Hill v. Moore

• Decision Date: 04 March 1892
• Citation: 19 S.W. 162
• Court: Texas Supreme Court
• Parties: HILL <I>et al.</I> v. MOORE.

19 S.W. 162

HILL et al. v. MOORE.

Supreme Court of Texas.

March 4, 1892.

Error from district court, Denton county.

Trespass to try title, by F. M. Hill and others against Susan Moore. Judgment for defendant. Plaintiffs bring error. Reversed.

Sawnie Robertson, for plaintiffs in error. Alexander, Winter & Campbell and J. M. Moore, for defendant in error.

STAYTON, C. J.

This case was before this court at a former term, and is reported in 62 Tex. 610. The material facts are as follows: "R. R. Jowell and Martha P. Ragsdale married in Texas in 1835. They lived together in said state as husband and wife, in Cherokee county, until the death of Martha, in the fall of 1848. Her husband and one child (Mary Ann, born October 20, 1836) survived her. Mary Ann married F. M. Hill, February 12, 1852, and died March 10, 1872, leaving as her heirs her said husband, F. M., and the other plaintiffs in this suit, — George R., born in 1857, Richard D., in 1860, Lucinda F., in 1862, Sallie A., in 1866, and John M., in 1870, — children of F. M. Hill and Mary Ann. At the death of Martha P. the community estate of herself and her husband owed no debts. She owned some slaves in her right, and she and her husband owned as community property the land certificate, by virtue of which the land in controversy was patented. The said certificate was a headright certificate for one league and labor of land, issued in February, 1838, by the republic of Texas, through the board of land commissioners of Sabine county, Texas, directly to the said R. R. Jowell. The said R. R. Jowell never qualified as community survivor, nor was the estate of said Martha P. administered upon. On December 17, 1852, the said R. R. Jowell sold and conveyed said certificate, less 640 acres, to George W. Copeland. On November 9, 1854, George W. Copeland conveyed said certificate, less 640 acres, and lot D, to Jesse Duren. On May 26, 1856, R. R. Jowell conveyed the entire certificate directly to Jesse Duren, and on October 16, 1856, the said Jesse Duren conveyed the said certificate and the land in controversy, upon which it had then been located, to George F. Moore, for the sum of $3,000 in money to him paid by the said Moore; that being the full value of the property at the time. Certified copies of said transfers are made part hereof. That said Moore, soon after he purchased, caused an error in the survey to be corrected, and applied for and obtained a patent to himself as assignee, dated November 29, 1856. That at the time of his purchase and the issuance of said patent the said Moore lived in Travis county, Texas; was a lawyer by profession in practice, and had no actual knowledge of any defect in his title, or of any claim of Mary Ann Hill or of these plaintiffs, either to the certificate or to the land in controversy. That the defendant in this suit is the surviving wife of said George F. Moore, and the sole devisee of said Moore's estate in said land in controversy. That said R. R. Jowell received and applied to his individual uses the proceeds of said sale by him of said land certificate, and neither the said Mary Ann nor any of her heirs or the plaintiffs ever received anything from the community estate of said R. R. and Martha P. Jowell. That the heirs of said Mary Ann Jowell commenced suit against George F. Moore on the ____ day of May, 1876, in the district court of Denton county, said suit being numbered 1,178 on the docket of said court, which was prosecuted to final judgment on the merits, said judgment having been rendered against the plaintiffs in said suit less than twelve months before the commencement of this second action. From the date of patent to the date of trial the said George F. Moore and defendant have paid all taxes upon said land, aggregating the sum of $1,203.70, and interest at 8 per cent. on said taxes per annum from payment amounts to $860.81. The balance of said certificate not located on the land in controversy, and bought by said George F. Moore, was never received by Mary Ann Hill or her heirs. That said certificate was located on the lands in controversy by Jesse Duren at his own expense, and the expenses of obtaining a patent were paid by said George F. Moore. The usual price of locating a certificate at the time of the location of the land in controversy was 12 to 20 cents per acre, or one-fourth to one-third of the land. That, after the death of Martha P. Jowell, R. R. Jowell married Eliza Hagan, in 1850. Said Eliza was living in Cherokee county in 1876. R. R. Jowell died in 1871. Jesse Duren is dead, (died in 1881 or 1882) and G. W. Copeland is dead. That neither F. M. Hill nor any of the children of Mary Ann Hill ever received anything from the estate of said R. R. Jowell." This is the agreed statement of the material facts. Plaintiffs seek to recover one-half of the tract of land in controversy, which it will be observed does not embrace all the land that might be granted by virtue of the certificate. The defendant answered by general demurrer, plea of not guilty, plea of stale demand, two years' limitation by possession of certificate, payment of taxes by defendant, location of land, and payment of all expenses by defendant and those through whom she claims, and also plea of former recovery by George F. Moore, who devised the land to defendant. The cause was tried without a jury, and judgment was rendered for defendant.

