Nixon v. Wichita Land & Cattle Co.

Decision Date22 April 1892
Citation19 S.W. 560
PartiesNIXON <I>et al.</I> v. WICHITA LAND & CATTLE CO.
CourtTexas Supreme Court

Appeal from district court, Archer county; P. M. STINE, Judge.

Suit by Thomas L. Nixon and others against the Wichita Land & Cattle Company. From the judgment Thomas L. Nixon alone appeals. Affirmed.

F. E. Dycus, for appellant.

GAINES, J.

This suit was brought originally by Mary C. Latham, joined by her husband and Eliza R. Weatherford, to recover of the appellee, a corporation known as the "Wichita Land & Cattle Company," 320 acres of land, patented by virtue of a bounty warrant issued to L. D. Nixon. Subsequently the plaintiffs filed an amended petition, in which appellant joined them as a party plaintiff. The defendant pleaded not guilty and the statutes of limitations. He also vouched in J. P. Hart, as his warrantor, and prayed judgment over against him in the event of a recovery by plaintiffs. The case was tried before the court without a jury, and a judgment was rendered in favor of Mrs. Latham and Mrs. Weatherford for one half the land, and that Nixon take nothing, and for defendant, the cattle company, for the other half, as against the plaintiffs, and against Hart for one half the purchase money paid him by it. Nixon has alone appealed, making his appeal bond payable to the defendant company only.

The evidence discloses that L. D. Nixon served in the army of Texas for three months, extending from January 27 to April 27, 1836, and that he was honorably discharged. The certificate by virtue of which the land in controversy was located and patented was issued in his name, as the bounty for that service, on the 23d of May, 1855. There seems, however, to he but little doubt that he had then been dead many years. He emigrated to Texas in 1833, or before that time, from the state of Alabama, where he left a wife and three children. These children, to wit, Mrs. Latham, Mrs. Weatherford, and T. L. Nixon, were the plaintiffs in this suit in the court below. This wife and children he never brought to Texas. After his immigration to this state, he married again, and by his second wife left a daughter, under whom the defendant claims title to the disputed premises. Several witnesses testified as to the marriage of L. D. Nixon with the mother of the plaintiffs, and that plaintiffs were the sole issue of that marriage. None of them, however, ever saw him after he came to Texas. His marriage in Texas was also proved, but none of the witnesses who testified to his career in this state knew anything of his previous history. But the evidence bears no doubt that L. D. Nixon of Alabama was the same man who was known by that name in Texas. He was known as Lorenzo Dow Nixon in both states. After he left Alabama his first wife married again. The date of that marriage is not given. Nor do we know the time at which he married the second wife in Texas. It was proved, however, that his second wife survived him. The time of his death is not definitely fixed, but it seems pretty well established that he died either in the year 1838, 1839, or 1840. No conclusions of law or fact appear in the record, and therefore what view the court took of the evidence is a matter of conjecture. It would seem, however, that it was considered that the certificate was the separate property of L. D. Nixon, and that all his children — the three by the first and the one by the second — were legitimate; and that the appellant, who did not join in the suit until some two years after it was instituted by his coplaintiffs, was barred by limitation. If such were the facts, Mrs. Latham and Mrs. Weatherford would each be entitled to one fourth of the land, and the defendant company to one fourth derived through the child of the second marriage, and to another fourth acquired by limitation as against appellant.

Appellant submits that the certificate was the separate property of L. D. Nixon, and that his suit was not barred by limitation, and that, therefore, he should have recovered one fourth of the land. The difficulty of determining whether the certificate should be treated as community or separate property grows, not out of the law of the case, but out of the uncertainty as to the facts. The face of the certificate indicates that it was granted by virtue of the tenth section of the ordinance of December 5, 1835, passed at San Felipe. That section offered a bounty of 320 acres of land for volunteers in the auxiliary corps for three months' service. Pasch. Dig.art. 4039. The rights acquired by virtue of that ordinance were clearly acquired by onerous title, and belonged to the volunteer and his wife as common property, provided he had a wife at the time of the acquisition. The donations granted to those who participated in the battle of San Jacinto and to others by the act of December 31, 1836, were not in discharge of any legal obligation, but were a gratuitous bounty, extended by the republic in grateful recognition for services which had already been rendered The latter are properly held the separate property of the grantees. Ames v. Hubby, 49 Tex. 705.

We have no direct evidence whether Nixon had married the second wife or...

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