Hensel v. Kegans

• Decision Date: 28 November 1894
• Parties: HENSEL et al. v. KEGANS et al.
• Court: Texas Court of Appeals

28 S.W. 705

HENSEL et al. v. KEGANS et al.

Court of Civil Appeals of Texas.

November 28, 1894.

Appeal from district court, Haskell county; C. P. Woodruff, Judge.

Trespass to try title by H. L. Hensel and others against B. M. Kegans and others. From a judgment for plaintiffs for a one-half interest in the land, only, they appeal. Modified.

A. C. Foster, for appellants. Carter & Lewright and H. G. McConnell, for appellees.

Conclusions of Fact.

STEPHENS, J.

In the year 1886 appellees (defendants below) took possession of the league and labor of land in controversy, situated in Haskell county. November 10, 1887, appellants filed their suit in trespass to try title, to eject them. Failing to recover the entire tract, they appealed to the supreme court, and obtained a reversal of the judgment against them. 79 Tex. 347, 15 S. W. 275. Upon a second trial, before the court without a jury, their recovery was again limited to an undivided half interest; hence this appeal.

The conclusions of fact upon which the last judgment was entered, and which we approve, are as follows: "(1) The patent to the land in controversy issued to Thomas Kealy and H. L. Hensel, as assignees of B. F. Wood, on January 2, 1858, by virtue of head-right certificate issued to B. F. Wood on February 1, 1838, and the certificate was transferred to Thomas Kealy and H. L. Hensel by Benj. F. Wood on the 7th day of April, 1855. (2) S. M. Vanfleet, S. A. Kealy and T. H. Kealy are the only heirs of Thomas Kealy, who moved from Texas in 1872 or 1873 to the state of Maryland, and died in said state of Maryland in 1879. (3) Headright certificate No. 4, being same certificate above mentioned, was issued to Benj. F. Wood by the board of land commissioners of Nacogdoches county, Texas, on February 1, 1838, covering one league and labor of land. (4) Biba Ann Wood, who died in April, 1849, in Alabama, was at the date of the Declaration of Independence, March 2, 1836, and at the date of the issuance of said certificate, the wife of Benj. F. Wood, and resided with him in Texas from 1834 to 1839. (5) Defendants Sallie S. Towles, Louisa G. West, A. E. Walker, Willie Pollard, Jose Lance, J. C. Alexander, T. J. Alexander, J. A. Alexander, B. F. Alexander, and G. J. Alexander are the only legal heirs now living of Biba Ann Wood, deceased. (6) H. L. Hensel, plaintiff, and one of the assignees of Benj. F. Wood of said certificate, had no actual notice that Benj. F. Wood was ever a married man, and that his wife, Biba Ann Wood, had died prior to the transfer of said certificate. There is no evidence to show whether Thomas Kealy, the other assignee of Wood, had any such notice or not. (7) There were no facts which authorized the sale and transfer by Benj. F. Wood of his entire head-right certificate. (8) Plaintiffs and those under whom they claim paid all the taxes on the land in suit from 1859 to 1891, both years inclusive. They also paid all the other expenses of locating the land and obtaining title thereto. (9) It was unsafe to settle in Haskell county prior to 1879, because of the attacks and incursions of hostile Indians. (10) That H. L. Hensel and Thomas Kealy paid $1,000 cash for the certificate in 1855."

Conclusions of Law.

1. The court having found upon sufficient evidence that the facts warranting the disposition by the survivor in community of the common property did not exist when Benjamin F. Wood transferred the certificate in question, appellants acquired by that transfer only his half interest therein.

2. In purchasing this head-right certificate, appellants and those under whom they claim took it with constructive notice of the rights of appellees. Hill v. Moore, 85 Tex. 335, 19 S. W. 162.

3. In avoidance of the equitable title thus derived by appellees as heirs of Biba Ann Wood, deceased, to a moiety of the land, appellants set up and urged the doctrine of stale demand, but we are of opinion that this title was available to them as defendants in the action to protect their possession. True, they set up this title in a cross action, and prayed a recovery thereon, but this did not prevent them from relying upon it under their plea of not guilty. Equitable defenses are divided into two classes, — the one including those equitable rights which confer affirmative relief; the other those which are purely defensive, and which simply operate to bar the plaintiff's action. 3 Pom. Eq. Jur. §§ 1367-1374. So long as the defendant can assert an equitable title without invoking any affirmative relief, we are of opinion that the doctrine of stale demand does not properly apply. It is a doctrine designed to promote diligence on the part of suitors, and to discourage laches, by making it a bar to a recovery. 1 Pom. Eq. Jur. §§ 418, 419. As said by the supreme court of the United States in Sullivan v. Railroad Co., 94 U. S. 806: "Nothing can call forth this court [court of equity] into activity but conscience, good faith, and diligence. When these are wanting, the court is passive, and does nothing." This distinction seems also to have found expression in the opinions of our supreme court. In Cox v. Bray, 28 Tex. 260, in holding that there was error in excluding, on the ground that it was stale, proof of an equitable title interposed as a defense against plaintiffs, claiming as the heirs of the patentee, Chief Justice Moore says: "The second objection to this testimony might be urged with much propriety if the party by whom it is presented was the actor in the case; in other words, if it were relied on as a sword for attack, instead of a shield for defense"; and, further: "That a party has chosen to risk the security of his title upon evidence of a transitory and...