Benjamin Garvin's Adm'rs v. Stover

• Decision Date: 01 January 1856
• Parties: BENJAMIN GARVIN'S ADM'RS v. JOHN STOVER.
• Court: Texas Supreme Court

17 Tex. 292

BENJAMIN GARVIN'S ADM'RS

v.JOHN STOVER.

Supreme Court of Texas.

1856.

See this case for circumstances under which the judgment was reversed because of the refusal of the court to grant a new trial on the ground that the appellee, who was a colonist in Peters' colony, had abandoned his settlement.

Appeal from Ellis. Tried below before N. M. Burford, Esquire, appointed by the parties.

Moore and Cravens, for appellants. The appellee quietly acquiesced in Garvin's right to the land, and set up no claim to it until some time after the passage of the act of the 10th of February, 1852, when, on the 28th of May of that year, he first set up a claim to the land by filing a claim for it with Hedgecoxe, the agent of the colony contractors under said act, by which time, without ever having been within the colony, I infer from the cases heretofore decided in this court (Overton v. Crockett, 12 Tex. 509; Patton v. Evans, Austin term, 1855), there had grown up in the minds of many an erroneous opinion that the third section of the act of 1850 (Hart. Dig. art. 2231) gave whomsoever might have first actually occupied a section of land within the colony, an unconditional right to the same, whatever may have been his acts subsequent to his settlement or that of others superinduced by his. The erroneousness of this opinion is, however, shown by the decisions of this court in the cases referred to, and they, I think, fully show that the appellants, under the law and evidence in this case, are entitled to the land in controversy, as the facts make it evident that the appellee left the land in the fall of 1847, and made no subsequent attempt to resume possession of it, and set up no claim to it until the 28th day of May, 1852.

I also submit that the only proper construction to be given the act of 1850 is, that of a law to take effect in presenti, and that consequently the rights conferred upon the oldest settler (as is clearly manifest by the language of the whole act, and particularly by the 3d, 4th and 7th secs. Hart. Dig. arts. 2231, 2232 and 2235) are bestowed by the bounty of the state upon the oldest settler upon the land, at the time of the passage of the act; or at most, before one who at the passage of the act was not in the actual occupation of the land, can claim the benefit of the same, he must show that he has such existing and continuing rights that in the eye of the law he would be regarded as an actual settler upon the land at that time.

If this act which was introduced to secure to all actual settlers the land to which they are entitled as colonists should be so construed as to give vitality to dormant and forgotten equities, growing out of temporary settlements, and the like temporary removals, leaving the intention with which each settlement and removal was made to be determined by the court, this act would prove one to unsettle, instead of to secure colonists in their titles to their land, by sowing broadcast throughout the colony seeds of litigation which in due season would fructify and bring forth their legitimate fruit in lawsuits and perjuries. These considerations doubtless operated upon the mind of the legislature and induced them so to frame the act as to give the land to the oldest settler, then having a settlement upon it, thus establishing a rule, readily understood and easily carried into effect, especially as the grant for the particular section of land given by the act came from the bounty of the state and not in satisfaction of any equities that any one of the colonists had acquired to it against the government.

J. J. Good, for appellee. 1st. Stover being the first settler upon the land in controversy, is entitled to it. (Hart. Dig art. 2231; Overton v. Crockett, 12 Tex. 509.) 2d. Garvin, having taken possession as the agent or tenant of Stover, cannot dispute the title of Stover. (Adams on Eject. 247, by Tillinghast; 2 Greenl. Ev. sec. 305.)

3d. Stover's declarations and arrangements at the time of his visit to Arkansas and his subsequent return are parts of the res gestæ, and show that he had not abandoned his claim. (2 Greenl. Ev. sec. 108.)

4th. As the court below improperly rejected the declarations made by Stover at the time of leaving for Arkansas and on his return, explanatory of his absence, this court will examine into them in making their decision.

J. M. Crockett, also for appellee. The judge below refused to admit as evidence the declarations of Stover on the eve of his departure, on a journey to another state, to show his intention to return. This was error and is the subject of appellee's bill of exceptions. (See 1 Greenl. Ev. sec. 108; Part 1st Cowen & Hill's Note to Phil. Ev. pages 218 and 220. And this doctrine applied in the State v. Skidmore, 5 Tex. 469, and the same recognized in the Heirs of Hollman v. Peebles, 1 Tex. 689.)

Enough, however, of his declarations were admitted to show clearly (when coupled with his acts) an intention to return. (See authorities above, and Hardy v. DeLeon, 5 Tex. 235-6;McIntyre v. Chappell, 4 Tex. 197.)

He left his place and other property in the care of Garvin, who undertook to gather his crop and protect his place and property until his return, and now he cannot dispute Stover's title. (See Hardy v. De Leon, 5 Tex. 243.)

If the statement of facts does not show that a previous suit had been instituted by Stover against this same party for this land, and which was pending for several terms of the district court, I will be permitted to inform this court that such is the fact. It, of course, would constitute no material fact of Stover's title, but may remove or prevent disfavor in the minds of the court, on account of laches.

LIPSCOMB, J.

This was a suit for land in Peters' colony, and the controversy was on the priority of settlement, in which the main question was whether the appellee, who was the plaintiff in the court below, had or not abandoned his first settlement, on which he claimed right of preference. The law on the question seems to have been correctly given by the court, under the decisions of this court in Overton v. Crockett (12 Tex. 509), and the case of Patton v. Phebe Evans, Guardian, decided at the last term at Austin, and not yet reported (15 Tex. 363); and, on the evidence, the jury found a verdict for plaintiff, negativing the fact of abandonment.

There was an error in the charge, if applied to evidence offered by the defendant, but not when applied to the evidence offered by the plaintiff, as it was in this case. The plaintiff offered to prove his own declarations and conversations when about leaving his home, to prove that he intended to return, and to repel the presumption, arising from his leaving, that it was an abandonment of his settlement, which was properly overruled by the court. But had the declarations of an intention to abandon been offered against him by the defendant, it would have been certainly competent testimony. The defendant offered no such evidence, and he could not avail himself by his bill of exceptions to the charge of the court on rejecting the evidence offered by the plaintiff.

The propriety of overruling the motion to set aside the verdict of the jury requires more consideration. It presents the question whether the verdict is sustained by the evidence. The evidence as presented by the statement of facts outside of the documents is meager and indefinite. The documents show that the appellant and appellee both procured their certificates from the commissioner, Ward, on the same day, under the act of 21st January, 1850; that both certificates issued on the 24th May, 1850, and for want of sufficient evidence of location and survey, required a survey to be made by the deputy or county...