Holloway v. Holloway

• Decision Date: 30 April 1867
• Citation: 30 Tex. 164
• Parties: SIMPSON HOLLOWAY v. DANIEL HOLLOWAY ET AL.
• Court: Texas Supreme Court

30 Tex. 164

SIMPSON HOLLOWAY

v.DANIEL HOLLOWAY ET AL.

Supreme Court of Texas.

April, 1867.

Suits cannot be instituted in the name of the agent of the plaintiff; they must be brought in the name of the principal in whom the right may be. The exceptions to this rule do not apply in a case where the suit was to recover land. 13 Tex. 272.

The 8th section of the act of 10th February, 1852, concerning the surveys of lands, reads as follows: “All lands heretofore located by virtue of any genuine claim to land shall be surveyed within twelve months from the passage of this act, and all lands which may be hereafter located shall be surveyed within twelve months from the date of location, or the said locations, in either case, shall be null and void, and the lands be subject to relocation and survey, as other vacant and unappropriated land.” Pas. Dig. art. 4568, note 1009. A location made in 1844, if not surveyed as directed in this act, became null and void on the 11th February, 1853, and will not support an action (instituted before the passage of the act), unless there was some effort to survey before the expiration of the time. Pas. Dig. art. 4562, note 1007; 11 Tex. 41.

In the case of Edwards v. James, 13 Tex. 52, the party had sued out a mandamus to compel a survey, and the court said, “It is not believed to have been intended to embrace a case like the present, where there were legal impediments to the survey that could only be removed by an adjudication on the locator's right to have the land selected, located, and surveyed.” The court will not extend the exception beyond the class of cases here contemplated. Pas. Dig. arts. 4562, 4568, notes 1007 and 1009; 13 Tex. 52.

It is not enough to have demanded the survey, and that the survey was refused because of conflict with a title afterwards in a suit between third parties adjudged to be void.

Where the wife averred that she sued for her separate property, and the only evidence produced was a deed of bargain and sale to the wife during coverture, such a deed raises a presumption that the land belongs to the community, and it does not support the averment of separate property.

The husband can sue for the separate property of his wife alone or jointly with her, and evidence showing it to be her separate property will be sufficient to support the issue. But if it be sued for as the separate property of the wife, and that be the issue, evidence to support her right must be adduced; and if it be proved that it was community property, the action will fail. Pas. Dig. art. 4636, note 1043; 12 Tex. 412;13 Tex. 628;24 Tex. 304.

Where, in the original petition, it was averred that the certificate was the property of the husband, if he be not estopped by such averment, certainly the wife cannot, by an intervention in which she is joined by the husband, change the character of the title to the property purchased from community property to the separate estate of the wife, and thereby defeat a defense which would be good against the original action. 23 Tex. 594;ante, 104.

ERROR from San Augustine. The case was tried before Hon. A. W. O. HICKS, one of the district judges.

This was a three-cornered fight. The record is exceedingly voluminous, and the briefs of the counsel printed and written are little less so. The following statement of pleadings and facts is principally copied from the brief of Donley & Anderson. It does not materially differ from the printed summary by Messrs. Wallace, and perhaps it is more full than is necessary in the view taken by the learned judge who delivered the opinion; but as the case was remanded for a new trial, the report cannot be too full.

On the 18th of October, 1851, Daniel Holloway, as the attorney in fact of John Holloway, instituted suit in the district court of San Augustine county, against Simpson Holloway and Humphrey Bate, surveyor of San Augustine county, alleging that in September, 1844, the said Daniel, as the agent of the said John, caused the headright certificate of the said John, which is alleged to be genuine, and recommended as such, to be filed in the county surveyor's office of San Augustine county in two files, on land that was vacant. It is alleged that twelve hundred and ninety-nine acres is situated in San Augustine county, on the waters of the Attoryac, south of a three hundred and twenty acre survey made for H. C. Watson, and northwest of Samuel Stedham's survey and one labor of said certificate, located west of a labor survey made for Simpson Holloway, and north of Mary Ward's survey. That the land is within the limits of a pretended grant called the Greene claim, and for that reason the county surveyor could not survey it.

