Hearne v. Gillett

• Decision Date: 10 June 1884
• Docket Number: Case No. 4898.
• Citation: 62 Tex. 23
• Parties: JOHN R. HEARNE v. SOLOMON L. GILLETT.
• Court: Texas Supreme Court

62 Tex. 23

JOHN R. HEARNE

v.SOLOMON L. GILLETT.

Case No. 4898.

Supreme Court of Texas.

May 13, 1884.

Jun. 10, 1884.

APPEAL from Robertson. Tried below before the Hon. W. E. Collard.

On May 12, 1880, Gillett brought this suit against Hearne and others, in the district court of Hamilton county, to recover an undivided interest of two thousand two hundred and eighty-nine acres out of the league of land patented to the heirs of Rhoda Kennedy, and situated in that county. By the agreement of the parties the venue was changed to Robertson county.

The defendants answered by general demurrer, general denial and not guilty. Hearne having acquired all the interest of his co-defendants, the suit was discontinued as to them.

The same land was in part covered by two old grants, that to Ruiz for four leagues, and that to Nixon for eleven leagues; this land was situated in Robertson county. About 1850 the Rhoda Kennedy certificate was located on that conflict, and parties went into possession under that location. Finally Columbus C. Hearne became the owner of that title, and, to aid him in resisting the Nixon title, he purchased of the Watrous heirs their interest in the Ruiz grant of about six thousand acres, and about $17,000 of the purchase money remained unpaid at the time of the execution of the agreement hereinafter mentioned. There was a suit in the United States circuit court at Austin by the Nixon heirs against Hearne. He having died, his widow, as executrix, was made a party, and a judgment recovered against her for the land. In the meantime a suit was pending against her in the district court of Robertson county, by the Watrous heirs, for the purchase money and foreclosure of the vendor's lien. To settle and adjust all their rights and conflicting claims, the heirs of Nixon, the heirs of Watrous, and Mrs. Hearne entered into a tripartite agreement, dated January 13, 1869. By that agreement Mrs. Hearne was to convey to the Watrous heirs, or whoever they might designate, a part of the land; and in accordance therewith she conveyed to Gillett two thousand two hundred and eighty-nine acres of the same. Afterwards Hearne floated the Rhoda Kennedy certificate and located upon the land in controversy, and a patent was issued therefor to the heirs of Rhoda Kennedy. Gillett claimed that two thousand two hundred and eighty-nine acres of that certificate passed to and vested in him by the deed from Mrs. Hearne, and that therefore he was entitled to that number of acres of the land in controversy.

This was the point at issue between the parties.

Trial without a jury, and judgment rendered in favor of Gillett for two thousand two hundred and eighty-nine acres of the land, and for partition, etc.Davis, Beall & Kemp, for appellant.

H. D. & F. H. Prendergast, for appellee.

No briefs on file for either party in this case.

WATTS, J. COM. APP.

An unlocated land certificate in this state is considered as personal property, and may be dealt with as such. Watkins v. Gilkerson, 10 Tex., 340;Evans v. Hardeman, 15 Tex., 480;Cox v. Bray, 28 Tex., 261;Stone v. Brown, 54 Tex., 334.

But after such certificate has been located it can no longer be considered as personalty, but is then merged into, and becomes part of, the realty.

In treating that question, Justice Moore, in Simpson v. Chapman, 45 Tex., 566, used the following language: “But when it is located it loses this character. It then attaches with the land, and becomes a chattel real, and can be assigned and transferred by parol no more than the land itself. Instead of being merely property of itself, it is, like a deed, the evidence of title to the land upon which it is located. And though its sale or assignment subsequent to location, if in writing, but not otherwise, may in equity be held to operate as a transfer of the land, it is the land and not the certificate which is the thing sold. The right to the certificate is an incident to and necessarily accompanies a transfer of the land.”

What is there said with reference to the subject is supported by a long line of decisions in this state.

By the express terms of the statute the location and survey of a valid land certificate constitutes such color of title as will support the defense of three years' limitation, and such title as will authorize the maintenance of the action of trespass to try title.

While the general rule that the certificate will pass by a conveyance of the land upon which it is located is undoubtedly true, still it would be competent for the parties to reserve the certificate from the operation of the conveyance, and by floating it again restore its character of personalty. But if there is no such reservation, then the located certificate will pass with the land to the extent that it is located thereon. It is not incumbent upon the party claiming under such a conveyance to show that the certificate did pass with the land, but the burden is upon the claimant to show that it did not.

Here it is claimed that the intention to reserve the certificate is plainly inferable from the language used in the second clause of the tripartite agreement, which is as follows: “on the execution of deeds of conveyance...