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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 [3] That actual settlers under the act of marriage and that the second wife acquired 1856 did acquire a valuable right to their no interest therein.

| claims, and that such right or interest was The same conclusion, under an analogous of such character as to be the subject of constate of facts, is reached in Mills v. Brown, tract and assignable, we think is plain un69 Tex. 246, 6 S. W. 612, where it was held der our decisions. In Johnson v. Newman, that the right to a homestead donation has 43 Tex. 639, it was held that the right to its incipiency in the actual settlement of the acquire lands guaranteed to citizens of Texland, and that patent afterwards issued upon as by the Constitution of the Republic was completion of the occupancy will relate back an assignable right, and that a conveyance to the date of settlement.

of such right would entitle the grantee to There have been four very able opinions lands afterwards patented thereunder. It is filed in this case in the Court of Civil Ap- true that there is nothing in the original act peals, two by the majority and two dissent which in express terms says that settlers ing opinions. In these, a very full review shall have the right to sell their claims, but of the authorities, both in this state and in we think that such rigłat necessarily follows other states, upon the question at issue. is from the nature of the rights acquired under given. In view of these opinions, we deem the act. The right "to their lands" was it sufficient only to state the considerations

made absolute by the statute, subject only which induce us to conclude, as we do, that

to forfeiture by a failure to comply, within the title to the land patented to George Stiles

the time designated, with the provisions of had its inception in the conveyances under

the statute. Nothing was required of the which he acquired the two surveys, and that,

settlers which could not be done as well by

others as by themselves. Having the land being at that time a single man, the land

surveyed, the field notes returned to 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 is

the state, were acts which could be performsued after his marriage.

ed as readily by their assigns as by themThe act of August 26, 1856, was a pre-emp- |

selves. If any doubt whatever might have tion law, and those claiming under it are

existed relative to the assignability of these classed as persons entitled to pre-emptions

claims, it is certainly removed by the relief under the several statutes extending relief to

act of February 10, 1858, recognizing the aspersons holding under the several pre-emp

signs of settlers, which was passed prior to tion laws. Miller v. Moss, 65 Tex. 181. This

the marriage of George and Zilpah Stiles. act gave all actual settlers upon the reserve

It is probably true that, up to the time at the time of its passage the right to have

of actual survey of these lands, the right of “their lands" surveyed and patented provided

the settlers was a floating one, the boundtheir claims were surveyed, the field notes

aries of their claims not being fixed; but, returned to the Land Office, and 50 cents per

when the surveys were made, their claims acre paid within the time prescribed by the

were changed from floating ones to definite act. We can see no substantial difference be.

claims to the particular lands described in tween the rights acquired by actual settlers the field notes. The surveys, in our opinion, on the reservation under this act and the had the effect only to evidence an acceptright given to Mexican citizens under the act | ance and assertion of claim under the act of 1824, or the right which was a mere pref- of 1856 and a definite fixing of the bounderence right to purchase under which the l aries of their claims. The right itself to land in the Langlois Case, above, was acquir

160 acres of land, in, our opinion, had its inboth of the cases last mentioned, the ception in the act of 1856. lands had to be surveyed and the purchase Much stress seems to be laid by the majorprice paid; yet it was held that the rights ity of the Court of Civil Appeals upon the acquired in the first case, by virtue of being question as to whether or not there was a a Mexican citizen and making application for contract, express or implied, between the à grant, and, in the second, by virtue of a | state and the Rawlses. We do not think it statute which gave a preference right to necessary, in order to establish the validity purchase, amounted, under the community of a claim to land under the various settlesystem, to inception of title and impressed ment acts-at least as against every one but the lands afterwards granted with the char the state that the elements of contract acter of the holding at the time the right should be shown to exist. In the settlement was acquired. Nor can we distinguish any of vacant lands of the state, many consideramaterial difference between the right granted tions of policy were involved. The state had to settlers under the act of 1856 and the the right to dispose of its lands in any manrights acquired by settling on land under ner deemed proper by it, and, as to third homestead donation statutes. In all of these 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 apvation. 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 We do not deem it material to determine thrown open to settlement as theretofore. whether the rights which the Rawlses acUpon an acceptance of the act and location quired by the act of 1856, and their surveys of the road, the reservation was automatical thereunder, were revocable by the state until ly diminished to a strip of land 60 miles the purchase money was paid. As was said wide or 30 miles on each side of the road in the Creamer Case: as located. During the time the act remain | "From the time of the initial steps, the seted in force from 1853 until August, 1856, tlement, they have the right to hold and use while it is true that actual settlers acquired the land as owners against any one but the no interest by settlement which they could state, and against the state at least so long enforce, and were therefore only naked tres as they comply with the law and it remains passers upon the public domain, it is no

