Wife v. Wife

• Decision Date: 01 January 1855
• Citation: 14 Tex. 69
• Parties: PORTIS AND WIFE AND OTHERS v. HILL AND WIFE AND OTHERS. [Note 16.]
• Court: Texas Supreme Court

14 Tex. 69

PORTIS AND WIFE AND OTHERS

v.HILL AND WIFE AND OTHERS. [Note 16.]

Supreme Court of Texas.

1855.

Under the colonization law of 1823 the grantee of lands could alienate the same as soon as he had acquired the right of property therein, and the period of the acquisition of the right is referred by the 22d article to the date of the concession. The original grantee in this case had received a complete title in 1824, and the conveyance from him was dated in 1825, after performance of the condition of cultivation.

See this case as to trusts where the purchase-money is paid by one person and the deed taken in the name of another; as to proof after lapse of time; and as to right of action after death of both trustee and beneficiary.

Evidence of the oral admissions of a deceased party, made in the hearing of a single witness, and so entirely unsupported, not to say contradicted, by the other evidence in the case, ought certainly to be received after such a lapse of time with great caution and due allowance for the frailty of memory and the liability to mistake or forget the true import of the language used. (Note 17.)

Where A paid the purchase-money and took a conveyance to B of an undivided half of a tract of land, and after the death of A and B the heirs of B sued the grantor for partition, the court said: “They cannot recover in the capacity of trustees for the benefit of A, for they do not seek to recover in that capacity, and by bringing this action in their own right they have repudiated the trust relation.”

If this were an action of ejectment or of trespass to try title, it would be sufficient to defeat the plaintiff's action to show an outstanding paramount title in a third person. But being an equitable proceeding, (a suit for partition,) it was perhaps necessary for the defendants, to enable them to defeat the plaintiff's title on the ground of a resulting trust or an equitable title out of the plaintiffs, to show either that they had acquired that title or had some valid defense to urge against it. And if the latter, the holder of the title must have been made a party to the suit before his rights would be adjudicated upon by a court of equity. (Note 18.)

Where A sued B for a partition of land, an undivided half of which had been conveyed by the ancestor of B to the ancestor of A, and B set up as a defense that the purchase-money was paid by C, who was empresario of the colony, and that the conveyance was taken to the ancestor of A to avoid the law which forbade the said empresario to take or receive any portion of said lands, and that the same was fraudulent and void: Held, That B could not impeach the title on the ground of fraud, in which, if it had been made to appear, his ancestor was equally implicated with his vendee.

See this case as to defenses and parties in a suit for partition.

An acknowledgment by a person in possession that he does not claim adversely to one person does not preclude his possession from being adverse as to all others.

See this case as to forfeiture of land by infants abandoning the country.

Appeal from Austin. The grant to James Cummings was completed by the act of possession on the 16th of August, 1824. The deed from Cummings to James E. B. Austin was dated February 5, 1825. There was evidence that the land had been continuously cultivated from 1824 to the present time by persons claiming under Cummings. One of the defendants' pleas set up as a defense that the conveyance to James E. B. Austin was really and in fact for the sole use, benefit, and behoof of Stephen F. Austin, who was empresario of the colonial grant to him by that name; that the said conveyance was thus executed to avoid the law which forbade the said Austin to take or receive any portion of the said lands, and that the same was fraudulent and void.

William Cummings, the father of Samuel A. Cummings, died in 1828 or 1829. “Some short time after the death of William Cummings his widow went to the State of Kentucky, taking with her the defendant Samuel A. Cummings, then a child about two years old.” He returned some time in the year 1847.

G. W. Smith, for appellants.

J. W. Harris, for appellees.

WHEELER, J.

It is objected to the deed of the 5th of February, 1825, that it evidences a sale made before the expiration of two years from the date of the original grant, and before cultivation, and is therefore void.

