Page images
PDF
EPUB

died, and her husband thereafter and during, cases, something had either to be done or the three years married his second wife and paid before title could issue. The act of with her completed the occupancy and ob- settlement in homestead donation cases is tained a patent. It was held that the prop held to be the inception of the title. erty belonged to the community of the first marriage and that the second wife acquired no interest therein.

The same conclusion, under an analogous state of facts, is reached in Mills v. Brown, 69 Tex. 246, 6 S. W. 612, where it was held that the right to a homestead donation has its incipiency in the actual settlement of the land, and that patent afterwards issued upon completion of the occupancy will relate back to the date of settlement.

[3] That actual settlers under the act of 1856 did acquire a valuable right to their claims, and that such right or interest was of such character as to be the subject of contract and assignable, we think is plain under our decisions. In Johnson v. Newman, 43 Tex. 639, it was held that the right to acquire lands guaranteed to citizens of Texas by the Constitution of the Republic was an assignable right, and that a conveyance. of such right would entitle the grantee to lands afterwards patented thereunder. It is true that there is nothing in the original act which in express terms says that settlers shall have the right to sell their claims, but we think that such right necessarily follows from the nature of the rights acquired under the act. The right "to their lands" was made absolute by the statute, subject only to forfeiture by a failure to comply, within the time designated, with the provisions of the statute. Nothing was required of the settlers which could not be done as well by others as by themselves. Having the land

There have been four very able opinions filed in this case in the Court of Civil Appeals, two by the majority and two dissent ing opinions. In these, a very full review of the authorities, both in this state and in other states, upon the question at issue, is given. In view of these opinions, we deem it sufficient only to state the considerations which induce us to conclude, as we do, that the title to the land patented to George Stiles had its inception in the conveyances under which he acquired the two surveys, and that, being at that time a single man, the land was his separate property, though the pay-office, and payment of 50 cents per acre to ments were made to the state and patents issued after his marriage.

The act of August 26, 1856, was a pre-emption law, and those claiming under it are classed as persons entitled to pre-emptions under the several statutes extending relief to persons holding under the several pre-emption laws. Miller v. Moss, 65 Tex. 181. This act gave all actual settlers upon the reserve at the time of its passage the right to have "their lands" surveyed and patented provided their claims were surveyed, the field notes returned to the Land Office, and 50 cents per acre paid within the time prescribed by the act. We can see no substantial difference between the rights acquired by actual settlers on the reservation under this act and the right given to Mexican citizens under the act of 1824, or the right which was a mere preference right to purchase under which the land in the Langlois Case, above, was acquired. In both of the cases last mentioned, the lands had to be surveyed and the purchase price paid; yet it was held that the rights acquired in the first case, by virtue of being a Mexican citizen and making application for a grant, and, in the second, by virtue of a statute which gave a preference right to purchase, amounted, under the community system, to inception of title and impressed the lands afterwards granted with the character of the holding at the time the right was acquired. Nor can we distinguish any material difference between the right granted to settlers under the act of 1856 and the rights acquired by settling on land under homestead donation statutes. In all of these

surveyed, the field notes returned to the land

the state, were acts which could be performed as readily by their assigns as by themselves. If any doubt whatever might have existed relative to the assignability of these claims, it is certainly removed by the relief act of February 10, 1858, recognizing the assigns of settlers, which was passed prior to the marriage of George and Zilpah Stiles.

It is probably true that, up to the time of actual survey of these lands, the right of the settlers was a floating one, the boundaries of their claims not being fixed; but, when the surveys were made, their claims were changed from floating ones to definite claims to the particular lands described in the field notes. The surveys, in our opinion, had the effect only to evidence an acceptance and assertion of claim under the act of 1856 and a definite fixing of the boundaries of their claims. The right itself to 160 acres of land, in our opinion, had its inception in the act of 1856.

