Goldsmith v. Herndon

• Decision Date: 01 January 1870
• Citation: 33 Tex. 705
• Parties: J. B. GOLDSMITH v. R. HERNDON AND ANOTHER.
• Court: Texas Supreme Court

33 Tex. 705

J. B. GOLDSMITH

v.R. HERNDON AND ANOTHER.

Supreme Court of Texas.

1870.

1. A headright certificate which was issued under the joint resolution of May 24, 1838 (Hart. Dig. art. 1895), to the “heirs or legal representatives” of a soldier who fell with Fannin at Goliad, in March, 1836, was not a gratuity or donation to such heirs or legal representatives, but was assets of the estate of the deceased soldier, and subject to be sold by his administrator for the payment of his debts.

2. The twenty-ninth section of the act of December 14, 1837 (Pas. Dig. art. 4150), is believed to be only declaratory of the right secured to citizens by the tenth section of the general provisions of the constitution of the republic, and to be a legislative indication of the persons considered citizens within the meaning of that section; and the joint resolution of May 24, 1838 (Hart. Dig. art. 1895), conferred no additional rights upon the heirs or legal representatives of “those who fell while under the command of or with Fannin, Travis, Grant and Johnson, in the spring of 1836,” but simply recognized pre-existing rights and prescribed evidence which should be sufficient to establish them. So, also, the act of February 11, 1850 (Hart. Dig. art. 2323), was only a re-acknowledgment of the pre-existing rights of those who fell with the commanders named, and a provision for the issuance of certificates to their heirs.

3. In this case judicial cognizance is taken of the historical fact that the first Georgia battalion was in Texas prior to the adoption of the constitution of the republic.

APPEAL from Johnson. Tried below before the Hon. J. J. Good.

This cause has been ably and persistently contested. The present is the third decision of it by this court, rehearings having been obtained after the first and second determinations of it. Upon each trial of it, however, the result has been the same, although Mr. Justice Lindsay, upon the second hearing of the case, delivered an able dissenting opinion.

Goldsmith, the appellant, was the plaintiff below. He derives his title from the sale made by the administrator, which was made early in 1840, before the passage of the act of January 14, 1841 (Pas. Dig. art. 1399), which prohibited sales of deceased soldiers' lands without consent of the heirs.

The appellees claimed under deeds made to them in 1859 by the heirs of Slater, the deceased soldier. It was admitted that these heirs were aliens at the time of the grant, and it does not appear that they ever became citizens of Texas.

A jury was waived in the court below and the cause submitted to the court, by whom judgment was rendered for the defendants, and the plaintiff appealed.

Wiston & De Normandie, for the appellant, cited the provisions of the constitution of the republic and of the several enactments pertinent to the question, and also the cases of Allen v. Clark, 21 Tex. 404;Harris v. Graves, 26 Tex. 577, and Soye v. Maverick, 18 Tex. 100.

Amzi Bradshaw and Hancock & West, for the appellees, cited Warnell v. Finch, 15 Tex. 163;Eastland v. Lester, 15 Tex. 100;Owen v. Shaw, 20 Tex. 81;Hornsby v. Bacon, 20 Tex. 556.

OGDEN, J.

This cause has been twice decided by this court, and a rehearing granted each time, and the cause is now submitted on additional argument and brief, both for appellant and appellee; and after a careful examination of the record and all the authorities at command, bearing upon the single question which we deem material to settle the rights of the parties, we have been unable to discover in either of the able and well digested opinions of this court, delivered in this cause on former occasions, any error sufficient to authorize a change in the general conclusion arrived at in either of those opinions.

That there is but one question presented in this cause for the decision of the court, is patent upon the face of the record, and admitted by counsel for appellant and appellee, namely: Was the headright certificate, for one-third of a league of land, issued by the board of land commissioners for Harrisburg county, on the twenty-sixth day of September, 1839, to the heirs of Randolph Slater, assets in the hands of the administrator, and subject to the payment of the debts of the deceased? It is not denied that if the certificate issued to the heirs of Slater, as his heirs, or issued to the heirs in the right of Slater, or issued in the discharge of some obligation due from the government to Slater during his life, then it became assets in the hands of Slater's administrator, and subject to his legal obligations. But if the grant was made directly to the heirs of Slater, as a voluntary gratuity or donation, because of the heroic deeds or great sufferings of the ancestor, or because of the loss sustained by the heirs, or for any other cause, then it became the absolute property of the heirs, and not assets of the estate. On an examination of the facts of this cause, we learn that Randolph Slater, to whose heirs the certificate now in question was issued, was a soldier under Col. J. W. Fannin, Jr., and was massacred by the Mexicans on the last of March, 1836, several days subsequent to the adoption of the constitution of the republic of Texas. That C. W. Buckley was, in 1839, appointed administrator of the estate of the deceased; that he, as administrator, obtained the certificate in question, which was issued to the heirs of Slater; that he sold the same, and that the appellant, John B. Goldsmith...