That the plea of former recovery was not available in this case is evident. Hall v. Wooters, 54 Tex. 231. It is equally evident that title to the certificate was not acquired by adverse possession of it for two years. Barker v. Swenson, 66 Tex. 407, 1 S. W. Rep. 117. When R. R. Jowell attempted to sell the land certificate the only child of his deceased wife was a married woman, and so continued until her death in 1872, while the former action was brought in less than five years after her death. At the time of her death all of her children were minors, and, taking the conceded facts as true, there is no reason to believe that by lapse of time evidence was lost by which appellee has been prejudiced in illustrating her right, or that any advantage has been gained by appellants through delay. When the original action was brought, parties to the transaction were alive who probably could have testified to any important fact, and the inference is that, when the former action was tried, the facts, then agreed to, as are they now, were susceptible of proof.

In Reed v. West, 47 Tex. 248, it was said: "Surely it cannot be doubted that during the suspension of the statute of limitation equity will follow the law, and will not, unless it be for some equitable reason, hold a complainant guilty of laches because of his failure to file his bill during the interval. There was nothing in the circumstances of this case, as disclosed in the pleadings, to justify holding him to greater diligence than is required of parties suing on strictly legal demands." If other suspensions of limitation be considered on question of stale claim, surely coverture must be; and in many cases both infancy and coverture have been deemed a sufficient answer to such a plea. Wilson v. McCarty, 55 Md. 283; Black v. Whitall, 9 N.J. Eq. 589; Dugan v. Gittings, 3 Gill, 138; Demarest v. Wynkoop, 3 Johns. Ch. 129; McMillan v. Rushing, 80 Ala. 406; Dragoo v. Dragoo, 50 Mich. 573, 15 N. W. Rep. 910. It is not necessary, however, in this case to decide whether the same effect should be given in all cases to coverture when set up to defeat a plea of laches or stale claim as must be to that fact when set up to avoid the statutory bar based on lapse of time; but it would seem that this ought to be done if the defense be based solely on lapse of time. The cases in which it may be supposed to have been held that the same rule as to disabilities and as to time within which suits must be brought does not exist in equity as at law must probably mean nothing more than that the lapse of a long time, after cause of action accrues, before suit is brought, is a fact from which inference of want of right may sometimes be drawn, which could not be indulged if suit had been brought promptly, and thus the lapse of time assists to make the conclusion that the right in fact never did exist, rather than to have intended to hold, in the face of statutes declaring what disabilities shall operate to prevent a bar, that any court has power to deny to such statutes their full effect when presented in an equitable proceeding as well as when arising in actions strictly legal in their natures. Inferences of acquiescence may also be drawn from long delay in the assertion of a known right, and in extreme cases estoppel may give up; but we are of opinion, looking to the coverture of the mother of appellants, and to all the other facts before us, that no such inferences can be drawn in this case, and that their claim is not stale.

That the land certificate was community property is a conceded fact; that no facts existed which authorized the survivor to sell is also conceded, as is it that no facts have transpired since the sale which would preclude plaintiffs from asserting their rights in the land in controversy; and the real question in the case is, were any of the persons through whom appellee claims title innocent purchasers? The certificate upon its face showed that it was one that could only be granted by reason of the existence of a family of which R. R. Jowell was a member and the head, and the conveyance showed that he was a colonist. The facts, in connection with the laws in force when the original certificate issued, evidence that the right was based on section 10, general provisions of the constitution of the republic, which provided that "all citizens now living in Texas who have not received their portion of land in like manner as colonists, shall be entitled to their land in the following proportion and manner: Every head of a family shall be entitled to one...