Much stress seems to be laid by the majority of the Court of Civil Appeals upon the question as to whether or not there was a contract, express or implied, between the state and the Rawlses. We do not think it necessary, in order to establish the validity of a claim to land under the various settlement acts-at least as against every one but the state that the elements of contract should be shown to exist. In the settlement of vacant lands of the state, many considerations of policy were involved. The state had the right to dispose of its lands in any manner deemed proper by it, and, as to third parties, its grants depended in no sense for

validity upon the question as to whether or, quired the payment of 50 cents per acre for not the claimant had 'any right or obliga- the lands. Nor is it material, we think, that tion, either moral or legal, enforceable the Legislature also saw fit after March 1, against the state. A glance at the map will 1857, to authorize the sale of scrip at 50 cents show that the act of 1853 reserved from per acre, to be located upon the unapporactual settlement a strip of land approxi- tioned parts of the reservation. It is not mately 140 miles in width, extending from accurate to say that the purchasers of said the eastern boundaries of the state to the scrip acquired the same right as actual seteastern boundary of New Mexico (103d par- tlers at the date of the opening of the reserallel), and from that parallel, a strip ap- vation. Such purchasers could only locate proximately 110 miles wide, extending to their scrip upon portions of the reservation the Rio Grande. Within this broad domain not therefore segregated from the public were included some of the best portions of domain. These claims were protected from the state. The purpose of the act was to location so long as the claimants were not in induce the building of a railroad from the default in complying with the conditions neceastern to the western boundary of Texas, essary to complete their titles. That these with its consequent benefits to the state at lands had a money value in excess of that large. While the reservation was absolute of the great body of land which was opened so long as the terms of the act were not ac- to location under scrip purchased from the cepted, and the act was not repealed, it was Land Commissioner is evident-if proof of no doubt contemplated that, if the act were value were required-from the expressed connot accepted within a reasonable time, it sideration in the deeds to George Stiles. would be repealed and these lands would be thrown open to settlement as theretofore. Upon an acceptance of the act and location of the road, the reservation was automatical ly diminished to a strip of land 60 miles wide or 30 miles on each side of the road as located. During the time the act remained in force from 1853 until August, 1856, while it is true that actual settlers acquired no interest by settlement which they could enforce, and were therefore only naked trespassers upon the public domain, it is no doubt also true that settlers were attracted to this reserve by virtue of the quality of the lands embraced therein, confidently believing that, whenever the reserve should be opened for settlement, the state would pro

tect them in the settlements they had made. That such would not be done was, of course, a risk which they assumed. It is not necessary, in order to support the state's recognition of these claims, that they should have any validity prior to the time of their recog

nition.

[4] The granting of lands to settlers within the state was a matter which addressed itself solely to the Legislature which had in charge the direction of the state's policies in that regard; and when the time arrived to open this reservation for settlement, the project of building the railroad having failed, it was clearly within the power of the state to say whether consideration should be given to those who, during the period of reservation, had settled thereon, and what such consideration should be. The Legislature determined that such settlers should be invested with a right to what it termed "their claims," not exceeding 160 acres. Thereby, the Legislature recognized that such settlers had claims of some character which merited consideration by the state. It is no answer to the existence of these claims, as thus recognized, that the Legislature also re

We do not deem it material to determine whether the rights which the Rawlses acquired by the act of 1856, and their surveys thereunder, were revocable by the state until the purchase money was paid. As was said in the Creamer Case:

"From the time of the initial steps, the settlement, they have the right to hold and use the land as owners against any one but the state, and against the state at least so long as they comply with the law and it remains unchanged."

We conclude that the lands were the separate property of George Stiles, subject to the right in the community to reimbursement for the community funds afterwards used

in completing the right to obtain patents. Appeals was in error in holding that the land Having concluded that the Court of Civil belonged to the community of George and Zilpah Stiles, it becomes our duty to consider whether other matters raised in appel. lants' (defendants') brief require a reversal of the trial court's judgment.

[5] Error is assigned upon refusal of the trial court to make the executors under the will of Mrs. Mullins parties to the suit. The executors were independent of the court, but had no special powers, and, there being no debts of the estate at the time of the trial, they had no interest as executors in the property. Consequently there was no error in refusing to make them parties.

Complaint is made of paragraph 3 of the court's charge and of the refusal of defendants' special charges numbered 6, 7, and 8, all of which relate to the question of limitation. These charges paraphrased are substantially as follows:

Paragraph 3 is to the effect that if the jury should find that Mrs. Stiles at the death of her husband took and retained possession of the property as her own, and never recognized any rights of plaintiffs therein, and that

the plaintiffs, or any one or more of them, [estate between the parties claiming the propknew that she was so in possession and erty; and in order to affect the cotenants with claiming the property as her own, and that this adverse holding notice of such fact must she had peaceable and adverse possession be brought home to them, either by information thereof for ten years, using and enjoying the to this effect given by the tenant in common same, then they should find for the defend-asserting the adverse right; or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse right." Phillipson v. Flynn, 83 Tex. 582, 19 S. W. 138. "In order to put the statute of limitation in operation, the cotenant not in possession must have actual knowledge of the fact that the cotenant in possession is disputing his right to the property, or such cotenant's possession and assertion of hostile claim must be so notorious as to authorize the presumption that the other joint owner has knowledge thereof." House et al. v. Williams et al., 16 Tex. Civ. App. 122, 40 S. W. 414.

ants as against such of the plaintiffs, if any, as knew that she was in possession and claiming the property as her own, if she was. Special charge No. 6 was to the effect that if upon the death of her husband Mrs. Stiles believed the property to be her own and held adverse and continuous possession thereof for ten years, claiming it as her own, using, cultivating, possessing, and enjoying it as her separate, sole, and individual property for ten years, adversely to the plaintiffs, then it was not necessary for her to notify plaintiffs of such possession, and in such event the jury should find for defendants.

The above principles are well established by a long line of authorities in this state. Alexander v. Kennedy, 19 Tex. 488, 70 Am. Dec. 358; Peeler v. Guilkey, 27 Tex. 358; Bailey v. Trammell, 27 Tex. 328; Moody v. Butler, 63 Tex. 213; McDougle v. Bradford, 80 Tex. 565, 16 S. W. 619; Keith v. Keith,

Special charge No. 7 was to the effect that if Mrs. Stiles believed the property her own upon the death of her husband, and took and retained possession thereof as her own, and had peaceable and adverse possession thereof from the death of her husband until her death, then they should find for the defend-39 Tex. Civ. App. 363, 87 S. W. 385; Newcomb

ants.

Special charge No. 8 was to the effect that if the jury should find that Mrs. Stiles believed the property her own upon the death of her husband, and took and retained pos

session thereof as her own, and had peaceable and adverse possession thereof from the death of her husband until her death, and that the plaintiffs knew that she was so holding and claiming it, or "that they, in the exercise of such care and diligence as an ordinarily careful and prudent person would have exercised under similar circumstances, should have known that she was so holding and claiming such property, then you will

find for the defendants."

[6, 7] To each of special charges 7 and 8 is added this paragraph:

"By 'peaceable possession,' as used in this instruction, is meant a continuous possession, not interrupted by adverse suits to recover the property, and by 'adverse possession' is meant an actual and visible appropriation of the land under a claim of right inconsistent with and hostile to the claim of others."

"The possession of a cotenant or tenant in common will be presumed to be in right of the common title. He will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his cotenant and is holding adversely to it. Possession and payment of taxes on the property do not constitute the assertion of an adverse right. There must be something more. Alexander v. Kennedy, 19 Tex. 496 [70 Am. Dec. 358]. The acts relied upon by the tenant in common in showing an ouster of his cotenants and the assertion of an adverse claim should be more certain and unequivocal in character than would be necessary in ordinary cases where there is no privity of

v. Cox, 27 Tex. Civ. App. 583, 66 S. W. 338; Garcia v. Illg, 14 Tex. Civ. App. 482, 37 S. W. 471.

The third paragraph of the court's charge it was the duty of the defendants, if not satpresents no affirmative error; consequently, isfied with the charge, to present a charge which supplied the omission. None of the special charges referred to correctly states the law of limitations as applied to the relation of cotenancy. To render them proper as applied to the particular case, they should have informed the jury that Mrs. Stiles, upon the death of her husband, took possession of the property as cotenant of the plaintiffs; and that her possession would be presumed to be in right of the common title unless the jury should believe from the evidence that she repudiated the rights of the plaintiffs, and that such repudiation was known to plaintiffs, or that her possession and assertion of hostile claim was of such notorious character as that notice thereof would be presumed.

[8] Objection was made to the admission in evidence of the field notes of the two surveys taken from the records of the county surveyor of Ellis county. We believe these field notes were admissible for the purpose of showing the fact and date of the surveys and the certificate or right under which the surveys were made. Stout v. Taul, 71 Tex. 438, 9 S. W. 329. That the act of August 26, 1856, did not require the field notes to be recorded in the county, but merely returned to the land office, we think does not affect the admissibility of the county records. The act of 1856 was not intended in any way to affect the general statutes upon the subject

of keeping the records of surveys made by the county and district surveyors.

