Kircher v. Murray

• Decision Date: 21 March 1893
• Docket Number: 2,219.
• Citation: 54 F. 617
• Parties: KIRCHER v. MURRAY et al.
• Court: U.S. District Court — Western District of Texas

54 F. 617

KIRCHER v. MURRAY et al.

No. 2,219.

United States Circuit Court, W.D. Texas, Austin Division.

March 21, 1893

West &amp Cochran and Floyd McGown, for plaintiff.

D. W Doom, for defendants.

MAXEY District Judge.

Suit at law in the ordinary form of trespass to try title is brought by plaintiff to recover of defendants 433 acres of land. The questions submitted to the court for determination arise upon exceptions interposed by the plaintiff to the following answer of defendants:

'Now come the defendants in the above-styled cause, and, for answer to the plaintiff's petition, say that plaintiff ought not to recover in this behalf, for that the plaintiff has no title to or right of possession of the land described in her petition, in this: that the land in controversy in this suit was located and surveyed under and by virtue of unlocated balance certificate No. 20/160 being a balance of certificate No. 31/201, which issued on the 20th day of February, 1874, in lieu of certificate No. 224, which issued to Gustavus Bunson on March 14, 1860, upon the certificate of Edward Clark, commissioner of claims for Texas, dated September 11, 1858,and No. 4/13, this certificate being given to Gustavus Bunson in accordance with an act of the legislature of the state of Texas, dated February 13, 1858, which act provides that 'the commissioner of claims be, and he is hereby, authorized to issue the following named land certificates, that is to say: * * * Gustavus Bunson, 960 acres, bounty for service in army, 1835-1836,' etc., and said land was patented to 'Gustavus Bunson, his heirs or assigns,' July 14, 1876. That said Bunson died, intestate and without issue, in Texas, in February, 1836, in the service of the Texas army, under the command of Col. Grant or Johnson, and the plaintiff, Augusta Kircher, was his wife at the time of his death, and had been his wife since 1834; and the plaintiff claims that she is heir at law of said Gustavus Bunson, and inherited his said right acquired as aforesaid to 960 acres bounty lands; and that said bounty land warrant became her property on its issuance, as aforesaid; and that the patent issued thereon, as aforesaid, vested title to the land in controversy in her; but the defendants say that if the plaintiff would have been the heir of said intestate had she been a citizen of Texas or Mexico at the time of said Bunson's death, (which is not admitted, but denied,) that the facts are that Gustavus Bunson was not a citizen of Mexico when plaintiff married in the year 1834; that he was then a resident citizen of the county of St. Clair, in the state of Illinois; and that he left there on, to wit, the -- day of September, A.D. 1835, to go to Texas, to offer his services as a surgeon to the Texas revolutionary army, nor was she (the plaintiff) then a citizen of Mexico, but was a citizen and resident of St. Clair county, Ill., and an alien to Mexico and Texas; that she never came to Texas or Mexico, and never was naturalized as a citizen of Texas or Mexico,--wherefore defendants say that, at the time of the death of said Bunson, the plaintiff was an alien as to Mexico and Texas, and was incapable of inheriting the right to land which her husband had acquired by reason of his service and death as a soldier, as hereinbefore stated, and the fact that she ceased to be an alien in 1846, by the annexation of the republic of Texas to the United States of America, she being then, and having been since 1834, a citizen of the state of Illinois, could not operate to confer any right on her as an heir unless she had been qualified to become an heir of Bunson at the time of his death, and when descent, of the right in virtue of which the land is titled, was cast.

