Stiles v. Hawkins

• Decision Date: 21 December 1918
• Docket Number: (No. 14-2591.)
• Citation: 207 S.W. 89
• Parties: STILES et al. v. HAWKINS et al.
• Court: Texas Supreme Court

207 S.W. 89

STILES et al. v. HAWKINS et al.

(No. 14-2591.)

Commission of Appeals of Texas, Section B.

December 21, 1918.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Sam Stiles and others against B. F. Hawkins and others. A judgment for plaintiffs was reversed by the Court of Civil Appeals (158 S. W. 1011), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and judgment of trial court reformed and affirmed by the Supreme Court as recommended by the Commission of Appeals.

Supple & Harding, of Waxahachie, and Langford & Chesley, of Hamilton, for plaintiffs in error.

S. C. Padelford, of Cleburne, and G. C. Groce, of Waxahachie, for defendants in error.

McCLENDON, J.

Plaintiffs in error brought this suit in trespass to try title against defendants in error to recover a one-half undivided interest in two surveys in Ellis county of 160 acres each, and for partition. The main question for our determination is whether the land involved was the separate property of George Stiles or the community property of George and Zilpah Stiles. Defendants in error are devisees under the will of Zilpah Stiles, and plaintiffs in error are the heirs at law of George Stiles.

The land sued for was a part of the Mississippi & Pacific Railroad reserve. It was surveyed on April 2, 1857, one survey for W. W. Rawls, and the other for J. T. Rawls. On January 25, 1858, W. W. Rawls conveyed his survey to George Stiles for $200 cash. J. T. Rawls conveyed to James Smith on January 12, 1858, and the latter conveyed to George Stiles for $330 on September 7, 1858. George and Zilpah Stiles married on November 25, 1858. On September 10, 1859, George Stiles paid at the land office $162 to cover patent fees and amount due the state of 50 cents per acre on the two surveys, and patents were issued to him as assignee of his grantors; the patents being dated September 13, and November 23, respectively, 1859, and reciting that the grants were made "by virtue of an act to authorize the location, sale and settlement of the Mississippi & Pacific Railroad reserve passed on the 26th day of August 1856." George and Zilpah Stiles lived on the land until the death of the former in 1886. Zilpah Stiles continued to live upon the land after the death of her husband until about 1890, when she moved to Cleburne and later to Missouri. She married a man by the name of Mullins about 1888. From the time of George Stiles' death until her death on December 13, 1909, she had possession of the land either in person or through tenants, cultivating it, collecting the rents, paying the taxes, and making some improvements, all of which were of a minor nature, except that about two years before her death she constructed a barn at a cost of about $600 to replace one that had burned.

The evidence showed that Mrs. Stiles visited Sam Stiles, one of the plaintiffs, and a brother of George Stiles, about twice a year for several years after the death of her husband; and Sam Stiles testified to a conversation between him and Mrs. Stiles, the effect of which, if true, amounted at least to a permissive use of the property by Mrs. Stiles during her lifetime. A similar conversation was testified to by one of the other plaintiffs. This suit was filed on January 27, 1910. Zilpah Stiles by will devised the land in controversy to the defendants and named as executors B. F. Hawkins and Larkin Newton. The will was filed for probate on February 2, 1910, and admitted to probate March 24, 1910, and the executors then qualified. The latter went into possession of the land and collected the rents up to the time of the trial. There were no debts except funeral expenses, and these had been paid when the cause was tried in October, 1911. The defendants answered by general denial, plea of not guilty, and specially pleaded the statutes of limitation of three, four, five, and ten years. They also, by appropriate pleadings, sought to have the executors made parties to the suit, which was denied. The cause was tried before a jury, and the court peremptorily instructed the jury that the land was the separate property of George Stiles, and on his death, there being no children, passed one-half to plaintiffs and one-half to Zilpah Stiles. The questions of limitation and rents were submitted to the jury, and upon their finding, in favor of the plaintiffs, judgment was rendered for plaintiffs for one-half of the land and one-half of the rents collected by the executors; and commissioners to partition the land were appointed. From this judgment, defendants appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court and rendered judgment for the defendants for all of the land, holding that the property was the community property of George and Zilpah Stiles. One of the judges of the Court of Civil Appeals dissented. 158 S. W. 1011, 1015, 1021, 1025.