unchanged." doubt also true that settlers were attracted to this reserve by virtue of the quality of

We conclude that the lands were the septhe lands embraced therein, confidently be

arate property of George Stiles, subject to lieving that, whenever the reserve should be

the right in the community to reimbursement opened for settlement, the state would pro

for the community funds afterwards used tect them in the settlements they had made.

in completing the right to obtain patents.

Having concluded that the Court of Civil That such would not be done was, of course,

Appeals was in error in holding that the land a risk which they assumed. It is not nec

belonged to the community of George and essary, in order to support the state's recog

Zilpah Stiles, it becomes our duty to connition of these claims, that they should have

sider whether other matters raised in appelany validity prior to the time of their recog

lants' (defendants') brief require a reversal nition.

of the trial court's judgment. [4] The granting of lands to settlers with

[5] Error is assigned upon refusal of the in the state was a matter which addressed

trial court to make the executors under the itself solely to the Legislature which had in

will of Mrs. Mullins parties to the suit. The charge the direction of the state's policies in

executors were independent of the court, but that regard; and when the time arrived to

had no special powers, and, there being no open this reservation for settlement, the

debts of the estate at the time of the trial, project of building the railroad having fail

they had no interest as executors in the proped, it was clearly within the power of the

erty. Consequently there was no error in state to say whether consideration should be

refusing to make them parties. given to those who, during the period of

Complaint is made of paragraph 3 of the reservation, had settled thereon, and what

court's charge and of the refusal of defendsuch consideration should be. The Legisla

ants' special charges numbered 6, 7, and 8, ture determined that such settlers should be

all of which relate to the question of limitainvested with a right to what it termed

tion. These charges paraphrased are sub“their claims," not exceeding 160 acres. stantially as follows: Thereby, the Legislature recognized that such Paragraph 3 is to the effect that if the jury settlers had claims of some character which should find that Mrs. Stiles at the death of merited consideration by the state. It is no her husband took and retained possession of answer to the existence of these claims, as the property as her own, and never recognizthus recognized, that the Legislature also re ed any rights of plaintiff's 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

asserting the adverse right; or by such acts of same, then they should find for the defend

unequivocal notoriety in the assertion of such ants as against such of the plaintiffs, if any, adverse and hostile claim that they will be as knew that she was in possession and presumed to have notice of such adverse right." claiming the property as her own, if she was. Phillipson v. Flynn, 83 Tex. 582, 19 S. W. 138.

Special charge No. 6 was to the effect that "In order to put the statute of limitation in if upon the death of her husband Mrs. Stiles operation, the cotenant not in possession must believed the property to be her own and held

| have actual knowledge of the fact that the adverse and continuous possession thereof

cotenant in possession is disputing, his right to

the property, or such cotenant's possession and for ten years, claiming it as her own, using,

assertion of hostile claim must be so notorious cultivating, possessing, and enjoying it as

as to authorize the presumption that the other her separate, sole, and individual propertyjoint owner has knowledge thereof." House for ten years, adversely to the plaintiffs, et al. v. Williams et al., 16 Tex, Civ. App. 122, then it was not necessary for her to notify 40 S. W. 414. plaintiffs of such possession, and in such event the jury should find for defendants.

