Norton v. Conner

• Decision Date: 17 June 1890
• Citation: Norton v. Conner, 14 S.W. 193, 77 Tex. 578 (Tex. 1890)
• Parties: NORTON <I>et al.</I> v. CONNER <I>et al.</I>
• Court: Texas Supreme Court

14 S.W. 193

NORTON et al. v. CONNER et al.

Supreme Court of Texas.

June 17, 1890.

Commissioners' decision. Consent case. Appeal from district court, Haskell county.

Ed. J. Hamner, for appellants. Foster & Sanders and Oscar Martin, for appellees.

HOBBY, J.

This suit was brought by John Q. Conner, Edson Washington, Julia and William Hall, and Rosa and Horace Goodtraveler, against J. E. Norton, T. W. Mays, F. P. Morgan, Ed. J. Hamner, W. C. Ballard, and A. C. Foster, for the recovery of the land in controversy. Defendants pleaded not guilty, stale demand, etc., and that one Charles Barnard purchased the land from John Conner, the patentee, in 1857. By special act of the legislature, in 1853, a certificate for one league and labor of land was issued to John Conner, Delaware chief, to be located, etc., upon the public domain, upon the same conditions as other land-warrants were under the general law. The act contained this language: "Which certificate shall not be sold or transferred by said Conner, but the land located by virtue thereof shall be solely for the use of himself and family." Appellees, who were plaintiffs below, claimed title as the heirs at law of John Conner, the original grantee, under the act before mentioned. Defendants claimed under a deed from said Conner to Charles E. Barnard, dated June 13, 1857. The defendant Foster, in addition to this, claimed under a deed from the plaintiff John Q. Conner and wife, to an undivided one-half interest in the land. Judgment was rendered in favor of all of the plaintiffs against defendants W. C. Ballard, J. E. Norton, T. W. Mays, F. P. Morgan, and Ed. J. Hamner, for the land, and in favor of defendant A. C. Foster against plaintiffs, for an undivided one-fourth interest in said land. All of the defendants appeal except Foster.

The sole question for determination is, did the court err in excluding the deed from John Conner to Charles E. Barnard, of June 13, 1857? The objections to the introduction of this deed, and upon which the court excluded it, were, in substance, (1) that, under the terms and conditions of the act granting the certificate to Conner, he was prohibited from alienating it or the land upon which it was located. In determining the force of this objection, which necessarily involves the proper construction of the special act of 1853, donating the certificate, the facts admitted on the trial may materially aid us. They are as follows: The grantee, John Conner was married prior to his removal to Texas, His wife died in 1838. One child, George, was the issue of this marriage, who is also dead, leaving heirs, but they are not parties to this suit. The grantee married again in 1840. The issue of that marriage is the present plaintiff, John Q. Conner. The grantee came to Texas in 1845, and remained until about 1860, when he returned to his wife and child, John Q. Conner, neither of whom have ever been in Texas. Upon his return to the Indian Territory, he found his wife, and mother of plaintiffs, living in adultery with one George Washington, and he appears not to have recognized her subsequently as his wife. All of the plaintiffs except John Q. Conner are the bastard children of the grantee's wife and Washington. She died in 1872, and the grantee died in 1874. It was admitted that Barnard, who received the deed to the land in June, 1857, paid a valuable consideration therefor. We think it plainly appears from the language of the act of 1853, donating the certificate to John Conner, Delaware chief, that its leading purpose was for the benefit primarily of the grantee, and incidentally that of his family, if such as was contemplated by the act existed. Promotive of this object, the sale of the certificate itself was prohibited, so that further advantage might accrue to the beneficiaries from its merger into realty by location. Even if the facts in this case had shown that such family as the law contemplated existed, still there could have been no restraint upon the power of alienation extending beyond the life-time of the grantee. If such a restraint was competent to be ingrafted upon the grant, and the heirs inherited the land under the special act, the result would have been to create, contrary to the policy of our law, an entailment or perpetuity; and if this act can be construed as only inhibiting the alienation during the life-time of the grantee, and the title then vested in his heirs, we would have the anomaly of an act bestowing greater privileges upon the donee's heirs, by giving them the power to alienate, when the original grantee, whose services are supposed to have merited the donation, was deprived of the right of alienation. This we do not think was intended. If there had been such a family of the grantee as we have referred to in existence, then, keeping in view the main purpose of the act, it might have been to the interest of Conner and family to have alienated it. If it had been manifestly to their interest to have sold the land, it would not have defeated the intention of the law to have done so; and it is not difficult to conceive of many circumstances which would have made it to the interest of the family which the act had in view to sell it. But we do not think that the facts in this case show that there was such a family; and, such being the case, there is stronger reason for the adoption of that construction of the law which would enable the grantee, John Conner, to alienate the land after its location. The grantee, John Conner, married in 1840. The plaintiff John Q. Conner is the only legitimate issue of that marriage who is a party to this suit. Neither he nor his mother have lived in Texas. The grantee came here in 1845, and remained until 1860. He found his wife living in adultery with one George Washington on his return to the Indian Territory, and he no longer lived with her. She died in 1872, and John...