Newman v. Crowls

• Decision Date: 23 January 1894
• Docket Number: 148.
• Citation: 60 F. 220
• Parties: NEWMAN v. CROWLS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

60 F. 220

NEWMAN v. CROWLS et al.

No. 148.

United States Court of Appeals, Fifth Circuit.

January 23, 1894

This suit was instituted in the United States circuit court for the northern district of Texas by defendants in error citizens of the state of Louisiana, to recover from plaintiff in error, a citizen of the state of Texas, 640 acres of land situated in Fisher county, Tex., patented by the state of Texas to the heirs of George W. Crowls on June 9, 1890, by virtue of a land certificate issued by the adjutant general of the state of Texas to the heirs of George W. Crowls on February 17, 1852, in accordance with an act of the legislature of Texas approved February 10, 1852. The action was brought in the ordinary form of trespass to try title, as provided by the laws of Texas, plaintiff in error answering by plea of not guilty. Defendants in error (plaintiffs below) proved that they were the only heirs of George W. Crowls deceased; that he died a soldier in the army of the republic of Texas on November 6, 1836; that a bounty certificate of 640 acres of land was issued to them, as the heirs of George W. Crowls, by the adjutant general of the state of Texas, on February 17, 1852, in accordance with an act of the legislature of Texas approved February 10, 1852, which granted and secured to the heirs of George W. Crowls deceased, 640 acres of land, 'to which they are entitled by virtue of the services and death of said Geo. W. Crowls in the army of the republic of Texas,' and authorized the issuance of a bounty warrant for said 640 acres of land to the heirs of said George W. Crowls; that the land in controversy was located by virtue of said bounty certificate and was patented on June 9, 1890, to the heirs of George W. Crowls, deceased. Plaintiff in error (defendant below) introduced in evidence, and relied upon, a judgment of the district court of Fisher county, Tex., in the cause of The State of Texas v. The Heirs of Geo. W. Crowls et al., (No. 18,) rendered March 14, 1890, (which was a proceeding to escheat the land in controversy,) an order of sale issued in said cause on May 12, 1890, and a deed to plaintiff in error, of date June 3, 1890, from the sheriff of Fisher county, Tex., reciting the judgment and order of sale above mentioned, alleging the due advertisement and sale of the property in controversy thereunder to plaintiff in error for the sum of $1,920 cash, and purporting to convey to plaintiff in error all of the estate, right, title, and interest which the heirs of George W. Crowls and other defendants (squatters upon the land) and the state of Texas had in and to the land in controversy. It was shown that plaintiff in error was the highest and best bidder at said sale; that the land was sold to him for $1,920 cash, which sum he paid the sheriff on receipt of deed to the land; and that the sheriff paid over to the treasurer of the state of Texas $1,636.40 of this money, that being the balance left after payment of the costs of the escheat proceeding. Defendants in error then introduced in evidence a duly-certified copy of the transcript of the complete proceedings in the said cause of The State of Texas v. Heirs of Geo. W. Crowls et al., (No. 18,) in the district court of Fisher county, Tex. Said transcript shows, among other things, service by publication, as follows:

'The State of Texas to the Sheriff or any Constable of Fisher County, Greeting: Oaths therefor having been made as required by law, you are hereby commanded that you make publication of this citation in some newspaper published in said county once a week, for four consecutive weeks previous to the return day hereof you summon all persons interested in the estate of Geo. W. Crowls, deceased. Defendants to be and appear before the district court to be holden in and for the aforesaid county of Fisher, at the courthouse thereof, in the town of Roby, on the first Monday in September, 1888, then and there to answer the petition of the state of Texas, by R. C. Crane, county attorney of Fisher county, plaintiff, filed in said court on the 8th day of August, 1888, and numbered on the docket of said court 18, against P. A. Williams, a resident of Taylor county, and J. F. Newman, a resident of Nolan county, and the heirs of the said Geo. W. Crowls, deceased, alleging, in substance, as follows: That in the year 1853 a bounty warrant was issued to the said Crowls by the state of Texas, and said bounty warrant was in said year located by him on 640 acres of land situated in Fisher county, Texas, now known and designated as 'Survey No. 325, Block 16, Abstract No. 19,' lying on the south bank of the Clear Fork of the Brazos river; that no patent was ever issued by the state of Texas to the said Geo. W. Crowls upon said land, or to any one claiming under or through him; that said Crowls has departed this life, and left no heirs, or any one having a legal claim to said land; that said P. A. Williams and J. F. Newman are claimants of said land; and that said Newman is now in possession thereof. Plaintiff asks for judgment vesting title to said land in the state of Texas, and for a writ of possession for said land in behalf of the state of Texas, for costs and general and equitable relief. Herein fail not, but have you then and there before said court this writ, with your return thereon, showing how you have executed the same.

