Babb v. Carroll

• Decision Date: 01 January 1858
• Citation: 21 Tex. 765
• Parties: ELIZABETH BABB AND OTHERS v. GEO. CARROLL AND OTHERS.
• Court: Texas Supreme Court

21 Tex. 765

ELIZABETH BABB AND OTHERS

v.GEO. CARROLL AND OTHERS.

Supreme Court of Texas.

1858.

Where a man and woman emigrated to Texas in 1835, and from that time to the death of the man, in 1837, lived and cohabited together and passed themselves, and were reputed as husband and wife, lands acquired by the husband as a colonist, are community property between them to the exclusion of a wife elsewhere. 24 Tex. 149.

A certificate issued to a man as the head of a family, inures, so far as community rights are concerned, to the family recognized and admitted as such, and for whose benefit it was intended; and our courts have not, years afterwards, authority to look to foreign countries to ascertain whether the husband may not have left a family elsewhere.

In granting a certificate it was the duty of the commissioners to inquire whether the party applying had a family in Texas, and having determined the fact it is not open to subsequent investigation after the issue of patent or even before.

The fact that the certificate was issued to the heirs of the husband is of no consequence. The right to the land accrued upon emigration.

Under the practice of the board of land commissioners and the district courts the date of the purchase of a claim to a headright did not affect its validity.

Under the law in force in Texas in 1837, the surviving husband or wife were under no circumstances heirs of the deceased, except in cases where the survivor was poor and the deceased was rich.

Error from Collin. Tried below before Hon. N. M. Burford.

Trespass to try title.

David E. W. Babb, by virtue of whose emigration a certificate for a league and labor of land was issued to his heirs, was married to Elizabeth Babb, one of the plaintiffs, in 1807, in the state of Tennessee; the other plaintiffs are the legitimate children of said David and Elizabeth. In 1829, David Babb abandoned his wife Elizabeth, and after living adulterously for several years with one Eda Collier, alias Hardy, in 1835 he came with her to Texas bringing also her son by a former adulterous connection, a youth about fourteen years old, and settled in the present limits of Red River county. Said David Babb and Eda lived together as man and wife until the death of the former, which occurred in 1837. It appeared in evidence that Eda well knew that Babb had a wife and family at the time she lived with him, both before and after coming to Texas, and that she was never married to him. The certificate was issued in 1838 to the heirs of Babb and recommended subsequently as genuine, by virtue of which the land in controversy was patented in 1845.

The defendants claimed one-half of the land through R. M. Hopkins, for which Babb in his life-time had executed to said Hopkins a bond for title, and the other half by purchase from the said Eda Babb, or Collier, and her son.

There was a verdict and judgment for defendants.

S. H. Morgan, for plaintiffs in error.

J. T. Mills, for defendant in error.

HEMPHILL, CH. J.

The first question is, was Mrs. Eda Babb, or Eda Collier, entitled to the half of the land in controversy? This must be answered in the affirmative. At the time of the emigration of David and Eda Babb to Texas, in 1835, and at the declaration of independence in March, 1836, and to the death of David Babb in 1837, they lived and cohabited together and passed themselves and were reputed by their neighbors as man and wife. There is no proposition more clear or indisputable than that grants of lands to heads of families were made on the supposition that the family was a Texas and not a foreign family; that the family was in fact in Texas, and as such was the meritorious consideration of the grant. And although, by construction, the rigor of this provision has been relaxed to the extent that where an applicant has a fixed domicile in Texas, having broken up his domicile elsewhere, he shall not lose his right to a certificate, or grant, from the mere isolated fact that the family was not here at the accrual of the right, or at the time of the application for the grant. See Young's case in Dallam and the Skidmore cases in the Texas reports. Yet it has never been imagined that when there was a family in Texas recognized and admitted as such, and being the very objects that were the consideration of the grant and for whose benefit it was intended, the courts had authority, years afterwards, to look to foreign countries to ascertain whether the husband, etc., may not have left a family elsewhere. The family ought to have been here in fact, and in contemplation of law was here to authorize the grant, and if there were a family here at the accrual of the right to the grant, the members of that family, to the extent of the community right of the wife, or reputed wife, must take to the exclusion of claimants elsewhere, who in fact, formed no part of the family contemplated by the law as the proper recipients of the bounty of the government.

The evidence is very conclusive that David and Eda Babb were reputed and treated in their social relations as man and wife. There cannot be a shadow of doubt that, as the head of the family thus organized, David was regarded as entitled, and his heirs through him as entitled, to the grant, and on his merits and rights as the head of this family the grant did issue. If David was entitled to a grant at all, it was as the head of this family, and not because he had a family in Tennessee with which, in fact, this government had no concern, and as the family here was the moving consideration of the grant, the wife was entitled on general rules and on the principles of our previous decisions to a community interest in the land.

It was for the commissioners to inquire whether David and Eda constituted a family in Texas at the Declaration of Independence, and the fact having been determined is not open to subsequent...