Boone v. Hulsey

• Decision Date: 20 December 1887
• Citation: 9 S.W. 531
• Parties: BOONE <I>et al.</I> <I>v.</I> HULSEY <I>et al.</I><SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

Page 531

9 S.W. 531

BOONE et al.

v. HULSEY et al.¹

Supreme Court of Texas.

December 20, 1887.

Appeal from district court, Fannin county.

Action by Margaret Boone and J. W. Boone, her husband, Olive T. Wainscott and Thomas J. Wainscott, her husband, and Jacob H. Humphrey, against John Hulsey, Harvey B. Cobb and others, to recover lands of which Daniel Davis died seized in 1838. Judgment for defendants, and plaintiffs appeal.

White & Plowman, for appellants. Chenoweth & Clark and Maxey, Lightfoot & Denton, for appellees.

MALTBIE, J.

Said cause having been referred to the commission of appeals, we will consider such questions as are deemed necessary to dispose of the appeal from the judgment of August 25, 1885. But as neither the transcript nor appellants' brief is made out in accordance with the rules, and as there are 38 distinct assignments of error insisted upon, and we having concluded to reverse the case, we will not undertake to follow said assignments or group them, but will only consider the leading points raised, which are as follows: (1) Was Margaret Boone the wife of Daniel Davis, or was she so regarded in the neighborhood in which she lived? (2) Was the certificate by virtue of which the land in controversy was acquired issued to Davis in consequence of his marriage, or reputed marriage, with the said Margaret, and, if so, was it necessary, in order for the said Margaret to be entitled to an interest in said land, that she should have believed, at the time she was married to Daniel Davis, that her former husband, John Bascus, was dead, and to continue in such belief during her cohabitation with said Davis? (3) If the said Margaret was entitled to a community interest in said land, did she, after the death of said Davis, either while single or when married to a subsequent husband, enter into any such agreement or compromise with the administrator of Davis as would divest her of the title to said land, or estop her from asserting the same? There is no doubt but that Margaret Bascus was in fact married to Daniel Davis in 1833 or 1834 by an alcalde named Raines, in Nacogdoches, and that they lived together as husband and wife from then till the death of Davis, in 1839, and that they lived on the land in question for two or three years before Davis' death. There is but little doubt but that John Bascus, the former husband of Margaret, was living at the time of her marriage with Davis. There are circumstances from which it might be inferred that Margaret did not believe herformer husband dead at the time of her intermarriage with Davis. The evidence was conflicting whether Margaret was generally reputed to be the wife of Davis in the community where they resided. Some of the witnesses say that she was considered his mistress, and regarded as the wife of Bascus. The board of land commissioners of Fannin county, on the 2d of March, 1838, found that Daniel Davis arrived in the county in 1834, and is a married man, and issued him a head-right certificate for a league and labor, by which the land in dispute was acquired. Under this state of facts the court below charged the jury as follows: "If a marriage was solemnized between the said Daniel Davis and plaintiff Margaret, at any time before 1835, by Emory Raines, acting as alcalde, and at the time her former husband was dead, or she honestly believed him dead, then I charge you that for the purposes of this suit they were lawfully husband and wife, and, if they continued to live and cohabit together as such husband and wife till he acquired the league and labor certificate under which the land in controversy was located and patented, then the said Margaret, as to such land, would be entitled to all of the rights of a lawful wife. If, however, at the time such marriage was solemnized, the former husband of said Margaret was living, and she knew it, or if she did not believe him to be dead, then such marriage was illegal, and she would acquire no right to the land in controversy, and, if you so believe, you will find for defendants." This was excepted to, and assigned as error.

