Ames v. Hubby
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 705 |
| Parties | HARRIET A. AMES v. WILLIAM H. HUBBY ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from McLennan. Tried below before the Hon. X. B. Saunders.
The case was submitted under rule 47, upon an agreed statement, as follows:
1. Plaintiff and S. C. Page were lawfully married February 14, 1829.
2. Joseph Page, the only issue of said marriage, was born December 29, 1830.
3. A San Jacinto donation certificate for 640 acres of land was issued to said S. C. Page and his heirs December 15, 1838, and was located on the land in controversy in 1847.
4. Plaintiff and S. C. Page were divorced, by decree of the District Court of Harris county, May, 1840.
5. Plaintiff raised and educated Joseph, and neither plaintiff nor Joseph received any alimony or other assistance from said S. C. Page at or after said divorce.
6. Plaintiff married Charles Ames on August 10, 1842.
7. S. C. Page leased said certificate to Aiken for ninety-nine years, renewable forever at one cent per year, November 13, 1846.
8. Patent issued to S. C. Page on February 12, 1847. The patent grants to said Page and his heirs forever 640 acres of land, leaving out the term “assigns,” and incorporating in the body of the patent “this grant * * * shall not be subject to sale, alienation, mortgage, or execution during the lifetime of S. C. Page, hereby relinquishing to him, the said S. C. Page, and his heirs forever,” and here again leaving out the term “assigns.” The same limitations and restrictions were also incorporated in said certificate. (Paschal's Dig., 4062.)
9. Aiken deeded the land to defendant Hubby on October 21, 1852, and all the other defendants hold under Hubby.
10. S. C. Page, in order to effect the object and intent of the lease of November 13, 1846, and without any new consideration, deeded the land to Aiken on May 24, 1853.
11. S. C. Page died in 1854, leaving Joseph his sole heir.
12. Joseph Page died February 2, 1855, leaving plaintiff his sole heir.
13. Charles Ames, second husband of plaintiff, died February 23, 1866.
14. Notice of the character of the grant and the restrictions and limitations in the patent admitted.
15. This suit was filed March 23, 1875, to recover the 640 acres of land so located and patented by virtue of said donation certificate in McLennan county, as described in said patent.
James C. Walker, for appellant.
I. The certificate and patent conferred a life estate upon S. C. Page, with a vested remainder in fee in his son Joseph. (Paschal's Dig., 1400, 4059-4065, 4067, 4068; 1 Wash. on Real Prop., secs. 37, 45; Hall v. Tufts, 18 Pick., 455; Bradley v. Peixoto, 3 Ves. Jr., 325; Bufford v. Holliman, 10 Tex., 573;Hancock v. Butler, 21 Tex., 812;Warnell v. Finch, 15 Tex., 165.)
II. If we are wrong in the above proposition, then plaintiff claims that said certificate was community property, and consequently plaintiff is entitled to half the land upon such terms as shall be deemed equitable. (Chapman v. Allen, 15 Tex., 283;Mitchell v. Marr, 26 Tex., 329;Lot v. Keach, 5 Tex., 396;Forbes v. Dunham, 24 Tex., 612;De Blane v. Lynch, 23 Tex., 25.)S. H. Renick, for appellees.
I. The prohibition of alienation contained in San Jacinto donation warrants, being contrary to the general policy of the country, must be strictly construed, and does not prohibit a lease.
II. If the prohibition did extend to a lease, then the inhibition against alienation was removed by the act of April 29, 1848, and the acquiescence of Page up to the time of his death would amount to a ratification. His retaining the purchase-money without complaint is itself a ratification. (Paschal's Dig., art. 4066.)
III. The deed of Page to Aiken is a valid transfer of the land after the inhibition against alienation was removed.
IV. A San Jacinto donation was, as its name imports, a gift made after the services were rendered, and was a gratuity, and so never was community property, but was property acquired by gift. (Paschal's Dig., art. 1059; Hubbard v. Horne, 24 Tex., 270;Causici v. La Coste, 20 Tex., 269.)
J. C. Walker, for appellant, in reply, cited and discussed Thompson v. Cragg, 24 Tex., 595;United States v. Gratiot, 14 Pet., 526;Griffin v. Chubb, 7 Tex., 610;Walton v. Cotton, 19 How., 358;Roan v. Raymond, 15 Tex., 78;Eastland v. Lester, 15 Tex., 98;Soye v. Maverick, 18 Tex., 101;Polk's Lessee v. Wendall, 5 Wheat., 308;Sampeyreac v. United States, 7 Pet., 222;8 How., 417;Keys v. Mason, 44 Tex., 144;Springfield Bank v. Merrick, 14 Mass., 324;Brown v. Christy, 27 Tex., 76.)
The first proposition urged by appellant for the reversal of this judgment is, that the certificate and patent for the land in controversy, which were issued to S. C. Page under the act of December 27, 1837, “granting lands to those who were in the battle of San Jacinto and other battles,” gave to said Page merely a life estate, with a vested remainder in fee to his heir.
We, however, are unable, after a critical examination of the statute, to find anything, either in the evident object and purpose of its enactment or the language in which it is couched, to warrant such a construction; and we are quite sure, although hundreds of titles are held under deeds from the patentees of certificates issued in virtue of it, this is the first time this court has been asked to give it the construction insisted upon by appellant. We think it would be an unwarranted reflection upon the titles purchased from the original grantees since the act of March 2, 1848, authorizing the alienation of these certificates and the lands acquired under them, to recognize the objection as worthy of serious consideration or discussion.
It would certainly be a singular conclusion to suppose that it was the object of this act to give a more enlarged and beneficial estate to the heirs, whether direct or collateral, no matter how remote, than to the immediate object of its bounty, and whose gallant and heroic service was intended to be commemorated. It is quite true, as counsel insists, that the right of free and unlimited alienation is one of the most important incidents of a title in fee-simple. (1 Wash., sec. 37, p. 67.) But it certainly does not follow that the government, if it sees fit to do so, might not, when making a donation, restrict or limit the exercise of this incident to the estate. If not, it must follow, from the ingrafting of this restriction in the act, that either the donation or the condition should be held void. In either event appellant's action must fail. But the act does not absolutely and in all respects restrict the grantee from alienating the land: it only restrains his doing so by sale or alienation during his lifetime. He certainly has the right to devise or bequeath it, as any other property which he owns. It results, as a necessary sequence, from the very nature of his estate, that his presumptive heir takes no estate, either contingent or vested, in the certificate or the land acquired under it in the lifetime of the donee. And we may just as well here say, that it was unquestionably within the power of the government to repeal the inhibition against sale or alienation, as by doing so it...
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