Hawkins v. Stiles

• Decision Date: 05 February 1913
• Citation: 158 S.W. 1011
• Parties: HAWKINS et al. v. STILES et al.
• Court: Texas Court of Appeals

158 S.W. 1011

HAWKINS et al. v. STILES et al.

Court of Civil Appeals of Texas. Austin.

February 5, 1913.

On Motion for Rehearing May 21, 1913.

Appeal from District Court, Ellis County; C. M. Smithdeal, Judge.

Action by Sam Stiles and others against Frank Hawkins and another. From a judgment for plaintiffs, defendants appeal. Reversed and rendered.

S. C. Padelford, of Cleburne, and G. C. Groce, of Waxahachie, for appellants. Langford & Chesley, of Hamilton, and Supple & Harding, of Waxahachie, for appellees.

RICE, J.

The land in controversy herein was within the Mississippi and Pacific Railroad reservation, and lies near Midlothian in Ellis county, consisting of two surveys of 160 acres each, patented to George Stiles, one as the assignee of J. T., and the other as the assignee of W. W. Rawls, by virtue of his having purchased whatever rights the said Rawlses may have been entitled to as actual settlers thereon under the act of August 26, 1856, opening up said reservation to settlement, and the payment by him of the stipulated amount due the state. We think the evidence is sufficient to show that both of the Rawlses, prior to their transfer of whatever rights they had therein to George Stiles, were actual settlers thereon, and had caused said respective tracts to be surveyed and the field notes thereof returned to the General Land Office as prescribed by said act, but had not paid the 50 cents an acre due the state, and by the terms of said transfers said Stiles was required to pay same, together with the land office fees. The transfers above mentioned were made to Geo. Stiles under date of January, 1858, and he was married to Zilpah Stiles on the 25th of November of the same year, and the lands were patented to him as assignee of said parties on September 13, 1859, and November 23, 1859, respectively, he having paid at said times the purchase price thereof to the state, to wit, the sum of 50 cents per acre and the patent fees. This payment was made out of the community funds of himself and wife. After marriage he and his wife made their home upon said tracts of land, where they continued to live until his death, which occurred in 1886. There were no children born to this union, and he left no will. His widow, in about two years thereafter, married one Mullins, who died before she did, leaving no children, and upon her death in 1909 she left a will, which was duly probated, devising these two tracts of land to B. F. Hawkins and Geo. Stell, appellees herein; and this suit was brought on January 15, 1910, by Sam Stiles, a brother, and Mrs. Jane Merrill, Mrs. Nancy Kemp, and Mrs. Sarah Rhodes, all femes sole, sisters, and Sam Henry Stiles, a nephew, the son of a deceased brother, originally joined as defendant, but subsequently became a plaintiff, as plaintiffs, against said Hawkins and Stell in trespass to try title to recover an undivided one-half interest therein, for partition thereof, and for rents. Defendants answered by pleas of not guilty, the statutes of three, five, ten, and four years' limitation as to the land, as well as stale demand and two years' limitation as against the rents. There was a jury trial, resulting in a verdict and judgment for plaintiffs for their one-half interest in the land as claimed by them and for rents, from which this appeal is prosecuted.

It is clearly shown by the evidence that during the marriage of George and Zilpah Stiles they both considered and treated this land as community property, and made a joint will under such belief. While there are many interesting questions raised by this appeal, which are fully discussed in briefs of counsel, and presented upon argument, we will, however, pretermit a discussion of all of them except the one raised by the fifth assignment, which complains of the action of the court in refusing to instruct a verdict in behalf of appellants, and which, if decided in their favor, is determinative of this appeal, rendering unnecessary a consideration of the other questions presented.

