Norton v. Cantagrel

• Decision Date: 18 December 1883
• Docket Number: Case No. 1391-3870.
• Citation: 60 Tex. 538
• Parties: MARY J. NORTON ET AL. v. F. J. CANTAGREL ET AL.
• Court: Texas Supreme Court

60 Tex. 538

MARY J. NORTON ET AL.

v.F. J. CANTAGREL ET AL.

Case No. 1391-3870.

Supreme Court of Texas.

Dec. 18, 1883.

APPEAL from Dallas. Tried below before the Hon. Z. Hunt.

Good & Coombes, for appellants.

A. H. Field, for appellees.

WILLIE, CHIEF JUSTICE.

The facts of this case show that S. G. Coombs and his first wife, together with their child, emigrated to Peters' colony as early as December, 1843, and settled upon and improved the land in controversy in February or March, 1844. In the month of May, 1844, they returned to Kentucky, where the wife and child died in June or July of that year. Coombs came back to Peters' colony early in 1845, and in 1847 married a second wife, Mrs. Emeline Coombs, the mother of the appellants in this cause. Mrs. Emeline Coombs was living with S. G. Coombs and constituted his family on the 1st day of July, 1848, and continued to live with him on the land in controversy till 1854, when she died.

On the 14th of November Coombs made claim to this land, consisting of six hundred and forty acres, as a settler in Peters' colony, making oath to the effect that he had emigrated to Texas and entered the colony as a colonist prior to July, 1848, with his wife and child; that he had since remained there and performed all the duties required of him as a good citizen, and that he had never before received any land under the Mexican government, the republic or the state of Texas. On the 16th day of March, 1855, a patent for the land was issued to Coombs from the general land office of the state.

Appellants claim one-half of the land, or three hundred and twenty acres, as heirs of said Emeline Coombs, their mother, and by inheritance from a deceased sister. The appellees claim through a deed made by S. G. Coombs to F. Cantagrel, dated May 9, 1855, and subsequent mesne conveyances to themselves.

As no children survived the first marriage of Coombs, the appellees have good title if the land was either his separate property or the community estate of himself and his first wife. But, if it belonged to the community estate of the second marriage, the judgment should have been rendered for the appellants.

That titles to land in Peters' colony, of the kind acquired by Coombs, were community and not separate property of the husband, is too well settled by the case of Hodge v. Donald, 55 Tex., 344, to require further decision. That case is not unlike the present in any important feature. There, as in this case, the wife died prior to the passage of the act of January 21, 1850, and hence no oath could have been made that she had resided on the land continuously to the date of the statute. Still the court held that it became a part of the property which she held in common with her husband, and that her children were entitled to it as her descendants in community. In fact the act of January 21, 1850, does not contemplate that the death of any settler previous to its date shall interfere with the right to the land which would have accrued had he or she lived. It allows the heirs or legal representatives of such settlers to obtain the land to which such settlers would have been entitled. See Pasch. Dig., art. 2230.

In the above case no particular stress is laid upon the fact that the wife had lived in the colony three years as...