Yates v. Houston

• Decision Date: 31 December 1848
• Citation: Yates v. Houston, 3 Tex. 433 (Tex. 1848)
• Parties: ANDREW J. YATES, Appellant, v. SAM HOUSTON, Appellee
• Court: Texas Supreme Court

3 Tex. 433

ANDREW J. YATES, Appellant,

v.SAM HOUSTON, Appellee

Supreme Court of Texas.

December Term, 1848.

Appeal from Harris County.

Where a court has jurisdiction of the parties and the subject matter, its judgment is reversible only in an appellate court; and cannot be questioned, or treated as a nullity, in a collateral action.

Where parties presented themselves as man and wife in Texas, in 1822; were registered as such in Austin's colony, where they settled, and were so reputed to be by the colonists, until the death of the man in 1827; and it subsequently appeared that the man had been previously married in 1809, in the state of Ohio, where a separation took place about the year 1818, between himself and his wife, and the latter shortly afterwards disappeared, so that no trace of her existence during the four years preceding the husband's emigration to Texas, as aforesaid, could be discovered or established: Held, that the rational presumption was that his first wife was dead; that there was no legal impediment to his contracting marriage with the second or reputed wife; and that such marriage must be presumed to have been actually entered into, notwithstanding the connection between the parties was illicit and criminal at its commencement. [7 Tex. 178;18 Tex. 103.]

The grants of land made to married men (colonists) under the colonization law of 1823 are community property; and, as such, subject to division between the surviving, and the heirs of the deceased, partner of the marriage. [6 Tex. 232;11 Tex. 513.]

The appellee, who was plaintiff in the court below, brought suit against the appellant on the 13th day of March, 1846, to try the title to one-half league of land situated in Liberty county. The venue was, by agreement of the parties, subsequently changed to Harris county.

It appears, from the record, that the land in controversy was the one-half of a league granted, in the year 1824, to one John Jiams, who, with his family, had emigrated to Texas, and settled in Stephen F. Austin's colony. The said John Jiams died in the year 1827, leaving two children by his first wife and three by his second, or reputed wife, Tabitha, who survived him, and subsequently intermarried with one David Harris. The title set up by the plaintiff in the court below was derived from the surviving wife of the said John Jiams, deceased, then Tabitha Harris, who, together with her husband, David Harris, conveyed the same to the plaintiff on the 2d day of December, 1827, which conveyance was duly recorded on the 28th of the same month. In support of his title, the plaintiff also introduced in evidence an authenticated copy from the records of the probate court of Harris county, showing that partition had been duly made of the league of land referred to; and that the one-half thereof, claimed by the plaintiff, had been assigned and set over by said court to the said Tabitha Harris, by whom it was afterwards conveyed to the plaintiff as aforesaid.

The title set up by the defendant was derived subsequently to that of the plaintiff, by conveyances to himself from the mother (the surviving parent) of said John Jiams, deceased, who resided in the state of Ohio; and from Ruth and John Jiams, Jr., the surviving children of said deceased by his first marriage. The facts relative to the separation of the deceased from his first wife, and his subsequent connection with his reputed wife, Tabitha, so far as the same are disclosed by the record, will be found stated in the opinion of the court.

A special verdict was found by the jury, and judgment rendered thereon in favor of the plaintiff, from which the defendant appealed.

A. J. YATES for appellant.

In the argument of this cause in behalf of the appellant, who, by stipulation between the parties, sets up in his defense a title in himself to the land claimed by the appellee, and described by the same metes and bounds as set forth in his petition, the appellant assumes the following preliminary positions, under the act of congress approved 5th February, 1840 [Laws of Texas, vol. 4, p. 137]:

1. The nature and character of the title to the land in question must be determined by the laws in force at the time the grant was made.

2. The inheritance of the estate of John Jiams, senior, must be determined by the laws of descent, distribution and inheritance in force at the time of his decease.

3. The protection and preservation of the rights of the parties, or their legal representatives, subsequent to the time that they accrued, must have been in accordance with the statutes from time to time made, which affected the same.

