Hensel v. Kegan

• Citation: 15 S.W. 275
• Court: Supreme Court of Texas
• Decision Date: 26 January 1891
• Parties: HENSEL <I>et al.</I> v. KEGAN <I>et al.</I>

15 S.W. 275

HENSEL et al. v. KEGAN et al.

Supreme Court of Texas.

January 26, 1891.

Commissioners' decision. Appeal from district court, Haskell county.

A. C. Foster and Cockrell & Cockrell, for appellants. De Berry & Wheeler and Templeton & Carter, for appellees.

HOBBY, J.

The recitals in the patent to the league and labor of land in litigation, granted January 2, 1858, to H. L. Hensel and Thomas Keoley, assignees of B. F. Wood, show that the headright certificate was issued by the board of land commissioners of Nacogdoches county on February 1, 1838, and was transferred to said Hensel and Keoley on April 7, 1855. This was about five years after the death of Mrs. Wood, the wife of B. F. Wood. The appellants, who were plaintiffs below, brought this suit in November, 1887, claiming as the heirs of the assignees of the certificate, alleging ouster on January 1, 1887. The defendants, who are appellees here, disclaimed as to one undivided half of the land, and alleged that they had been in possession of one undivided half of the same since the institution of the suit. They claimed the land in the community right of their mother, Mrs. Wood. There was an absence of proof as to the circumstances under which the sale or transfer of the certificate to the assignees was made. The court found, among other facts, that the certificate was the personal property of B. F. Wood and the heirs of his deceased wife, Biba Ann Wood; and that, being community property at the date of her death, it could only be disposed of by Wood in settlement of community debts. The court also found that the legal title, by reason of the transfer above mentioned, vested in Thomas Keoley and H. L. Hensel, subject to the equitable right of the heirs of Mrs. Wood. The eighth conclusion of law found by the court was that the burden was on the plaintiffs to show that the facts existed which would have authorized the sale by B. F. Wood of the entire certificate. Judgment was rendered in favor of plaintiffs for an undivided half of the land, and that they take nothing by their suit against the defendants as to the remaining half. The plaintiffs appeal from this judgment.

Appellants claim that the court erred in the eighth conclusion of law, "because, having shown the legal title in themselves to the land, the burden of proof was on the appellees to establish a superior equitable title; and also because, after the lapse of more than thirty years, the law would presume that the facts existed which authorized B. F. Wood to dispose of personal property." It sufficiently appears, we think, from the record in this case, that the headright certificate for the league and labor of land was issued on the 1st day of February, 1838, by the board of land commissioners of Nacogdoches county to B. F. Wood, a married man; that it was the community property of his wife and himself, and was transferred by him to Hensel and Keoley five years after her death, — that is to say, in April, 1855, (she having died in 1850.) This suit having been brought by the plaintiffs in November, 1887, (and the answer of the defendants alleging their possession of the land to have been since the institution of the suit,) a period of more than 32 years has elapsed since the sale or transfer of the certificate by the survivor of the community. Although several questions are raised by the assignments of error, it appears to us that the disposition of this appeal depends upon a well-established principle of the law of evidence. The rule is familiar, and has been repeatedly recognized in our state, that the power to execute a deed will be presumed generally in ...