It is further alleged that Simpson Holloway, well knowing that petitioner had filed on the land, did, on or about the 20th of April, 1850, make a file on the land previously filed on by petitioner as aforesaid, and that after the making of said file, to wit, about the 22d of April, 1850, the said Simpson Holloway illegally and fraudulently procured Humphrey Bate, the county surveyor of San Augustine county, to survey a part of the land filed upon by defendant in error, say six hundred and forty acres, and was about to record the field-notes, and certify the same to the commissioner of the general land office, so that said Simpson Holloway might obtain a patent for said land. An injunction is prayed for and granted, restraining said Humphrey Bate from recording, and said Simpson Holloway from forwarding, the field-notes to the general land office for patent.

Exceptions and answer of plaintiff in error, on the ground that the file of defendant in error does not specify with any certainty the lands pointed out and designated for survey by virtue of said certificate. A general denial is filed, and we believe there is no fact alleged or evidence offered that was not equally available under the general denial.

There was amended answer of plaintiff in error, alleging that he had notice (we suppose he intended to say he had no notice) of the file of defendant in error, until after the suit of Edwards v. Davis, 3 Tex. 321. It is further alleged that defendant in error abandoned his location, by not having the survey made and returned to the general land office for patent, averring that there was no legal impediment to have prevented him from having said survey made and the field-notes returned to the general land office. Answer of Humphrey Bate, that he made the survey for Simpson Holloway, as deputy surveyor of Benjamin F. Price, who was at that time surveyor of San Augustine county; that he returned the field-notes of said survey to said Price; and after the expiration of Price's term of office he, Bate, was elected in Price's stead, and took possession of said office, and there found the field-notes of the survey made for said Simpson Holloway partly recorded; that he completed the record, and delivered the field-notes and certificate to said Simpson Holloway; that after that he found in an old file-book the file described in the petition for the injunction, alleged to have been made for said John Holloway.

There is no offer by him to survey for defendant in error the land claimed by him.

There is amended answer of plaintiff in error, alleging that defendant in error did not use diligence in having the survey made, and that he, plaintiff in error, had no notice of said file when he made his application for survey, and further averring, that he had ten years' peaceable possession of said land, etc. There is an amendment of plaintiff in error, averring that he had purchased the certificate of John Holloway, located on said land, etc. There is an amendment by plaintiff in error, alleging that no application had been made to have said land surveyed, and no refusal by the county surveyor to survey is averred; and an amendment by plaintiff in error, in nature of exception, that the location of defendant in error is wanting in certainty, etc., and, if ever made, was abandoned, by not being returned to the general land office in a reasonable time, etc. And further amendment by plaintiff in error, that he was the owner of the certificate of John Holloway; that he purchased without notice, etc.; no averment that he paid anything. The intervention of Elizabeth Holloway averred that she is the owner of the certificate of John Holloway and the land in controversy; that she purchased in 1851, etc. There was an amendment by defendant in error, alleging, that if plaintiff in error ever purchased the certificate of John Holloway, he knew it was the property of said Elizabeth.

The charges of the court are set out in the opinion. They are given in extenso in the brief of Mr. Wallace. Verdict and judgment making injunction perpetual. Simpson Holloway is adjudged to recover of John all costs that had been incurred, etc. It is further decreed and ordered by said judgment, that the county surveyor survey the land set out in the petition as having been located by virtue of John Holloway's certificate.

The plaintiff introduced B. F. Dexon, who testified that he was county surveyor of San Augustine county on the 29th of September, 1844; and a file-book of the said office was shown him, which he proved was the book of files in 1844, and the two files of John Holloway's certificate were in his handwriting. Said files were made by Daniel Holloway, as the agent of John. The land was then represented as vacant, or belonging to the government. The files, as stated in the plaintiff's petition, were proved. A few months after the files were made, some person applied to have a survey made of the land filed on by virtue of the John Holloway certificate, and his deputy refused to make the survey, on account of some alleged conflict in relation to the land filed on. It was admitted on the trial that the land filed on was within the survey known as the Guerrero claim or survey, and was not determined when this survey...