Upon these bases, the appellant sets up in his defense:

1. That the league of land, of which the appellee claims part, was a donation or gift from the sovereignty to the husband alone, and therefore was not community property, by virtue of which the appellee claims title in his grantors. [Ben. & Sli. Dig. enlarged, 281; L. Rep. 1 N. S. 99; Heirs of Roquier vs. His Executors, Id. 324; Gayoso de Lemos vs. Garcia, 1 White's Rec. 61, 62; Id. 592, 595.]

1st. Because the grant was made by virtue of the decrees of the sovereign constituent congress of Mexico of 11th and 14th April, 1823, and in conformity with the decree of the Mexican government of 18th February, 1823, which is also in accordance with the general colonization law of the same power, of 3d January, 1823; all of which declare the same to be a gift to the head of a family, or to a colonist, and without any consideration, but declaring, with the grant itself, the moving causes of the gift to have been vested in the donee. The constitutive act of the state of Coahuila and Texas is dated 15th August, 1824, being eight days after the date of this grant, so that the same could not have been made by virtue of, or under the authority of, said state, as averred in the petition.

2d. The grant expressly declares that it is made to the said John Jiams, his heirs and successors; and does not declare in any part that it was made for the benefit of his family or any portion of them; or that his having a family was one of the moving causes; but, on the contrary, it declares that the moving causes existed in himself; and this, notwithstanding he declares in his petition that he is a man of family, but does not say of whom his family consists. Under the laws in virtue of which the grant was made, it was fully competent for the authorities making it to have granted a league of land, or more, to a single man, whom they should find possessing those merits which they should consider as entitling him to that peculiar favor.

3d. There was no onerous condition in the grant which could in any wise be construed into a consideration for the donation. The law under which it was made provides that the date of the concession constitutes an inviolable law for the right of property and legal ownership; and although the right of property, or the donation, was to be considered as renounced in case the land was not cultivated within two years from the date of the concession, still no subsequent act or omission of the grantee could alter the title, as once vested, though it might operate as an escheat or defeasance of the same. But that defeasance could only be in favor of the sovereignty from which it emanated. [ Ibid. 591.]

4th. The concession having been made to John Jiams only, and not to himself and his wife, it would be a violation of the expressed declaration of the concession to give a part to his wife, as much as it would to give a part to any other member of his family; and even admitting, for the argument, that the quantity of land granted was extended on account of the donee having a family, the character of the title is not thereby changed. The settlements made by the Spanish government in Louisiana were still more explicit in respect to the increased quantity of land granted in case of the donee being a married man, requiring him to furnish evidence of his marriage; and in case of his having children or slaves, the quantity was still further increased. Notwithstanding these provisions, the title to the property has been uniformly adjudged to the donee and his heirs, and to no other person. [ Ibid. 232; L. R. 4 N. S. 212; 3 Cond. 273; L. & F. Frique vs. Hopkins et al.; Nov. Rec. Lib. 10, Tit. 4, l. 1; Novis. Rec. L. 5, Tit. 9, l. 2.] Hence it is concluded that the land sued for by the appellee was the separate property of John Jiams, the donee.

II. The proceedings of the probate court, which the appellee sets up as the title of his grantors, were null and void, because,

1st. The act of congress provides that the probate court shall hold its session on the last Monday of every month in the year, except in certain cases, in which exception this is not apparently included. The record of the court is dated 29th and 30th of May, 1837; as there is no provision for holding the court on Tuesday, or any two successive days, it is evident that, on one of those days, the court was unlawfully holden; and by reference to the calendar of that year, it will be seen that the court held its session on Tuesday, which was illegal. [Laws of Texas, vol. 1, p. 153.]

2d. The proceedings of the court in partition were not in accordance with the existing laws. [Ords. and Dec. 136.] The practice of the courts was prescribed by the laws of the state of Louisiana. The partition was made by commissioners appointed by the court, only one of whom verifies the return; the order of citation is not shown to have been complied with; the business of the succession is continued to the following term, and, without any order setting aside the continuance, the order for a decree of partition is made subsequently, and at the same term; the partition is made of part of the estate, setting aside the portion of only one of the claimants to the inheritance; there is no appraisement of the property; no reference to a notary; no homologation; and, in truth,...