The 22d article of the colonization law of 1823 (1 White, 588) declares that “the date of the concession of lands constitutes an inviolable law for the right of property and legal ownership.” The consequence of such right of property and legal ownership is the power of alienation. And there is no inhibition in the law of 1823, express or implied, of the right to alienate at any time after the right of property has been acquired. The 29th article declares that “every individual shall be free to leave the empire, and can alienate the lands over which he may have acquired the right of property agreeably to the tenor of this law.” In the case of Holliman v. Peebles this provision was considered as containing an implied inhibition of the right to hold the land acquired under the law after a permanent removal from or abandonment of the empire. (1 Tex. R., 692.) But it contains an express authority to alienate after the right of property shall have been acquired agreeably to the tenor of the law, and the period of the acquisition of the right is referred by the 22d article to the date of the concession. The right to sell, therefore, at any time after obtaining the grant and before leaving the empire seems clearly deducible from the terms and provisions of the law. The 23d article provides that “if after two years from the date of the concession the colonist should not have cultivated this land, the right of property shall be considered as renounced.” The vendee would doubtless take subject to this condition. But there is nothing in the law which would permit its performance within a less period than two years, or which necessarily requires performance by the original grantee in person. If performed within the two years, whether by the original grantee or by his vendee, the requirement of the law will have been fulfilled. (Jenkins v. Chambers, 9 Tex. R., 167.) But if proof of performance of the condition of cultivation were necessary in this case, it sufficiently appears by the certificate of the empresario attached to the deed, and by the evidence upon the trial, that it was performed by the grantee in person. There is therefore nothing in the objection.

But the right of the plaintiffs to recover in this action is questioned upon other grounds, which are entitled to more consideration.

The defendants, Portis and wife, pleaded in substance that the deed of the 5th of February, 1825, to the plaintiffs' ancestor, James E. B. Austin, was made for the sole use and benefit of Stephen F. Austin; that he was the real vendee, and that the plaintiffs' ancestor was but a mere nominal party to the deed, not having any real or beneficial interest in the land conveyed. If it was true that he was a merely nominal party to the deed, that the consideration passed from Stephen F. Austin, and the conveyance was made for his sole and exclusive benefit, it would seem that the nominal vendee was a mere naked trustee, having no estate, no interest in the lands conveyed which would pass to his legal representatives or which his heirs could take by inheritance; and there can be no question that the evidence conduces strongly, if not conclusively, to prove that such was the character of the conveyance. This is as clearly shown by the evidence which was admitted, and by that which was, we think, improperly excluded, as, perhaps, any fact of that nature could well be established by the testimony of living witnesses after so great a lapse of time. Not to mention in detail the evidence tending to that conclusion, it may suffice to observe that the witness Williams, who had the best means of information, and who speaks to the facts within his personal knowledge, testifies positively to the fact that Stephen F. Austin was the real party to the controversy, and that the consideration passed from him. The testimony of Chrisman and others intimately acquainted with the parties and their actings and dealings in relation to this land strongly corroborates his statement, and there is nothing in the evidence to the contrary. The land was always claimed by Stephen F. Austin, and never by James E. B. Austin. The acts and declarations of the former, asserting title in himself, were open, public, and notorious; and though they must have been known to the latter, it does not appear that he ever asserted any claim to the land whatever. It was not even known to some, it seems, to most of the witnesses intimately acquainted with the parties, that the deed had been taken in his name. He was a young man, living with his brother, Stephen F. Austin, at the time, industrious and trustworthy, the witnesses say, but having but little if any pecuniary means of his own. He had his brother's confidence, doubtless, and appears to have been but the passive instrument, whose name was used by his brother in taking the conveyance for himself and to his own sole use and benefit. He does not appear to have had, or ever to have supposed that he had, any interest in the land by reason of the conveyance being taken in his name. There is, in a word, everything to show that the right acquired under the deed was in Stephen F. Austin. The consideration passed from him, and he was the real vendee. Such unquestionably was the understanding of all the parties at and after the making of the deed; and, on the other hand, there is nothing to show that the plaintiffs' ancestor ever set up any claim of title or right in himself to the land conveyed during his lifetime, or that any one else ever set up any such claim under or through him during the lifetime...