Peak v. Swindle

• Decision Date: 10 May 1887
• Citation: 4 S.W. 478
• Parties: PEAK v. SWINDLE.
• Court: Texas Supreme Court

4 S.W. 478

PEAK v. SWINDLE.

Supreme Court of Texas.

May 10, 1887.

Appeal from Dallas county.

John Grigsby died in 1841, leaving nine children, of whom seven were by a deceased wife, and two by the wife who survived him. The land in controversy in this action was owned by himself and his surviving wife as community property, but the whole of it was partitioned out among the nine children, each one receiving an equal share. The surviving wife afterwards married again, and had one child, the appellee, Maria Louisa Swindle, who now brings this suit to obtain a new partition of the land, so that the one-half owned by John Grigsby shall be divided among the nine children, and the other one-half, which belonged to her mother, shall be divided between herself and the two children of her mother by Grigsby. For additional facts, see Grigsby v. Peak, ante, 474.

Stemmons & Field and Leake & Henry, for appellant. Richd. Morgan, Jr., and Jeff Word, Jr., for appellee.

STAYTON, J.

A history of this case may be found in the cases of Caruth v. Grigsby and Grigsby v. Caruth, 57 Tex. 259-273. In the case last mentioned it was held that the title of the appellee was superior to that asserted by the appellant, and that she was entitled to recover, unless her right was defeated by limitation. The brief of counsel for appellant presents some questions which were definitely settled on the former appeal, upon facts the same as are presented by the record before us; but as to those we see no reason to doubt the correctness of the former decision, and a further consideration of them becomes unnecessary.

The appellee, being a minor, married on August 24, 1859, and on the trial the court instructed the jury as follows: "You are instructed that the statute of limitations did not begin to run against the plaintiff, Maria Louisa Swindle, until the date of her first marriage, on the twenty-fourth of August 1859; and you are further instructed that the statute of limitations did not run from January 28, 1861, until the second day of September, 1866, when the statute of limitations commenced running again; and if you find the period of five years elapsed between the twenty-fourth of August, 1859, up to the twenty-eighth of January, 1861, and then from the second day of September, 1866, up to the date the constitution of 1869 went into effect, viz., December 3, 1869, you will find that the plaintiff's (Maria Louisa Swindle's) claim is barred by the statute of limitations. If, however, you find that five years had not elapsed between the times above specified and the adoption of the constitution of 1869, you are instructed then that the statute of limitations against Maria Louisa Swindle commenced running on the twenty-fourth of August, 1859, the date of her first marriage, and continued so to run until the twenty-eighth day of January, 1861, when it ceased to run until the thirtieth day of March, 1870, and then commenced to run again, and continued so to run until the eighteenth day of August, 1874, the date of the institution of this suit. You are therefore instructed, if the time which elapsed from the date of her marriage up to the twenty-eighth day of January, 1861, when added to the time which elapsed between the thirtieth day of March, 1870, and the eighteenth day of August, 1874, did not amount to seven years, then the said Maria Swindle is not barred by the statute of limitations."

The appellant asked the court to instruct the jury that the constitution of 1869 did not take effect as to the article in it declaring that "the statutes of limitation of civil suits were suspended by the so-called act of secession of the twenty-eighth of January, 1861, and shall be considered as suspended within this state until the acceptance of this constitution by the United States congress," until March 30, 1870. This was refused. If the statutes ran from September 2, 1866, until March 30, 1870, the adverse possession shown by the appellant continued for a sufficient period of time to bar the right of the appellee; but, if the constitution of 1869 became operative at the time it was ratified by the people, then the period of adverse possession, while the statutes of limitation were operative, was not sufficient to bar her right. In the former disposition of this case this court assumed, without particularly considering when the constitution ratified by the people in 1869 took effect, that it did not take effect until March 30, 1870; and the majority of the court held, assuming this to be true, that the condition of the country was such between September 2, 1866, and March 30, 1870, as to give effect to the constitutional provision above quoted; even in a case in which the statutory bar would have been complete under the statutes prior to March 30, 1870, but for the disturbed condition of the country.

The inquiry as to when the constitution ratified by the people in 1869 became operative is now directly presented; and, if it be true that it so became when ratified by the people, it is clear that the instructions given were correct, and that the judgment as to the appellee must be affirmed. Under the acts of congress known as the "reconstruction laws," delegates were elected to convene and frame a constitution for this state. The delegates assembled in convention on June 1, 1868, and adjourned on August 31st following, but again met in convention on December 7, 1868, and finally adjourned on February 6, 1869, after having framed a constitution. Under the act of congress of date April 10, 1869, the president of the United States, by proclamation, directed an election to be held, beginning on November 30, 1869, at which the people were called upon to ratify or reject the constitution which had been framed by the convention. This election was held on November 30th, and the first three days of December, and resulted in the ratification of the constitution thus framed, by a large majority. The act of congress providing for the submission of the constitution to the vote of the people also provided for the election at the same time of members of congress, members of the state legislature, and all the state officers provided for by the constitution to be submitted. The same act fixed a time at which the members of the legislature were to meet, if the constitution was ratified; and, in accordance with the requirement, the legislature met on February 8, 1870, and subsequently ratified the thirteenth, fourteenth, and fifteenth amendments to the constitution of the United States, and at the same time elected two senators to represent the state in the congress of the United States. By the act of March 30, 1870, this state was admitted to representation in congress; that act reciting the fact that "the people of Texas have framed and adopted a constitution of state government which is republican;" and, further, that "the legislature of Texas, elected under said constitution, has ratified the fourteenth and fifteenth amendments to the constitution of the United States; and whereas, the performance of these several acts in good faith is a condition precedent to the representation of the state in congress, therefore the said state of Texas is entitled to representation in the congress of the United States."

These acts, which led to the formation of the constitution, its adoption, and the admission of the state to representation in congress, not only evidence the opinion of congress that the constitution took effect before the state was admitted to representation, but also evidence the intention of the people, from whose will alone a constitution could have an existence, that it could be operative prior to the time the state was admitted to representation. If, however, we look to the instrument itself, the evidence of the intention of the people to make the constitution operative from the time of its ratification by the people is still more conclusive. The preamble declares that "the people of Texas * * * do hereby ordain and establish this constitution." When did the people "ordain and establish this constitution?" As their act, and not the will of congress, ordained and established it, this must have been accomplished when the will of the people was manifested at the election held on the last day of November and the first three days...