. She had also during her life time conveyed to her son Burrell J. Lewis a negro boy named Willis, and to her daughter Sarah Tally a negro girl named Jane. By her will, on conditions named therein, she gave to her daughter Matilda Thompson a negro woman named Polly, to B. J. Lewis a negro woman named Sophia, and to Mary Jones a negro named Jane; and to Presha Blankenship without condition a negro child. By the same will she devised to B. J. Lewis her “old field and .what land she owned north of the old main road from San Augustine to Milam,” which seems to have been a tract of forty acres out of her home place.

The inventory of her estate, before referred to, showed as belonging to same, in addition to the land in controversy, the following property only: negro slaves name “Polly,” “Sofy,” “Jane” and "Ellen;” forty acres of land; one old mare; and one cow and calf.

It was shown by a statement from the Comptroller’s office, that in 1847 the taxes on 3321 acres of the Patsey Lewis survey were assessed against B. J. Lewis; that in 1848 the taxes on 3368 acres thereof were assessed against him “by B. J. Thompson, agent;” that in 1849 the taxes on 2241 acres thereof were assessed against him “by B. J. Thompson, agent;” and that in 1850 2214 acres thereof were assessed against him. It was also shown by the same statement that in 1849 the taxes on 1107 acres were assessed against Geo. W. Lewis, and that in 1850 the taxes on 1407 acres were assessed against him. It further appeared from said statement that in 1849, 1850 and other years, the taxes on a tract of 40 acres of the Patsey Lewis land were assessed against B. J. Lewis.

It appeared that during the life time of Patsey Lewis, at her instance, ten or fifteen acres of the land in controversy had been cleared. The clearing was referred to by a witness as “an old field.” There is in the record no evidence of any further actual possession by any one of the land or of any part of it.

On facts found by him the learned trial court concluded as follows:

“At the time of the death of Patsey Lewis in 1843, she had no title whatsoever to the land in controversy in this suit, and it was not the subject of testamentary disposition by her.

“I conclude as a matter of law that the Special Act of the Legislature granting the land in controversy to the heirs of Patsey Lewis was an act of sovereign grace and bounty on the part of the State and that its benefits enured to all of the heirs of Patsey Lewis alike. And that therefore the title thus granted vested in all of the heirs of Patsey Lewis and their assigns.”

In so concluding we think the trial court erred. As the head of a family, under the laws in force in 1834, Patsey Lewis was entitled, to one league of land. As a part of the league to which she was entitled, by virtue of an order issued by the proper commissioner, the land in controversy was surveyed for her prior to the closing of the Land Office in 1835. The order for a survey then obtained was declared by the Constitution of the Republic to be valid. General Provisions, Sec. 10. The authority for the. survey so made being valid, the survey made by virtue of that authority should be held to have been a valid survey, and to have operated as a segregation of the land in controversy from the public domain." To and in the land so segregated, Patsey Lewis had acquired a right—an equity—capable of being so perfected as to vest in her an absolute title to the land. Because of her failure to comply with requirements of laws then in force, such'an absolute title did not vest in her, and she died dwning only an equity in the land. It was this equity which justified the action of the officers of the State in 1847, in 1848, in 1849 and in 1850, in assessing the land for taxes as property belonging to her legal representatives. 'It was this equity her administrator petitioned the Legislature to recognize and perfect by a patent to the land; and it ivas this equity, we think, that the Legislature in 1850 referred to when it declared that she was entitled to the land in her lifetime. As appears from its plain terms the Act of the Legislature was intended as a recognition of and as a provision for the enforcement of a right, and not as a donation.. And it was a right existing in Patsey Lewis and not in her heirs. As was said in Fishback v. Young, 19 Texas, 515, where a land certificate had been issued to the heirs of one Cornelius, “they —the children—have no personal or individual right to the land granted. They can claim only as the representatives of the deceased.” And the court in that case added: “Let the grant be issued as it will, if the issue be to persons representing, in form or in fact, the deceased, it must inure to the benefit of all interested in the estate.” And see Pendleton v. Shaw, 18 Texas Civ. App., 439; Soye v. Maverick, 18 Texas, 101; Lyne v. Sanford, 82 Texas, 61; Marks v. Hill, 46 Texas, 349; Hill v. Kerr, 78 Texas, 218; State v. Zanco’s Heirs, 18 Texas Civ. App., 127; Rogers v. Kennard, 54 Texas, 35; Ralston v. Skerrett, 82 Texas, 492; Hines v. Thorn, 57 Texas, 102.

