Vogelsang v. Dougherty

• Decision Date: 01 January 1877
• Citation: 46 Tex. 466
• Parties: D. VOGELSANG ET AL. v. W. W. DOUGHERTY ET AL.
• Court: Texas Supreme Court

46 Tex. 466

D. VOGELSANG ET AL.

v.W. W. DOUGHERTY ET AL.

Supreme Court of Texas.

1877.

APPEAL from Colorado. Tried below before the Hon. Livingston Lindsay.

The facts are sufficiently given in the opinion.

Delaney & Cook, for appellants.

F. Barnard, also for appellants.

John T. Harcourt, for appellees. I respectfully submit that there can be no grounds for misconception as to the legislative intention, in all the acts of the Congress of the Republic in securing to the heirs and next of kin of her deceased soldiers, the personal enjoyment of the gratuity of the Government.

The first act of 18th May, 1838, to provide for the settlement of deceased soldiers' estates, (Hart. Dig., art. 984,) was in full force until the passage of the act of 17th December, 1851. (Paschal's Dig., art. 1400.)

The third section of the act of 1838 (Hart. Dig., art. 986) prohibited the sale of any of the effects of any deceased soldier, unless the order of sale was approved by the Secretary of War.

It cannot be pretended, in the present case, that Dougherty was a citizen soldier, in the full exercise of his rights as a citizen, at the time he was shot by the Mexicans, while a prisoner of war, so as to bring him within the exception of the act of December 24, 1838. (Hart. Dig., art. 989.)

By the act of 14th January, 1841, (Paschal's Dig., art. 1398,) it was manifestly the intention to prohibit administration on the estate of any volunteer from a foreign country who lost his life in the military service of the Republic, unless it was by the authority of the heirs or next of kin; and to prohibit the sale of the lands of a deceased soldier without the consent of the heirs.

This was the leading idea. It was an act of justice, as well as an act of patriotic prudence, to keep men in the field, with the pledge of the Government that, if they lost their lives in her service, their heirs or next of kin should not be robbed of their lands, under the forms of probate sales.

It was legislative notice to land speculators that they could not remain at home and watch the Probate Courts, and purchase for a trifle, valuable lands that were bought with the best blood of the Texas veterans.

The opposing counsel rest their defense upon the technical grammatical construction of the language used in this act. They contend that, by the use of the words in the past tense--“may have fallen or died”--the law was only intended to apply to a class of volunteers who were killed or died before the passage of the act of 14th January, 1841. This construction would impute to the law-makers an unjust discrimination in behalf of certain volunteer soldiers.

The struggle for independence was still impending, and volunteer soldiers were needed to drive back the Indians, as well as to repel the invasion of Mexicans; and the same reason existed for “protecting the rights of the heirs and next of kin” of all soldiers. The act of 17th December, 1851, (Paschal's Dig., art. 1400,) leaves no ground for doubt as to the policy and intention of the act.

The preamble recites, that unauthorized persons have administered upon many estates of deceased soldiers, and sold the lands intended to be granted to the heirs of such soldiers, contrary to the intent of said acts.

It proceeds, then, by the first section, to repeal the acts of May 18, 1838, and December 24, 1838, and reaffirms the act of January 14, 1841, as having been all the time in full force and effect.

The sale of the 1,280 tract of land was made by Perry, as administrator of Dougherty, on the 1st day of January, 1850, contrary to the provisions of the act of 1838, and also contrary to the act of 1841. * * *

The sale was after the passage of the act of 17th December, 1851. By the third section of that act, the sale of the land, or land claims of any deceased soldier, was prohibited, without the consent of the heirs of such deceased soldier.

In the case of Harris v. Graves, 26 Tex., 580, the court say: “The administrator, by the plain terms of the statute, had no power to sell the lands of the deceased without the consent of the heirs, and the court had no power to grant a valid decree of sale,” &c. (Withers v. Patterson, 27 Tex., 493.)

It was a question for the jury to determine the fact--whether B. M. Dougherty was a volunteer soldier and died in the service of the Republic of Texas. The proof was abundant to authorize their verdict.

[Counsel discussed the testimony.]

But the pay for improvements, as allowed by the jury, makes it a costly victory, and we have assigned cross-errors, to be considered by the court, if it can be corrected without remanding the cause.

The finding of the jury is, in effect, that the sale of the land was in fraud of the law, and absolutely null and void.

In the case of Hatchett v. Conner, 30 Tex., 113, Judge Coke observes: “It is difficult to perceive how a party can honestly believe that his title is good, or how his possession can be in good faith, when he is unable to trace his title back to the Government--the only source of title to land. While a defective or irregular apparent title may be the basis of a recovery for improvements made in good faith, a void title (if such an expression may be used) cannot be. (Rogers v. Bracken, 15 Tex., 568;Pitts v. Booth, 15 Tex., 454;Robson v. Osborn, 13 Tex., 298.)

In the present case, the parties could not honestly believe their title to be good. They are chargeable with notice of the acts to “protect the rights of heirs and next of kin of deceased soldiers.” They were chargeable with notice that the tract of 1280 acres of land was granted to Dougherty, as a single man, for bounty land, under the act of December 4, 1837, (Hart. Dig., art. 1834,) and that he must have served twelve months or upwards in the army to be entitled to it. The administrator's report of the sale of the 1280 acres states that the land was granted for services in the army of Texas.

MOORE, ASSOCIATE JUSTICE.

This suit was brought, on the 11th day of September, 1873, by the appellee, W. W. Dougherty, in his own behalf, and as the agent for the other heirs of Burton M. Dougherty, to recover certain lands, situated in Colorado county, alleged to have been acquired by said Burton M. Dougherty, by virtue of military services rendered the Republic of Texas, now in possession of and claimed by appellants, the defendants in the District Court, through and under, as plaintiffs aver, an illegal and unauthorized administration upon his estate by the Probate Court of said Colorado county.

Although some comment is made by appellees' counsel upon the fact that no decree, confirming the sale of one of the tracts of land sued for, is found upon the minutes of the Probate Court, as it is evident, from the record, that the action was brought and tried in the court below, upon the hypothesis of the illegality of the administration, and not because of any defect or irregularity of the proceedings had in said court, in the course of said administration, however great, it is only necessary for us at present to inquire, whether the Probate Court of Colorado county had authority to grant original administration upon the estate of Dougherty, as it did, in 1843, and letters de bonis non, in 1849, and whether it could confer upon the administrator last appointed, power and authority to sell the lands belonging to said estate.

The objection made to the validity of...