'Issued this 6th day of August, A. D. 1888.

'Witness:

W. S. Rector,

'Clerk District Court. Fisher County.

'Given under my hand and the seal of said court, at office, this 8th day of August, A. D. 1888.

[Seal.] 'Attest:

W. S. Rector,

'Clerk District Court of Fisher County.'

'Sheriff's Return.

'Received this writ on the 8th day of August, A. D. 1888, at 10 o'clock a. m. of said day; and I executed the same by publishing the same in Fisher County Call, a newspaper published in the county of Fisher, once in each week for four consecutive weeks, previous to the return day thereof. Said publication was made on the 9th, 16th, 23d, and 30th days of August, A. D. 1888, and a printed copy thereof herewith accompanies this return.

'Witness my hand, officially.

C. E. Roy.

'Sheriff Fisher County.'

Indorsed as follows: 'No. 18. In District Court. The State of Texas v. Heirs of Geo. W. Crowls. Citation by publication. Issued this 8th day of August, 1888. W. S. Rector, Clerk.'

Said transcript also shows the judgment of the district court of Fisher county, Tex., in favor of the state of Texas, and against the heirs of George W. Crowls and others, as follows: 'On this day came on to be heard the above styled and numbered cause, and the state of Texas appearing by her county attorney, W. W. Beall, and R. C. Crane and F. Keifer, attorneys for the state of Texas, and it appearing to the court that the heirs of G. W. Crowls, though duly cited as required by law, by making publications in the Fisher County Call, a weekly newspaper published in Fisher county, Texas, of the citation issued herein, prior to the return day of the September term, A. D. 1888, of this court, failed to appear and make answer herein, but wholly made default; and it further appearing to the court that Allen Williams and J. F. Newman, defendants herein, though duly cited by law, failed to appear and make answer in the said cause, but wholly made default; and it further appearing to the court that Mrs. P. A. Williams, a defendant herein, having been duly cited, appeared and made answer herein at the September term, A. D. 1889, of this court, and neither the state of Texas nor either of the defendants herein demanding a jury, the court therefore proceeded to hear the evidence and determine the issue upon the pleadings and evidences in said cause. And it appearing to the court that the only claim of the heirs of G. W. Crowls upon the tract of land herein sued for is by virtue of a certificate issued by the state of Texas to the said heirs in the year A. D. 1853, and that the said certificate was by said heirs located upon the tract of land herein sued for, and situated in Fisher county, Texas, and that no patent has ever been issued from the state of Texas to the said heirs of G. W. Crowls, or to any other party, for said tracts of land, and that the title thereto still remains in the state of Texas, and it further appearing to the court that no act of ownership has been exercised by the said heirs of G. W. Crowls, or any person or persons claiming by, through, or under them, for a period of more than seven years preceding the institution of this suit, and that no lawful claim has been asserted within the said time by any party; and it further appearing to the court that no one of said defendants herein has set up any title to said tract of land, or has offered any evidence of title thereto, though duly cited as before stated; and it further appearing to the court that said tract of land is reasonably worth the sum of at least $3.00 per acre,--it is therefore the opinion of the court that the law and facts are with the plaintiff, and that he have and recover the tract of land herein sued for and hereinbefore described. It is therefore ordered, adjudged, and decreed by the court that the state of Texas do have and recover of the defendants, heirs of G. W. Crowls, J. F. Newman, P. A. Williams, and Allen Williams, all that tract or parcel of land situated in Fisher county, Texas, hereinafter more particularly described by metes and bounds as follows.'

The court, on the evidence, instructed the jury to return a verdict for defendants in error for the land in controversy, which was accordingly done, and judgment was rendered in accordance with said verdict.

James W. Brown, for plaintiff in error.

Branch K. Miller and T. W. Gregory, for defendants in error.

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