The board of land commissioners who issued the certificate to Daniel Davis were a legally organized tribunal, appointed under the constitution and laws of the republic of Texas, to determine all questions submitted to them in reference to what persons were entitled to land, and how much each applicant was entitled to; single men being entitled to one-third of a league, and married men to a league and labor. The land board of Fannin county did adjudge that Daniel Davis was a married man, and issued a certificate to him for a league and labor of land. Said board may have found that Daniel Davis was married, on account of his relations with the said Margaret. If so, it was a judicial act, and, the proper authorities having issued a certificate and patent to the land on account of the marriage, and in part for the benefit of the said Margaret, the courts cannot in this suit re-examine the question, and determine that the said Margaret, at the time she intermarried with Davis, did not believe that her former husband was dead, and thus deprive her of the bounty conferred by the republic after a lapse of more than 40 years. Babb v. Carroll, 21 Tex. 766; Burkett v. Scarborough, 59 Tex. 495, and cases cited. There is believed to be a marked distinction in cases like the one at issue — where a board of land commissioners, acting as a court, has determined an applicant for land to be a married man, and the woman living with him to be his wife, and awarded him a certificate as such married man — and cases arising under the Spanish law, — where a woman, not knowing her former husband is living, married, and the parties during the cohabitation acquired property. In such case, upon the dissolution of the marriage, the law, in its leniency on account of the woman's ignorance of the existence of a former husband, considered her a putative wife, and entitled to one-half of the gains of such marriage, when, if at the time of the second marriage she had known of the existence of her former husband, the connection would have been adulterous, and she would not have been entitled to any of the property acquired during the marriage, as held in Smith v. Smith, 1 Tex. 621, and Lee v. Smith, 18 Tex. 145, 146. In that class of cases the wife was permitted to take under the liberal laws of Spain, but could not do so under the common law, when courts were called upon for the first time to pass upon the status of the wife after the dissolution of the marriage. In the former class of cases the claim is based upon the decision of a land board. By its decree, the property was created and called into existence, and the rights of parties thereto established. Appellants asked an instruction embodying substantially the views herein expressed, which was refused, and has been assigned as error. In the giving of the instruction hereinbefore complained of, and in refusing the one requested, we think there was error.

The court further charged the jury as follows: "I charge you that if the plaintiff Margaret Boone had a settlement with the administrator of Daniel Davis, and the said Margaret Boone agreed to and did receive certain personal property belonging to said estate in settlement and satisfaction of her interest in the Daniel Davis league, — the land in controversy in this suit, — then she is not entitled to recover in this suit; and if you so believe from the evidence, you will find a verdict for the defendants against the said Margaret Boone." This charge is also assigned as error. If Margaret Boone made a settlement with the administrator of the estate of Daniel Davis, in which she received personal property belonging to said estate in lieu and satisfaction of her interest in the land in controversy, and acquiesced in said settlement until the institution of this suit, she would be estopped from disputing its validity; and it would make no difference whether she was single or married, or whether the settlement was or was not in writing, or whether the statute of frauds had or had not been enacted in Texas. Stephens v. Shaw, 4 S. W. Rep. 458. During the progress of the trial defendants read in evidence to the jury the deposition of Martha A. Merrill, as follows: "I don't know that Margaret did live with Joe Guest after Davis' death, but it was the common understanding that she did; and there was much talk in the neighborhood about the troubles of the Guest family caused by him living with the plaintiff Margaret." Plaintiff objected to the same as illegal and hearsay. The court overruled the objections, and admitted the evidence, and plaintiff excepted and tendered his bill of exceptions, which was approved by the court, and now assigns the said ruling in admitting the said testimony as error. The objection should have been sustained. The evidence was clearly illegal, and well calculated to prejudice the jury against the plaintiff. There is other evidence in the record of a similar character, admitted over plaintiff's objections, which is not deemed necessary to notice further in this opinion, as it will of course be governed by the rule above announced.

Appellees seek to affirm the judgment — First, because they allege that appellants are bound by the statute of limitations of three, five, and ten years; but the undisputed evidence shows that appellant Margaret Boone was married to I. W. Boone in 1841, and was still under coverture at the trial of this suit, and that at the time of her marriage Daniel Davis' administrator was in the possession, and continued in possession, of the land for some time thereafter. Second. That appellees have been in the adverse possession of the land for 35 years, paying taxes, etc., and that appellants seek to recover on an equitable title, which has become a stale demand, and is bound by lapse of time. But appellants in fact claim as the widow and heirs of Daniel Davis, and,...