Defendants also presented a special charge instructing the jury not to consider the recitals in these field notes as evidence of the facts therein recited. This charge was properly refused for the reasons already stated, and for the further reason that, by instructing the jury peremptorily that the land was the separate property of George Stiles, consideration of all evidence relating to the title up to the time of the death of George Stiles was withdrawn from the jury.

[9] Objection was also made to the admission of the testimony of certain of the plaintiffs to statements and conversations with Zilpah Mullins during her lifetime, based upon article 3690, Revised Statutes 1911. As we have heretofore held, the executors of Zilpah Mullins were not necessary parties to this suit. The inhibition against parties testifying to conversations and transactions with the deceased is limited to actions by or against executors, administrators, guardians, heirs, or legal representatives. It has been held that the statute applies only to the particular classes of persons named therein and that legatees and devisees do not come within the meaning of the terms used. Newton v. Newton, 77 Tex. 508, 14 S. W. 157.

[10] Defendants requested a special charge based upon article 5707, Revised Statutes 1911, under which they were authorized to

the lands, and he was personally accountable to the plaintiffs for their half of the rent. George Stell, however, never having been in possession of the property, either personally or in a representative capacity, and never having collected or received any of the rents, we think was not personally liable to the plaintiffs on that account; and to that extent the judgment of the trial court is erroneous.

We conclude that the judgment of the Court of Civil Appeals should be reversed, and that the judgment of the trial court in so far as it is against George Stell personal. ly for one-half of the rent should be reversed and reformed so as to deny such person. al judgment for rent, and, as so reformed, the judgment of the trial court should be af firmed.

PHILLIPS, C. J. The judgment recommended by the Commission of Appeals in the above case is adopted and will be entered as the judgment of the Supreme Court.

HARPER v. STATE. (No. 5150.)

(Court of Criminal Appeals of Texas. Oct. 30,
1918. On Motion for Rehearing,
Dec. 4, 1918.)

ED ASSAULT SERIOUS BODILY INJURY
EVIDENCE.

In prosecution of town marshal for aggravated assault, evidence held sufficient to sustain a finding that a "serious bodily injury" was inflicted.

2. ASSAULT AND BATTERY 64

MAKING ARREST-USE OF FORCE.

OFFICERS

find, by presumption, that plaintiff Sam H. 1. ASSAULT AND BATTERY 92—AggravatStiles was dead. The evidence showed that Sam H. Stiles was a single man and had moved from Texas many years ago, and that some of the plaintiffs testifying had not heard of him for a period of about fifteen years. These facts, we think, are insufficient to raise the issue of presumption of death under the above statute. In Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S. W. 1060, it was held that the statute must be construed to mean that the person referred to must absent himself from his home, and proof of change of his residence from one state to another, and that he had not been 3. ARREST 63(3) NECESSITY FOR WARheard of in the former state for a period of seven years, does not make a case within the statute.

[11, 12] The remaining assignments of error are but reiterations of those already considered, except that under the sixteenth assignment of error defendants contend that there was no basis in the evidence for a personal judgment against the defendants, or either of them individually for rent. We believe the judgment against defendant Hawkins was proper. His possession, whether he entered as executor or as devisee, was that of a cotenant with the plaintiffs. As executor under the will, his possession only extended to the interest of Mrs. Mullins in

An officer making a lawful arrest may use reasonable means necessary, taking care that the force used is commensurate with the necessity, under Pen. Code 1911, art. 1014,

subd. 5.

RANT.

An officer may make an arrest without a warrant, where a felony or an offense against the public peace is committed in his presence, under Code Cr. Proc. 1911, arts. 254–260.

4. ARREST 63(3)—NECESSITY FOR WARRANT
-TOWN MARSHALS.

out a warrant for a felony or an offense against
A town marshal may make an arrest with-
the public peace committed in his presence,
where the ordinances of the city confer such au-
thority, under Code Cr. Proc. 1911, art. 261.
5. ASSAULT AND BATTERY
ED ASSAULT BY OFFICER
SISTANCE EVIDENCE.

92-AGGRAVATFORCIBLE RE

In a prosecution of a town marshal for aggravated assault and infliction of serious bodily

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

injury, evidence held to sustain a finding that [1] We think the evidence was sufficient to the injured party was not making a forcible re-sustain the finding of the jury that the insistance to arrest. jured party received a "serious bodily injury."

