Webb v. Webb

• Decision Date: 01 January 1855
• Citation: 15 Tex. 274
• Parties: JOSEPH WEBB AND OTHERS v. EMILY A. WEBB, ADM'X.
• Court: Texas Supreme Court

15 Tex. 274

JOSEPH WEBB AND OTHERS

v.EMILY A. WEBB, ADM'X.

Supreme Court of Texas.

1855.

Where the husband and wife emigrated to Texas in January, 1833, and the wife died in July, 1834, leaving two children by her said husband, and title was extended to the husband for a league of land as the head of a family, in 1835, and it further appeared that the husband had selected the land before the wife's death, but that the extension of the title was delayed by the refusal of the empresario to assent to it, he claiming the land as premium land, it was held that the land was not community property, and that the heirs of the wife were therefore not entitled. [20 Tex. 237;28 Tex. 192, 383.]

Appeal from Robertson.

F. L. Barziza and A. M. Lewis, for appellants.

T. Harrison, for appellee. The following authorities are deemed conclusive to sustain the judgment of the court below: Holloman v. Peebles, 1 Tex. 690;2 Id. 311;5 Id. 258;6 Id. 231;Yates v. Houston, 3 Id. 433; Houston v. Ijams, and authorities there cited; Edwards v. James, 7 Id. 372; Teal v. Robinson, 9 Id.; Creth v. Republic, 1 Id. 83;Kennedy's Heirs v. State, 11 Id. 108.

The record shows the emigration to Texas and settlement, as colonists in Robertson's colony, before the death of the wife, on the league of land which was granted. All the cases on the subject show that the consideration was performed, and the right attached by the emigration and settlement as colonists. Observe also that they applied for the land in her lifetime. It was then refused because claimed by Robertson as premium lands; thus recognizing them as colonists and their right to lands.

LIPSCOMB, J.

The appellee brought suit against the appellants to recover, as administratrix, the share of the land which her intestate claimed as one of the heirs of Jane Webb, deceased. The statement of facts, it is evident, is imperfect and carelessly drafted. It is as follows: The defendant, Joseph Webb, and his wife, Jane Webb, emigrated to Texas and settled as colonists in Robertson's colony, in the month of January, 1833. Jane Webb died in the colony and near the land in controversy, on the first day of July, 1834, leaving two children, a son and a daughter, by Joseph Webb. The son, Jesse, married the plaintiff in the month of ____, 1853, and died in the month of November, 1853, leaving one child which is an infant, and leaving the plaintiff his administratrix (this last is a mistake; she was appointed by the court administratrix) and his estate in debt. The daughter married Gholson, her co-defendant. A league of land was granted to the defendant Joseph Webb as a colonist of Robertson's colony by the government. The title is dated 12th of January, 1835. This is the same land described in the petition; and 800 acres out of the lower half of it was sold in the lifetime of Jesse Webb, deceased, to Robert Calvert. The land was selected by the defendant Webb before the death of Jane Webb, but not surveyed or titled at that time, and was claimed by Robertson as premium land. Robertson refused to title the land before her death; after the death of Jane Webb, consented that Joseph Webb might have the land.

The question presented by this statement of facts is, was the property now in controversy held by the husband and wife at the time of her death as community property? If it was, there is no question but that her heirs are entitled to the...