State v. Zanco's Heirs

• Decision Date: 05 January 1898
• Citation: 44 S.W. 527
• Court: Texas Court of Appeals
• Parties: STATE v. ZANCO'S HEIRS et al.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 527

STATE v. ZANCO'S HEIRS et al.¹

Court of Civil Appeals of Texas.

January 5, 1898.

Appeal from district court, San Augustine county; Tom C. Davis, Judge.

Action by the state of Texas against the heirs of Charles Zanco and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. M. Crane, E. P. Hill, and Rufus Price, for the State. S. W. Blount and S. M. Davis, for appellees.

FLY, J.

The state of Texas, through W. A. Field, county attorney of San Augustine county, instituted this suit against the unknown heirs of Charles Zanco and a number of parties in possession of parts of the land, to escheat the same to the state. No heirs of Zanco appeared. The trial judge, after hearing the testimony, instructed a verdict for the appellees, who were claiming the land. The evidence shows that Charles Zanco was killed at the fall of the Alamo on March 6, 1836, and that under the provisions of the act of February 9, 1850, a certificate for one-third of a league of land was granted to his heirs. In a regular administration of the estate of Zanco an order of sale was granted by the probate court of Harris county, and the land certificate was regularly sold to William R. Baker, and the sale was afterwards confirmed by the court. There is no evidence as to when the administration was begun. The appellees, claiming the land, showed perfect title from William R. Baker.

The following agreement was entered into between the parties to this suit: "It was here agreed by the parties that all the defendants herein claim and hold the land under properly executed and recorded conveyances from and under Wm. R. Baker, the grantee in the foregoing, and that said defendants are the owners of said land, if the said administrator's deed is valid, and passed the title out of said estate of Charles Zanco to Wm. R. Baker." That agreement seems to have been lost sight of in briefing the case for appellant, and objections are raised to matters which cannot have any force in view of that agreement. Clearly, if the deed of the administrator was held to be valid, it was the duty of the trial judge to instruct a verdict for appellees, and there is no merit in the contention that the facts should have been submitted to the jury. The facts were all one way, and it was the duty of the judge to declare their legal effect. If his declaration was correct, this case must be affirmed, and, if not, a reversal will necessarily follow. On February 9, 1850, the legislature of Texas passed an act entitled "An act for the relief of the heirs of those who fell with Fannin, Ward, Travis, Grant and Johnson during the war with Mexico in the years 1835 and 1836," in which it was provided that "the adjutant general shall, and he is hereby required to issue to the heirs of those who fell with Fannin, Ward, Travis, Grant, or Johnson, their heirs or legal representatives, attorneys or assigns, certificates for headrights in right of those who were heads of families, for one league and labor of land, and in right of those who were single men, for one-third of a league of land." Pasch. Dig. art. 4158. It is contended by appellant that this act was passed simply to make a gift to the heirs of those who fell during the Texas revolution under the leaders named, and therefore the land did not become assets of the estates of such decedents. We are of the opinion, however, that it was nothing but a recognition of an express or implied contract or obligation on the part of the state government to soldiers who had given their lives in defense of their country, and, as has time and again been decided, the certificate became assets in the hands of the administrator. Ames v. Hubby, 49 Tex. 710; Rogers v. Kennard, 54 Tex. 35; Todd v. Masterson, 61 Tex. 619. That the act of 1850 was only a recognition of pre-existing rights...