Whether the land was the separate property of George Stiles or the community property of himself and wife is dependent upon the question as to whether the title had its inception in the conveyances to George Stiles or in the payment of the 50 cents per acre required to be paid to the state before patents could issue. Judge Hawkins states the general rule as follows:

"In a controversy like this, to which the state is not a party, involving an issue as to whether public land purchased from the state in the name of either husband or wife is community property or separate property, the status of the property must be determined by the character of the right by which the title thereto had its inception. Such, it seems, was the rule under the Spanish law; such has been the rule under the Revised Civil Code of Louisiana, in which state the community system prevails; and such is the rule under the statutes and decisions of this state." McClintic v. Midland Grocery Co., 106 Tex. 35, 154 S. W. 1158.

In order to determine that question, it becomes material to examine the statutes under which the surveys were made. On December 21, 1853, the Legislature passed an act by which it was designed to promote the construction of a railroad from a point in the east line of the state to a point on the Rio Grande river at or near El Paso. Under section 14 of this act, all of the vacant and unappropriated land that belonged to the state of Texas east of the 103d parallel of longitude and between the 31st and 33d degrees north latitude, and all vacant and unappropriated land belonging to the state west of said 103d degrees of longitude and between 30 degrees 30 minutes and 32 degrees north latitude, were reserved by the state until the track of the railroad should be located by the company provided for in the act. After the location of the track, reservation was limited to 30 miles on either side of the road, until the lands donated to the road under the act had been located in accordance therewith. Special Laws, 5th Leg. p. 12; Gammel's Laws of Texas, vol. 4. The road was never built, and on August 26, 1856, the Legislature passed an act opening the reserve to settlement. Section 1 of that act provides that the lands in said reserve shall be subject to location and sale as thereinafter provided from and after the 1st day of January, 1857. Section 2 reads:

"Sec. 2. That all persons who are now settled upon any portion of the said reserve belonging to the state, shall pay fifty cents per acre for his or her claim not to exceed one hundred and sixty acres, and the said parties are hereby required to have their lands surveyed by the district or county surveyor, and the field notes returned to the General Land Office by the 1st day of January, A. D. 1858, provided that all persons now resident on said reserve shall, on or before the 1st day of January, A. D. 1858, pay over to the Commissioner of the General Land Office the said amount of fifty cents per acre, for the amount of their claims. And the commissioner is hereby required to patent the surveys authorized by this section as other surveys."

Section 3 authorized the location of any genuine land certificate, etc., within the reserve after March 1, 1857; and section 4 authorized the Land Commissioner to sell scrip at 50 cents per acre after March 1, 1857, to be located upon any vacant and unappropriated land in the reserve. General Laws 6th Leg. p. 56; Gammel's Laws, vol. 4, p. 474. On November 28, 1857, an act was passed, by which settlers on the reserve were given until October 1, 1859, "to pay for their claims," and until April 1, 1858, to file their field notes in the land office. This act provides:

"Should any person fail to pay for his or her land by that time, the land so claimed by him, shall be subject to relocation as other public domain belonging to the state." General Laws 7th Legislature, p. 7; Gammel's Laws, vol. 4, p. 878.

By section 2 of an act passed February 10, 1858, which was for the relief of various preemption settlers and actual settlers in said reserve, it was provided "that all those actual settlers or their assigns" who were required under the act of August 26, 1856, to pay 50 cents an acre for their lands should have until January 1, 1859, to file their field notes in the land office. General Laws, 7th Legislature, p. 152; Gammel's Laws, vol. 4, p. 1024.

The respective contentions of plaintiffs and defendants with regard to the inception of title are substantially these: Defendants contend, and a majority of the Court of Civil Appeals held, that the Rawlses were mere trespassers upon the public domain and acquired no interest in the land by virtue of the act of August 26, 1856, except the bare right or option to purchase from the state at 50 cents per acre, and that until the purchase money was paid to the state they had no interest in the land which they could convey. Plaintiffs contend, on the other hand, that under the act of 1856 the Rawlses were granted by the state, as actual settlers, the lands settled upon by...