Hezekiah Walters' Heirs v. John G. Jewett's Heirs

• Decision Date: 31 October 1866
• Citation: 28 Tex. 192
• Parties: HEZEKIAH WALTERS' HEIRS v. JOHN G. JEWETT'S HEIRS.
• Court: Texas Supreme Court

28 Tex. 192

HEZEKIAH WALTERS' HEIRS

v.JOHN G. JEWETT'S HEIRS.

Supreme Court of Texas.

October, 1866.

A husband and wife with their infant children emigrated to Texas in 1835, and thereby became entitled to their headright league and labor of land, under the 10th general provision of the constitution of the republic. In January, 1837, before obtaining their certificate, the husband sold and made conveyance of one-half of the headright claim. In December, 1837, the wife died; and in February, 1838, the surviving husband sold the remaining half of the headright claim to the same vendee, and executed to him a power of attorney, authorizing him to apply for, obtain, and locate the certificate for his own use and benefit, and transferring to him all right, title, and interest in the certificate and in the land to be located by it. The effect of this latter instrument was that of an absolute sale and conveyance by the maker of all the grantor's interest to the quantum of land to which he was entitled. 15 Tex. 274;20 Tex. 237;28 Tex. 383.

In March, 1838, the board of land commissioners for Red River county issued to the vendee, as assignee of the husband (who, before the death of the wife, had conveyed one-half of their right against the government, and after her death all the residue of his right), a certificate for the league and labor to which the latter was entitled as the head of the family, and subsequently the vendee located the certificate, and received a patent for the land located. The certificate thus became the property of the assignee.

In 1856, the children, of parents who had sold their headright certificate before it issued, having attained their majority, brought suit against the patentee for one-half of the land, alleging that they were entitled thereto as the heirs of their mother, upon whose estate no administration had ever been had: Held, that the facts do not invest the plaintiffs with a valid legal title to any portion of the land, and consequently their suit, being based upon the assumption of such a title, is not maintainable. See the opinion for distinctions taken between this case and that of Webb v. Webb, 15 Tex. 274; and also between this case and Wilkinson v. Wilkinson, 20 Tex. 237.

In the case of a right under the 10th general provision of the constitution of the republic, there was nothing to descend to the plaintiffs from their mother, at the time of her death, but the bare inchoate right to obtain a certificate.

The children can be said to have inherited from her nothing more than an equity, which, if the certificate had been issued to their father, would have entitled them to an interest in it. But the certificate having been issued, not to their father, but to the assignee in his own name and right, who received and located it for himself alone, and who at his own cost obtained the survey and patent for the land, the plaintiffs, to maintain any rights as against the patentees, must establish such facts as will authorize a court of competent jurisdiction to declare him a trustee for them to the extent of such interest as they may be equitably entitled to.

In a proceeding for the purpose of establishing an equitable trust, the plaintiffs would be required to disclose all the facts and circumstances connected with the case, making it manifest that the remedy they ask is indispensable to their relief; that they come into court with clean hands, and are prepared to do as well as to receive equity; and that it is inequitable for the defendant to withhold from them the relief they seek, for, if the equities are balanced, the legal title will not be disturbed.

The right to headright certificates was fixed by the 10th general provision of the constitution of the republic of 1836, and that right rested upon the fact of residence in the country at the declaration of independence of that year. Pas. Dig. p. 37, sec. 10, notes 145, 146.

The primary object before the boards of land commissioners was not so much to ascertain the qualifications of parties at the date of their applications (although conditions of this kind were superadded by the law), as to determine to whom they were guarantied and secured by the constitution. Pas. Dig. art. 4140, note 953.

This right was but an inchoate equitable right to obtain the certificate. No property was then in esse which could descend to the heirs, or of which an administrator could take an account.

It might, perhaps, be urged, with much propriety, that the judgment of the board of land commissioners, awarding the certificate to the assignee, could not be called in question collaterally, but only in a direct proceeding for that purpose. And undoubtedly, after the great lapse of time disclosed in this case, their judgment should not be questioned collaterally, except upon strong and satisfactory proof.