The contention of appellants is that the land in question was the community property of Geo. Stiles and his wife, and that upon his death, without issue, his wife surviving, it became her separate property, and she had a right to devise the same to them as was done, and that plaintiffs, therefore, had no interest therein; while the contention of appellees is that under the uncontroverted evidence in the case the land in controversy belonged to the separate estate of George Stiles, and at his death descended, one moiety to his surviving wife and the other to his collateral heirs, for which reason they were entitled to recover. The difficulty in deciding the question at issue is in determining when the title to the land in controversy vested, or, to be more explicit, to determine the inception of the title; because if the transfer from the Rawlses to Stiles vested in him title, or an incipient title, then the contention of appellees is well taken and should prevail. But is this true? The land was embraced in the Mississippi and Pacific Railroad Reservation. See 4 Gammel's Laws of Texas, p. 7 et seq., which land was opened to settlement by act of August 26, 1856 (Gammel's Laws of Tex. vol. 4, p. 474), which provides that "from and after the first day of January, 1857, what is known as the Mississippi and Pacific Railroad Land Reserve shall be subject to location and sale, as hereinafter prescribed." The second section of said act provides that all settlers on said land are entitled to purchase not exceeding 160 acres thereof at 50 cents per acre, upon the settler's having the land surveyed and the field notes returned to the General Land Office by the 1st day of January, 1858, as well as the payment of said 50 cents per acre therefor by said time. It is further provided by section 3 thereof that the holder of any genuine land certificate, bounty warrant, headright certificate or railroad certificate, shall, after the 1st of March, 1857, have a right to locate same within said reserve. And by section 4 the land commissioner, after the 1st of March, 1857, was required, upon the request of any party, to issue land scrip at 50 cents per acre, which might be located within said reserve, etc. This act was amended November 28, 1857, so as to extend the time of payment to October 1, 1859, but providing that the field notes should be returned by April 1, 1858. It was thereafter amended so as to still further extend the time for filing field notes until the 1st of January, 1859. See Paschal's Digest of Laws, vol. 1, pp. 844-846.

It is appellants' contention that no title vested in Geo. Stiles by reason of the transfer from the Rawlses, and that this act did not constitute the beginning or inception of his title (citing in support thereof Woods v. Durrett, 28 Tex. 430; Webb v. Webb, 15 Tex. 274; Wilkinson v. Wilkinson, 20 Tex. 237; Palmer v. Chandler, 47 Tex. 332; Williams v. Finley, 99 Tex. 468, 90 S. W. 1087; Mills v. Brown, 69 Tex. 244, 6 S. W. 612; Lamb v. James, 87 Tex. 486, 29 S. W. 647; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S. W. 410, 45 S. W. 554; Simpson v. Oats, 102 Tex. 186, 114 S. W. 105; Gafford v. Foster, 36 Tex. Civ. App. 56, 81 S. W. 63; and Clark v. Altizer, 145 S. W. 1041), while appellee contends that by reason of the transfer from the Rawlses to Geo. Stiles, they, having previously surveyed the land and returned the field notes to the General Land Office, gave to him an inchoate title, which was subsequently perfected by payment of the purchase money to the state, and therefore he had such title, in contemplation of law, at the very time of such transfer, for which reason the land became his separate property, one-half of which, under the law, they were entitled upon his death to inherit, under the facts in evidence, in support of which they cite Welder v. Lambert, 91 Tex. 510, 44 S. W. 281; Creamer v. Briscoe, 101 Tex. 491, 109 S. W. 911, 17 L. R. A. (N. S.) 154, and note, 130 Am. St. Rep. 869; Hasseldenz v. Dofflemyre, 45 S. W. 830; Porter v. Chronister, 58 Tex. 53; Norton v. Cantagrel, 60 Tex. 538; Auerbach v. Wylie, 84 Tex. 615, 19 S. W. 856, 20 S. W. 776.

Under the authorities last cited, if it is admitted that the inception of the title took place at the time of the transfer to Geo. Stiles, then the subsequent payment, though made after his marriage, will relate back to the date of said transfer, and constitute the land his separate property, subject to a charge in favor of the community for reimbursement; but this is not admitted, and is the point at issue. In discussing the question as to what interest was conveyed by the Rawlses' deeds, and in reviewing the cases cited by appellant, we quote from brief of counsel for appellant as follows:

"In Woods v. Durrett, supra, it was held that a settlement within this reservation before it was opened for settlement conferred no right, and that the opening act conferred none, except in accordance and on compliance with its terms.

"Webb v. Webb, supra, is a case where a man and his wife came to Texas in January, 1833. The husband, being entitled to a headright under the colonization laws as the head of a family, selected his land in his wife's lifetime, but the extension of the title was delayed by the refusal of the empressario to assent to it until the wife died. After her death the objections were withdrawn and the title was extended. It was held that the land was the separate property of the husband, because up to the wife's death nothing had been done upon which an equity in favor of her heirs could attach to the land, not even proof of right under the colonization laws having been made. In that case while the colonist, as the head of the family, was entitled to a headright, he had done nothing within the lifetime of his wife to bind the government to grant him any particular tract, though he had selected the tract he desired, and presumably had advised the government officials of...