Moody v. Bonham

• Citation: 178 S.W. 1020
• Decision Date: 16 June 1915
• Docket Number: (No. 5508.)<SMALL><SUP>†</SUP></SMALL&gt
• Parties: MOODY v. BONHAM et al.
• Court: Court of Appeals of Texas

178 S.W. 1020

MOODY v. BONHAM et al.

(No. 5508.)^†

Court of Civil Appeals of Texas. Austin.

June 16, 1915.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

Action by M. L. Bonham and others against W. L. Moody. From a judgment for plaintiffs, defendant appeals. Reformed and affirmed.

Anderson & Moses, of Fairfield, for appellant. M. L. Bonham, of Anderson, S. C., W. W. Ballew, of Corsicana, T. H. Bonner, of Fairfield, and Boyd, Bell & Fryer, of Teague, for appellees.

Findings of Fact.

JENKINS, J.

James B. Bonham was killed at the Alamo in 1836. Donation certificate No. 37, for 640 acres of land, was issued to his heirs October 15, 1859. He left surviving him five brothers and sisters, one of whom was M. M. Bonham. The following agreement was entered into, signed both by counsel for appellant and appellees:

"For the purpose of expediting the trial of this cause, and to save expenses and time in the introduction of titles of record, it is agreed by and between plaintiffs and defendant herein, acting by their attorneys of record: Defendant admits that plaintiffs have title to the 186½ acres involved in this suit, unless title to the donation certificate No. 37, to the extent of 186½ acres of land passed out of James B. Bonham's heirs to L. D. Bradley, by purchase or otherwise, or unless defendant can show that plaintiffs, or those under whom they claim, lost title to said certificate and land located by virtue of same, by the statute of limitation or otherwise. This agreement executed in duplicate."

The land in controversy, 186½ acres, was located by virtue of said certificate. The appellees claim said land as the heirs of James B. Bonham, deceased, and appellants claim the same by virtue of a sale thereof made by M. M. Bonham, as administrator of the estate of James B. Bonham, who was appointed as such administrator by the probate court of Freestone county October 31, 1859. He applied for and obtained an order to sell said certificate, and on September 24, 1860, sold the same at public outcry to L. D. Bradley, who was one of his attorneys in obtaining such administration.

Judgment went for the appellees.

Opinion.

Appellees object to a consideration of each and all of appellant's assignments of error, for the reason that he did not file any assignment of error in the court below. The case was tried by the court without a jury. This objection is sustained as to the first assignment of error, which relates to the refusal of the court to postpone the trial until witnesses could inspect the land for the purpose of ascertaining whether or not certain improvements which they knew had been made in that vicinity in 1860 or 1861 were situated upon the land in controversy.

Appellees' contention as to the remaining assignments of error is overruled, for the reason that rule 101 for the government of district and county courts (159 S. W. xi) provides that:

"Assignments of error or cross-assignments relating to any ruling or action of the trial court or trial judge, which occurs subsequently to the rendition of a final judgment in the case, may be incorporated in the brief filed in the Court of Civil Appeals without being included in the transcript."

All of appellant's assignments of error, except the first, relate to the findings of fact and conclusions of law filed by the court subsequent to final judgment herein.

Had we considered appellant's first assignment of error, we would have held it without merit, for the reasons that it was not alleged in said motion that it was expected to prove by the witnesses that the improvements on said land were maintained thereon after 1861. The statutes of limitation were suspended in this state from 1860 to 1870. Peak v. Swindle, 68 Tex. 246, 4 S. W. 478; Grigsby v. Peak, 57 Tex. 142. Besides this, there was ample time after the conclusion of the trial for witnesses to have examined the land and for appellant to have filed their affidavit as to what they would have testified after inspection of the same. No such affidavit was filed, presumably for the reason that their testimony would not have been favorable to appellant.

There are two controlling issues presented by this appeal. The first is as to whether the certificate issued to the heirs of Jas. B. Bonham was a gratuity; if so, it did not belong to his estate and was not subject to be sold by his administrator. There are cases which hold that certificates issued to those who fell at the Alamo and at Goliad were the property of the estates of such parties. State v. Zanco, 18 Tex. Civ. App. 127, 44 S. W. 528; Goldsmith v. Herndon, 33 Tex. 708; Allen v. Clark, 21 Tex. 404. In these cases the certificates were headrights and had been earned by the parties before their death; but donation certificates were mere gratuities on the part of the state, and when issued became the property of the heirs of such parties and did not belong to their estates. Todd v. Masterson, 61 Tex. 622-627; Ames v. Hubby, 49 Tex. 710; Summerlin v. Robb, 11 Tex. Civ. App. 53, 31 S. W. 712; Dick v. Malone, 24 Tex. Civ. App. 97, 58 S. W. 168; Eastland v. Lester, 15 Tex. 98. Such being the facts, the sale by the administrator of M. M. Bonham of all of his right, title, and interest in said certificate conveyed no title to the same, for the reason that his estate had no interest in such certificate.

The remaining question is as to whether or not the heirs of M. M. Bonham, the administrator, are estopped by said sale from claiming an interest in such certificate and the land located by virtue thereof. Though the sale was made by M. M. Bonham as administrator of the estate of Jas. B. Bonham, we hold that it estops his heirs from claiming the same or any interest therein for the reason that in his petition for administration he alleged that the certificate was the property of the estate of James B. Bonham, deceased. He made the same representation in his petition for the sale of said certificate, and likewise in his report of said sale. One who induces the purchase of land or other property as being the property of a third party is estopped from asserting any claim to such property. Millican v. McNeill, 102 Tex. 192, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74; Poor v. Boyce, 12 Tex. 448; Cope v. Blount, 99 Tex. 431, 90 S. W. 869; Corzine v. Williams, 85 Tex. 503-506, 22 S. W. 399; Dooley v. Montgomery, 72 Tex. 429, 10 S. W. 451, 2 L. R. A. 715; Grande v. Chaves, 15 Tex. 551; Stafford v. Harris, 82 Tex. 178, 17 S. W. 532, 533. Spears v. Conley (Ky.) 87 S. W. 1073.

In Millican v. McNeill, supra, McNeill, the administrator, owned a life estate of one-sixth interest in the land which he sold as such administrator. The court said:

"The principle controlling this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from afterwards asserting that such an estate did not pass. McNeill owned the life estate when he...