Cannon v. Murphy

• Decision Date: 31 October 1868
• Parties: JAMES B. CANNON ET AL. v. HENDERSON MURPHY ET UX.
• Court: Texas Supreme Court

31 Tex. 405

JAMES B. CANNON ET AL.

v.HENDERSON MURPHY ET UX.

Supreme Court of Texas.

October, 1868.

Where C. and wife settled, as colonists, upon a tract of land in Peters' colony, and made improvements and continued to reside upon it until the death of the wife, in 1848, they acquired such property in the land as created a community interest; and upon the death of the wife, her interest descended to her children, as her heirs. Pas. Dig. art. 4642, note 1049. 15 Tex. 274;20 Tex. 237;28 Tex. 192, 383.

The title at the death of the wife being inchoate, and the husband, after her death, having perfected the title, by obtaining the certificate of the colony commissioner, and having located upon the land and surveyed, he held the title as a “married man,” in trust for himself and the heirs of the wife; and the purchaser of the whole from the husband took subject to the descent cast upon the children. Pas. Dig. p. 76, § 1, note 215; arts. 813, 814, 818, notes 400, 401.

Where the questions of improvements and the value of the use and occupation were left to the jury, which found for the plaintiff, but found neither good faith nor value of use and occupation, and the question of title was a pure matter of law, the court refused to disturb the verdict. Pas. Dig. arts. 5300, 5307, notes 1147, 1153.

APPEAL from Denton. The case was tried before Hon. W. T. G. WEAVER, one of the district judges.

The record is voluminous, but the facts are sufficiently indicated in the opinion of the court and the preceding syllabus.

Joseph Bledsoe, for appellant, cited Webb v. Webb, 15 Tex. 274;Causici v. La Costa, 20 Tex. 269; Cowan v. Hardeman, 26 Tex. 216; Randon v. Barton, 4 Tex. 289.

Throckmorton & Brown, for appellees. I. Upon the death of the mother there was such an equity as descended to the children. Williamson v. Willerson, 20 Tex. 237.

[II. They cited the colonial laws to prove the character of the property.]

LATIMER, J.

The evidence in this case shows that Alexander E. Cannon and his wife, Elizabeth Cannon, accompanied by one of their two children, the other child having been left in the state of Missouri, emigrated to Texas, and settled within the limits of Peters' colony, in the year 1846, on the land in controversy in this suit. That they continued to reside on the land until the death of Mrs. Elizabeth Cannon, in September, 1848, and that after the death of Mrs. Cannon, Alexander E. Cannon commenced to reside on the land, and received from Thomas William Ward, commissioner, under the act of January 21, 1850, a certificate, as a married man, for six hundred and forty acres of land. The certificate was granted by Commissioner Ward, on the 11th of April, 1850.

The certificate recites “the land claimed by the aforesaid colonist (meaning Alexander E. Cannon) has been surveyed by the colony contractor, but cannot be herein described, there being no maps or field-notes of the colony in the possession of the commissioner; therefore the said Cannon is entitled to have his land surveyed by the county or district surveyor.”

It is not shown at what precise time Cannon ceased to reside upon the land, but in November, 1850, he made a power of attorney to one Lloyd, authorizing him to convey the land to Henderson Murphy, one of the appellants.

The land was surveyed for Alexander E. Cannon on the 2??th day of March, 1850, upon the certificate granted by Commissioner Ward.

This suit was brought by James B. Cannon and Elizabeth Jane Cannon, the children of Alexander E. Cannon and Eliza Cannon, claiming one-half of the land in right of their mother, Eliza Cannon, who died on the land, as before stated,...