In disposing of the contention made in Lyne v. Sanford, supra, that a certificate issued to heirs was a donation to them and not assets of the decedent’s estate, the court said: “By reference to the special Act, it will be seen that the Legislature, in granting this certificate, recognized that Willis A. Farris had before his death earned the right to a headright certificate of a league and labor, and in recognition of this right they granted to his heirs or legal representatives the certificate, if he had not theretofore received his headriglit. The terms of this Act clearly imply that the consideration that moved the Legislature to grant the certificate was the right existing in Farris by reason of his having complied with the laws under which the certificate was earned. If this was the purpose of the Legislature the grant can not be regarded as a gratuity or donation to the heirs.” Keeping in mind the declaration of the court in Fishback v. Young, supra, that the grant, however issued, if it were to “persons representing, in form or in fact, the deceased, must inure to the benefit of all interested in the estate,” we are unable to see why what was said in the Lyne-Sanford case is not as applicable to the facts of this one. In the Act directing the issuance of a patent in this case as in the Act directing the issuance of a certificate in that one, the Legislature recognized as a fact that the decedent before her death had earned the right to the grant. Here, as there, the grant was in recognition of that right. As truly here as there, the consideration that moved the Legislature to make the grant was the right existing in the decedent by reason of her having complied with the laws under which the land was earned. There the certificate was held to have been assets of the decedent’s estate, and as such subject to his debts. Here, for similar reasons, we think it must be said that the land was assets of Patsey Lewis’ estate and as such subject to be devised by her. The conclusion reached, we think, is supported by the authorities- cited, and we think is very much strengthened by the decision of the Supreme Court in Nona Mills Co. v. Wright, 101 Texas, 14. There the Legislature in 1838 had declared certain named persons and “all others who had been permanently disabled by loss of eye, arm or limb, or other bodily injury,” to be entitled to one league of land. One Hamilton, who was entitled to a league and labor as one of the persons the Act provided for, during his lifetime failed, as did Patsey Lewis in this case, to apply to and obtain from a board of land commissioners a certificate evidencing his right. January 12, 1854, when he owned no greater right to it than that owned by Patsey Lewis to the land she devised, he conveyed to one Dupree in trust for Maria Hamilton, his former slave, one “league and labor of land donated to him by the State of Texas for losses suffered during the Mexican invasion.” In 1858 the Legislature passed an Act requiring the Commissioner of the General Land Office to issue to him a certificate for 'one league of land, “on account of wounds received in the service of the late Republic of Texas in 1836.” Hamilton died in 1859. In disposing of the contention that the deed in trust to Dupree did not pass the title afterwards perfected in Hamilton, Justice Brown said:

“The land sued for was located, survej^ed, and patented by virtue of a certificate issued by the Commissioner of the General Land Office to Isaac D. Hamilton for one league of land by authority of the Act of February 13, 1858, above quoted. If Isaac D. Hamilton’s right was derived primarily from that Act, then the deed to Dupree did not embrace it, because it purported to convey a right in existence at the time of its execution. If the Act of 1858 stood alone, the grant of the land to Isaac Hamilton could be derived from it by implication- only, based upon the authority given to the Land Commissioner to issue the certificate, because there are no words in the law appropriate to express the grant of a right. The language, ‘be and he is hereby required to issue to Isaac D. Hamilton a certificate,’ etc., is apt for directing the Commissioner to perform a duty in discharge of an existing obligation of the State; and when we look to the further language, ‘for one league of land on account of wounds received in the service of the late Republic of Texas in 1836, which have disabled him,’ we see that the consideration of the grant is the same as that expressed in the law of 1837. Looking to the Act of 1837, we find that the grant of one league of land was made to five persons, by name, ‘and all others who have been permanently disabled by loss of eye, arm or limb, or other bodily injury, as by certificate of the board of land commissioners, shows his incapacity for bodily labor, by wounds received in the service of Texas, be and they are hereby declared to be entitled to one league of land each.’ The Act of 1858 specifies Isaac D. Hamilton as being one of those who had been wounded in the service of the Republic in 1836, and whose wounds disabled him. The law creating the land board having been repealed, Hamilton could not secure his certificate from the Commissioner of the General Land Office, because he could not get the certificate from the board of land commissioners therefor. The Legislature ascertained the facts which the board of land commissioners were required to find and certify, and then directed the Commissioner of the General Land Office to issue the certificate for the same quantity of land, for the same service, and based upon the same fact of disability as were specified in the Act of 1837. We think it satisfactorily appears from a comparison of the two Acts taken in connection with the application to the Legislature by Hamilton for relief in 1858 that the right of Hamilton was recognized as existing under the law of 1837, and the Act of 1858 was simply a relief law whereby Hamilton secured the certificate to which he was entitled under the former law. This, being the case, we see' no reason to doubt the proper construction of the deed to be that Hamilton intended to convey to Maria Hamilton the league of land to which he was entitled under the Act of 1837. There are some discrepancies in the description, but they are immaterial and will be discarded so as to give effect to the intention of Hamilton in making this deed.”

If, while at the time he made the conveyance, because of his failure to take advantage of the laws which would have enabled him to have secured a certificate from a board of land commissioners, Hamilton, as must be conceded to be true, did not have a right which the courts could recognize, yet had such a right as through his deed operated to pass to his grantee the title to the land when perfected by the Act of the Legislature, we see no reason why it should be held that the will of Patsey Lewis, made at a time when she had at least as good a right, should not operate to pass to her devisees the title, when perfected, to the land in controversy. We think it must be held that her will did so operate, and that the title to the land in controversy when perfected vested in her devisees. Massey v. Papin, 65 U. S., 362, 16 Law Ed., 734.

Except in so far as' it adjudges a recovery of 1280 3-7 acres of the land in favor of appellee W. D. Gordon as against appellant, the Houston Oil Co. of Texas and its receivers, and a recovery of 95 acres of the land in favor of Geo. J. Hassell and others, intervenors, and except in so far as it adjudges costs and a recovery of the sum of $1427.40 in favor of appellee D. L. Gallup as against appellant S. W. Blount, the judgment will be affirmed. In other respects it will be reversed, and judgment will be here rendered that, as against appellant S. W. Blount, appellee D. L. Gallup take nothing, and that appellant the Houston Oil Co. and its receivers recover as against said Gordon and said intervenors said 1280 3-7 and said 95 acres of land. The costs of this appeal will be adjudged against said Gordon and said intervenors, and appellants will have judgment for the costs incurred by them in the court below.