'(2) And, further answering in this behalf, the defendants say that if those who were aliens at the time of the death of said Gustavus Bunson, but who would have been his heirs if they had then been citizens of Texas, were entitled to said bounty warrant and the lands located and patented thereby, yet the plaintiff has no title, for that prior to the death of said Gustavus Bunson his father had died, but not his mother, and the said Gustavus Bunson, who died without issue, left surviving him at the time of his death his mother, Charlotte Bunson, and only two brothers, Carl and George, and no half-brother or half-sister or descendants of such; that said Charlotte Bunson and Carl Bunson were citizens of the empire of Germany at the death of Gustavus Bunson, and remained such until their respective deaths; that George Bunson was a citizen of the state of Illinois at the time of the death of Gustavus Bunson, and remained such until his death; that Carl Bunson died April 2, 1839, leaving issue who have ever since remained citizens of the empire of Germany; that Charlotte Bunson died December 2, 1847, leaving George Bunson and the issue of Carl Bunson surviving her; that George Bunson died during the year 1872, leaving issue surviving him, and the defendants have a regular chain of title from all the issue of Carl Bunson and George Bunson down to the defendants,--wherefore the defendants say that the legal title to the land in controversy is vested in them under the patent issued for the land in controversy to Gustavus Bunson; that, under the Spanish law in force in Texas when said Gustavus Bunson died, his surviving wife was not the heir of either the separate property of the husband or his interest in the community property, whether there was issue of the marriage or not. And the defendants further say that, if the right to lands acquired by said Gustavus Bunson was community property between him and his said wife, (which is not admitted, but denied,) that the legal title to the whole of the land in controversy was vested by said patent in the heirs of Gustavus Bunson, and the plaintiff cannot maintain her cause of action at law on an equitable interest in the land in controversy growing out of her community rights, if any she ever had.

'(3) And the defendants, further answering in this behalf, say that plaintiff ought not to have or maintain her said suit against these defendants because of any interest she may have been entitled to by reason of the fact that she was the wife of Gustavus Bunson, for that she never came to Texas, or set up any claim to the rights acquired by her said husband, and never paid any taxes on the land in controversy, or otherwise gave notice of her claim, and the defendants, more than forty years after the death of said Gustavus Bunson, in good faith and without notice of plaintiff's claim now asserted, and without notice that Gustavus Bunson was ever married, purchased the land in controversy from the said issue of Carl Bunson and the said issue of George Bunson, paying full value therefor, and receiving good and sufficient deeds therefor; that said issue of Carl Bunson and George Bunson were vested with the legal title to the land in controversy by virtue of said patent to the heirs of Gustavus Bunson, and neither said patent nor the bounty land warrant on which it was issued contained any fact which should have put defendants on inquiry as to said Gustavus Bunson having ever been a married man; that the commissioner of claims of the state of Texas treated said Bunson as a single man, by issuing to his heirs a land head-right certificate for only one third of a league. Wherefore defendants pray that plaintiff should take nothing by her suit, and that defendants should be adjudged to go hence, and recover of the plaintiff all costs in this behalf expended.'

The exceptions are as follows:

'(1) It appears from said answer that in February, 1836, when he was killed, Gustavus Bunson was a resident citizen of the republic of Texas, and left surviving him his widow, Augusta (Bunson) Kircher, plaintiff in this suit, whose residence, in contemplation of law, was with her husband, Gustavus Bunson, in the republic of Texas; and, it further appearing from said answer that said Gustavus Bunson left no relations who could take under the Spanish law, his heirs being aliens, the plaintiff in this suit, under the Spanish law, became his heir, and as such is entitled to recover the land in controversy. Wherefore she says that so much of said answer as sets up heirship of defendants and alienage of this plaintiff is insufficient, and ought to be stricken out.

'(2) So much of defendants' answer as sets up that plaintiff's claim is an equitable title ought to be stricken out, because, as appears from said answer, Gustavus Bunson died leaving plaintiff as his surviving wife; and, under the law in force, plaintiff's community interest vested in her absolutely, as a legal title, as much as though she had been an heir, and taken by descent.

'(3) So much of defendants' answer as sets up the plea of innocent purchaser for value, and without notice of plaintiff's title, in behalf of defendants, is insufficient, and ought to be stricken out, because-- First. The legal title to the land in controversy is in plaintiff, as the heir of G. Bunson, deceased. Second. If the title to the entire tract is not in plaintiff, then, she having survived her husband, the legal title to one half the land, her community interest therein, prior to his death, vested in her absolutely, and neither the legal nor apparent title was in these defendants. Third. Said defense is enforceable, and can be determined only by the rules applicable to the rights of a bona fide purchaser, as prescribed in courts of equity, and cannot properly be pleaded as a defense upon the law side of the docket of this honorable court.'

1. It is elementary law that the plaintiff cannot, in a suit of this character, rely upon the weakness of the title of her adversary, but she must...