6. CRIMINAL LAW ~1170(1)—HARMLESS ER- Housley v. State, 55 Tex. Cr. R. 372, 116 BOR-EXCLUSION OF EVIDENCE. S. W. 816; Bruce v. State, 41 Tex. Cr. R. 27, 51 S. W. 954.

In a prosecution of a town marshal for aggravated assault while making an arrest for violation of a traffic ordinance, there was no reversible error in rejecting evidence that the injured party had violated a traffic ordinance on a previous occasion; issue being whether a forcible resistance was being made.

On Motion for Rehearing.

7. CRIMINAL LAW COUNTY COURT JURISDICTION.

101(2)-CONVICTION IN NECESSITY FOR SHOWING

Where a prosecution for a misdemeanor was begun by an indictment returned to the district court, which did not have jurisdiction, a conviction in county court cannot be sustained where the record does not show that the cause was transferred to the county court by order of the district court as required by Vernon's Ann. Code Cr. Proc. 1916, arts. 483, 485.

[2-5] While there is no bill of exceptions properly preserving it, we find that appellant requested the court to instruct the jury that the burden was upon the state to prove an intent to injure. The charge was also objected to because it does not put this burden upon the state; appellant in his brief insisting that article 1009 of the Penal Code, which provides that when an injury is caused by violence to the person the intent to injure is presumed, is without application for the reason that appellant was an officer engaged in making an arrest and the injury inflicted in the exercise of this lawful purpose would not create the presumption named. See subdivision 5, art. 1014, Penal Code. It is true that in making an arrest an officer may use reasonable means necessary, taking care that

Appeal from Garza County Court; A. R. the force used is commensurate with the nec

Anderson, Judge.

A. E. Harper was convicted of aggravated assault, and he appeals. Reversed and remanded.

essity. Skidmore v. State, 43 Tex. 93;
Michie's Digest, Texas Crim. Laws, vol. 1,
p. 481, and cases cited. The law throws this
protection around him, however, only while
he is making a lawful arrest. Carter v.
State, 30 Tex. App. 551, 17 S. W. 1102, 28

W. F. Kelly, of Post, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for the Am. St. Rep. 944; Rasberry v. State, 1 Tex.

State.

MORROW, J. Appellant was assessed a fine of $25 on conviction for aggravated as sault under an allegation that he inflicted serious bodily injury upon J. W. Lovelady. The appellant struck the injured party with a policeman's "billy," an instrument about 12 inches long, made of leather wrap ped around shot or metal of some kind. From the state's evidence it appears that appellant was a man about 30 years old, weighing 200 pounds, and Lovelady was about 63 years of age and was standing at a water cooler with a glass of water in his hand about to take a drink of water when he was struck the blows complained of. Lovelady

Mundine v.

App. 664; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233. He may make an arrest without a warrant where a felony or an offense against the public peace is committed in his presence. Articles 254-260, C. C. P. This authority may be exercised by a town marshal where the ordinances of the city confer such authority upon him. Article 261, C. C. P. Such ordinance is not shown. It seems quite doubtful whether these provisions would authorize the appellant, the town marshal of Post City, to arrest the injured party without a warrant for driving on the wrong side of a guide post. State, 37 Tex. Cr. R. 5, 38 S. W. 619. The record shows, however, that the court instructed the jury that appellant would not be culpable unless he used more force than was necessary in arresting Lovelady. Appellant claimed to have acted in self-defense on apparent danger. This issue was also submitted, and the decision of the jury against him is supported by the testimony of á number of eyewitnesses to the effect that the injured party was making no forcible resistance to the arrest, but was making a verbal A doctor described the wounds as apparent-protest; he having gone into a restaurant to ly having been made with some blunt in- eat his dinner and stated that he would go strument cutting through the flesh to the to the police station as soon as he had finskull bone. "The injuries were painful, but not necessarily serious. I make this answer in view of the fact that I know how the patient turned out afterwards."

said that

"The blows were on the left side of my head, and he knocked the life out of me, and cut the skin to the skull bone in two places. The other blow was sorter across my neck and did not break the skin. * I was laid up a couple of weeks, and suffered from the cuts on my head a great deal. Could not wear my hat for about two weeks."

*

ished.

[6] As the record is presented, we think there was no reversible error in rejecting the proffered testimony that the injured party

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
207 S.W.-7

« EelmineJätka »