Hubbard v. Horne

• Decision Date: 01 January 1859
• Citation: 24 Tex. 270
• Parties: JOHN R. HUBBARD AND OTHERS v. A. G. HORNE.
• Court: Texas Supreme Court

24 Tex. 270

JOHN R. HUBBARD AND OTHERS

v.A. G. HORNE.

Supreme Court of Texas.

1859.

The exemption from execution, of lands granted to those who were in the “battle of San Jacinto, and other battles,” under the act of the 21st of December, 1837, is limited to the life-time of the grantee, and upon his death, it ceases, and the property becomes assets in the hands of his administrator.

The 45th section of the act of the 20th March, 1848, concerning the estates of deceased persons, requiring the chief justice to set apart, for the use of the widow and children, all such property as may be exempted from execution or forced sale, by the constitution or laws of the state, etc., does not embrace lands granted “to those who were in the battle of San Jacinto, and other battles.” 14 Tex. 463;17 Tex. 180;18 Tex. 102.

It cannot be regarded a statute in pari materia, with the general laws exempting the homestead, and other property of the citizen, from forced sale; and cannot properly be taken and construed together with them, as constituting one statute, upon the subject of which they treat, or as parts of one and the same system.

Where B. agreed, in consideration of past services rendered him by A., to secure to him a tract of land, on which A. had filed a borrowed certificate, by filing on the same with his own, and he did so, and A. went into possession. and improved it, and was on it at the death of B.: Held, that the heirs of B. could not recover the land.

APPEAL from Burnet. Tried below before the Hon. Edward H. Vontress.

This was an action of trespass to try title, brought by John R. Hubbard, and Eliza Hubbard, his wife, Robert Flippin and his wife, Mary Flippin, and Sarah Vandeveer and Emma Vandeveer, by the said John R. Hubbard, their next friend (the said Eliza, Mary, Sarah, and Emma, being heirs at law of Logan Vandeveer, deceased), against A. G. Horne, to recover a tract of land containing about 105 acres; being a part of land granted to the said Logan Vandeveer, as his San Jacinto bounty warrant. The defendant pleaded not guilty.

The heirship of the plaintiffs, and the original title of the land to Logan Vandeveer, as stated, were admitted. Robert Adams purchased the land in controversy, after the death of Logan Vandeveer, at a public sale, made by the administrators of his estate, under an order of the county court, requiring the said administrators to sell the same for the payment of the debts of the estate. This tract was not included among the property set apart by the chief justice, to Vandeveer's heirs, as exempt from forced sale. The administration on the estate, was still open and undetermined; and at the sale of the land, the plaintiffs forbade the sale, and claimed it as their property. On the 19th day of March, 1856, the administrators made title to Adams, who paid the amount of his bid therefor, and the sale was approved by order of the county court. The defendant claimed under a deed from Adams, dated the 7th day of November, 1856.

It was proved by the defendant, that during the life-time of Vandeveer, Adams was in possession of the tract, holding it by a certificate filed thereon, which he had borrowed; and Vandeveer stated to the witness, that in consideration of many favors he had received from Adams, he intended to save that land for Adams; that he intended “to lift” a hundred acres of his file off the Watts tract, in order to file the same on the Adams tract. Vandeveer also stated his intention to furnish Adams with cattle and hogs, and other assistance; and the deceased requested the witness to inform Adams of his intentions; with which request he complied. Adams remained on the tract, up to the death of Vandeveer. This conversation occurred during the winter, in 1855.

The plaintiff proved by a witness, that Adams, after Vandeveer's death, told him that he was living on the land; had intended to save the land as his pre-emption, but was unable to improve it; that he had permitted Vandeveer to locate it, and he was to live upon it during his life-time; Vandeveer was to have furnished him a stock of hogs and cattle, and help him to improve the land; and at his death, Vandeveer was to have the land, and all the improvements.

The court gave to the jury the following instruction, asked by the defendant: that an agreement between Adams and Vandeveer, that, in consideration of services which had been ren dered by Adams to Vandeveer, the former should have the land in controversy, in pursuance of which he went into possession in the life-time of the latter, commenced making improvements, and continued in...