ERROR from Collin. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

The trial in the district court was had at the spring term, 1859, and the plaintiffs sued out their writ of error in December of the same year.

Away back previous to 1835 (it does not appear just when), Hezekiah Walters married Zeruiah, the name of whose father is not given, and, while Texas was yet part of a Mexican state, they emigrated to the country of colonial enterprises. The law which invited them promised to the family a league of land, and this grant, according to the laws governing marital rights, would have been community property. Pas. Dig. art. 4642, note 1049. But all the colonization laws were repealed on the 26th March, 1834. Pas. Dig. arts. 736, 737, notes 385, 386. And by a decree of 30th March, 1835, it was declared, that all persons or families now residing in Texas, and who shall have emigrated previous to the date of this law, for the purpose of settling in the country, and who have not received lands according to the colonization laws, are hereby declared to be entitled to the portions designated by the law of the 24th March, 1825. Pas. Dig. art. 754.

The revolutionary constitution of Texas annulled this mode of obtaining land. Pas. Dig. p. 27, note 125. But the constitution of the republic guarantied the fulfillment of the obligations of the previous government, by declaring that, “all citizens now living in Texas, who have not received their portion of land in like manner as colonists, shall be entitled to land in the following proportion and manner: Every head of a family shall be entitled to one league and labor of land; and every single man of the age of seventeen and upwards, shall be entitled to one-third part of one league of land.” Pas Dig. p. 37, sec. 10, note 146.

Hezekiah Walters came under the category of the head of a family. There was a provision in favor of alienation on the same page, which was construed to extend to this class of rights. Hezekiah Walters availed himself of this privilege, and on the 3d day of January, 1837, and during the life-time of his wife, he sold one-half of this claim upon the government to John G. Jewett; and, after the death of his wife, on the 9th of February, 1838, Walters sold the other half to Jewett. That same year the board of land commissioners issued the certificate for the league and labor to Jewett, as assignee of Hezekiah Walters. Jewett located the land, had it surveyed, and returned the field-notes to the general land office; and the patent was issued to Jewett, as assignee of Walters, because the certificate had been issued to him. Pas. Dig. arts. 4290 to 4294.

The legal title to the land was thus in Jewett. But whether the children of Walters were reared or grew up does not appear. Certainly it is one of the cases which Chief Justice Hemphill reprehended, where children did not observe the commandment, “Honor thy father and thy mother.” Twenty years after these sales by the father, the children sued their father and his vendee for one-half of the land. They denied the validity of the first sale, because the right was not a thing in esse, for if it were, then the father, as the head of the family, had the right to sell all or one-half, and therefore their claim would have been limited to a fourth, their mother's interest in the remaining half. And so, disregarding the first sale as a thing that could not be lost by purchase, they said that it was property which could pass by descent; and that no part having been lost by purchase, the one-half of the whole descended to the children of the community as heirs, and, therefore, the father's sale, a month after the death of the mother, could not affect their right as heirs. Jewett's heirs stood upon their legal title; the heirs of Mrs. Walters claimed that he held half of that legal title in trust for them.

The charge of the judge and the more particular facts are given in the opinion of the court.

B. Warren Stone, for appellants. Although in the assignment of errors in this case appellants have made the points of error of the jury as to the law and evidence (which we think good), yet the important question arises upon the charge of the court, the settlement of which will settle the issue upon which this case must be decided.

The wife was clearly entitled to her half-interest in the land acquired by virtue of the settlement of Walters and herself in the republic, in 1835, and by virtue of the fact of their being in the country at the declaration of independence. The charge of the court is error, when it asserts that “if Walters with his wife and children emigrated to Texas prior to the declaration of independence, in 1835, and that the wife died prior to the issuance of the certificate to Walters' assignee, Jewett, then, in that event, Mrs. Walters, by virtue of her emigration to Texas, acquired no right to the land in controversy, or any other land that would descend to plaintiffs as heirs.” If Mrs. Walters had not the legal title, she had the equitable title, for her being in the country at the declaration of...