Walters v. Jewett , 28 Tex. 192 ( 1866 )

Moore, C. J.

—This suit was brought by the plaintiffs in error, the children and heirs of Zeruiah Walters, against their father, Hezekiah Walters, and the heirs of John G. Jewett, deceased, to establish title and have partitioned to them one-half of a league 'and labor of land, patented in the year 1845 to said John G. Jewett, on a certificate issued to him on the 27th day of March, 1838, by the board of land commissioners of Bed Biver county, as assignee of said Hezekiah Walters. The plaintiffs aver in their petition that their father and mother, Hezekiah and Zeruiah Walters, were married in the State of Elinois, and emigrated to Texas previous to the declaration of independence, and were residents thereof at that time.

By reason of their said emigration and settlement, the plaintiffs claim that their said parents were guarantied hy the constitution óf the republic of Texas a league and labor of land. They also allege that their mother died before the opening of the land office, and consequently before the certificate to which their parents were entitled could be procured, and no admisistration was ever had at any time upon her estate; but after her death they say their father “made a pretended sale of said league and labor of land” to said John Gr. Jewett.

It appears from the evidence in the record, that Jewett, on the 3d day of January, 1837, during the life of Mrs. Walters, purchased of Walters one-half of his head-right claim, and a title for this half was then executed. After-wards, on the 9th of February, 1838, subsequently to Mrs. Walters’ death, he purchased the other half of it, and Walters then executed to him an instrument, which purports to be a power of attorney, authorizing him to apply for, obtain, and locate the entire certificate in his own name, for his own use and benefit, and transferring to him all right, title, and interest in the certificate and the land to be located by virtue of it. This instrument is acknowledged to be made in consideration of $2,085, paid by Jewett to Walters, and unquestionably its legal effect is that of an absolute sale and conveyance by th$ latter of all his right and interest in the quantum of land to which he was entitled.

The other facts are not materially dissimilar from the allegations of the petition.

This suit was commenced on the 21st of January, 1856. The plaintiffs, at the death of their mother, about the 1st of January, 1838, were of very tender years, the youngest of them not being more than a few weeks old; yet it is a noticeable fact, that nothing is said as to the pecuniary condition of Walters at the time of his wife’s death, or as to his means of supporting and caring for a family, or whether the plaintiffs were nurtured and reared by him, or had been cared for and protected during their infancy by some one else. It may be also observed, although Walters is made a defendant and is served with process, he fails to answer, and no further notice is taken of him in the case.

Upon the trial, the court instructed the jury, that if they were “satisfied from the evidence that Walters sold his claim to land to Jewett, and that, under said sale, a certificate for a league and labor of land was issued to Jewett as the assignee of Walters, then the land acquired by virtue of such certificate would be the property of Jewett, and .the plaintiffs, as the heirs of Mrs. Walters, could have no right, either legal or equitable, to any portion of the land so acquired.”

There were a verdict and judgment for the defendants, a motion for a new trial, which was overruled by the court, and writ of error by the plaintiffs. The errors they assign are in substance error in the charge of the court, and that the verdict of the jury is contrary to the law and evidence. Whether there is error of which the plaintiffs can complain depends evidently upon their right, in the case presented by the record, to a judgment for any part of the land described in their petition.

The judge of the District Court, before whom the case was tried, from his instructions to the jury, evidently regarded it as strictly analogous to that of Webb v. Webb, 15 Tex., 274, and the law, as settled in that case, to be conclusively against-the plaintiffs. In the correctness of this view of the case all of the court do not concur; neither do we agree with the plaintiffs, that the question for our consideration has been decided by the court in the case of Wilkinson v. Wilkinson, 20 Tex., 242. The ruling in the first of these cases is placed, it seems to us, upon the supposition, that the grantee had no certain or vested interest until his qualifications as a colonist had been passed upon and recognized by the commissioner. Although he may not have been entitled when he first made his selection, if he were entitled when his application was presented to the commissioner, the grant should issue. Therefore, we should see who composed his family at the date of the grant, instead of at the time of his emigration, to ascertain in right of whom he obtained it. In the present case, the right is fixed by the constitution on the fact of residence in the country at the declaration of independence.

The primary object of inquiry before the boards of land commissioners was not so much to ascertain the qualifications of parties at the date of their applications, although conditions of this kind were superadded by the law, as to determine to whom they were guarantied and secured by the constitution.

But if there be a distinction between this and the ease of Webb v. Webb, there is a more palpable and manifest one between it and that of Wilkinson v. Wilkinson. In the latter case, the unconditional certificate issued and was located in the life of the wife. The land sued for was a part of the corpus of the community property at her death. The patent was issued to the surviving husband before the sale. The legal title was vested in the surviving husband as the representative of the estate before there was any effort to impair or defeat the rights of the heirs of the deceased wife by a sale of the property. In the case now before us, there was nothing to descend to the plaintiffs at the death of their mother but the bare inchoate right to a certificate. The county boards for issuing certificates had not even been then organized. ISTo property was then in esse which could descend to the heirs, or of which an administrator could take an account. They can be said to have acquired through their mother nothing more than an equity, which would have drawn to them an interest in the certificate when issued to their father, who stood as the representative, in this respect, of the community. But the certificate did not issue to their father. • The title was vested by the granting power directly in Jewett. The certificate was issued to him in his own name and in his own right. It is true this was done because the tribunal intrusted with this duty had decided that he was entitled as assignee to the right conferred by the constitution upon Walters as head of a family to a certificate for a league and labor of land.

It might, perhaps, be urged, with much justness, that the tribunal which granted this certificate, being clothed with authority to determine in whose favor it should issue, the correctness of its judgment could not be questioned, except .in a direct proceeding for that purpose. Undoubtedly it should not be done collaterally, and after the great length of time which has elapsed since this certificate was issued, except on strong and satisfactory proof.

The rights of the plaintiffs, in respect to the certificate granted to Jewett, are certainly very different from what they would havé been if it had been granted to their father. If the latter had been the case, the title would have been in him, as the representative of the community. He would have been the mere medium for receiving it. The certificate would have immediately become a part of the community estate. It would have been simply held by the father for those entitled to this estate, whether himself and wife, or himself and her heirs. But when the certificate was issued to the assignee, this was altogether different. In such case, if the heirs of a deceased wife have an interest, it is an interest to, and not in, the certificate. The grantee in this case receives it for himself alone, and not as representing any right or interest of theirs. To reach the certificate in his hands, it is necessary for them to establish such facts as will authorize a court of competent jurisdiction to declare him a trustee for them. More especially is this the case when the certificate, which was of comparatively little value when issued, has been located on valuable land, which was surveyed and patented solely at the cost of the assignee.

The rules regulating suits, in which the holder of a legal title is sought to be held a trustee for the owner of an equitable interest, are well settled and of familiar use. The plaintiff in 'such suits must disclose all the facts and circumstances connected with the business. He must make it manifest that the remedy he asks is indispensable to his relief, that he comes into court with clean hands, and has or is prepared to do equity himself. It must also appear that it is inequitable for the defendant to withhold from him the relief he seeks, for, if their equities are nearly balanced, the legal title will not be disturbed. The plaintiffs in this suit do not pretend to do anything of this sort; they attempt to do no more than assert what they conceived a valid legal title, which they claim is conclusively established by proof of the community interest of their mother at the date of the declaration of independence, her death, the subsequent sale by their father, the issuance of the certificate, and the patenting of the land. In this, as we have seen, they altogether mistook the law of the case. The judgment is

Affirmed.