The abové principles are well established Special charge No. 7 was to the effect that by a long line of authorities in this state. if Mrs. Stiles believed the property her own | Alexander v. Kennedy, 19 Tex. 488, 70 Am. upon the death of her husband, and took and | Dec. 358; Peeler v. Guilkey, 27 Tex. 358; retained possession thereof as her own, and Bailey v. Trammell, 27 Tex. 328; Moody v. had peaceable and adverse possession thereof Butler, 63 Tex. 213; McDougle y, Bradford, from the death of her husband until her 80 Tex. 565, 16 S. W. 619; Keith v. Keith, death, then they should find for the defend- 39 Tex. Civ. App. 363, 87 S. W. 385; Newcomb ants.

v. Cox, 27 Tex. Civ. App. 583, 66 S. W. 338; Special charge No. 8 was to the effect that

as to the effect that | Garcia v. Illg, 14 Tex. Civ. App. 482, 37 S. if the jury should find that Mrs. Stiles be-/W. 471. lieved the property her own upon the death The third paragraph of the court's charge of her husband, and took and retained pos- presents no affirmative error; consequently, session thereof as her own, and had peace

it was the duty of the defendants, if not satable and adverse possession thereof from

isfied with the charge, to present a charge the death of her husband until her death,

which supplied the omission. None of the and that the plaintiffs knew that she was so

special charges referred to correctly states holding and claiming it, or "that they, in the

the law of limitations as applied to the reexercise of such care and diligence as an or

lation of cotenancy. To render them proper dinarily careful and prudent person would

as applied to the particular case, they should have exercised under similar circumstances,

have informed the jury that Mrs. Stiles, should have known that she was so holding

upon the death of her husband, took possesand claiming such property, then you will

sion of the property as cotenant of the find for the defendants."

plaintiffs; and that her possession would be [6, 7] To each of special charges 7 and 8 is

presumed to be in right of the common title

unless the jury should believe from the eviadded this paragraph:

dence that she repudiated the rights of the "By 'peaceable possession, as used in this in- plaintiffs, and that such repudiation was struction, is meant a continuous possession, not known to plaintiffs, or that her possession interrupted by adverse suits to recover the prop

and assertion of hostile claim was of such erty, and by 'adverse possession' is meant an actual and visible appropriation of the land un

notorious character as that notice thereof der a claim of right inconsistent with and hostile

would be presumed. to the claim of others."

[8] Objection was made to the admission “The possession of a cotenant or tenant in in evidence of the field notes of the two surcommon will be presumed to be in right of the veys taken from the records of the county common title. He will not be permitted to surveyor of Ellis county. We believe these claim the protection of the statute of limita- / field notes were admissible for the purpose tions unless it clearly appears that he has re

of showing the fact and date of the surveys pudiated the title of his cotenant and is holding adversely to it. Possession and payment of

and the certificate or right under which the taxes on the property do not constitute the

surveys were made. Stout v. Taul, 71 Tex. assertion of an adverse right. There must be

438, 9 S. W. 329. That the act of August 26, something more. Alexander v. Kennedy, 19 1856, did not require the field notes to be Tex, 496 (70 Am. Dec. 358]. The acts relied recorded in the county, but merely returned upon by the tenant in common in showing an

to the land office, we think does not affect ouster of his cotenants and the assertion of an adverse claim should be more certain and un

the admissibility of the county records. The equivocal in character than would be necessary act of 1856 was not intended in any way to in ordinary cases where there is no privity of affect the general statutes upon the subject of keeping the records of surveys made by the lands, and he was personally account. the county and district surveyors.

able to the plaintiffs for their half of the Defendants also presented a special charge rent. George Stell, however, never having instructing the jury not to consider the re- been in possession of the property, either citals in these field notes as evidence of the personally or in a representative capacity, facts therein recited. This charge was prop and never having collected or received any erly refused for the reasons already stated, of the rents, we think was not personally and for the further reason that, by instruct- liable to the plaintiffs on that account; and ing the jury peremptorily that the land was to that extent the judgment of the trial court the separate property of George Stiles, con- is erroneous. sideration of all evidence relating to the We conclude that the judgment of the title up to the time of the death of George Court of Civil Appeals should be reversed, Stiles was withdrawn from the jury.

and that the judgment of the trial court in [9] Objection was also made to the admis- so far as it is against George Stell personalsion of the testimony of certain of the plain- ly for one-half of the rent should be reverstiffs to statements and conversations with ed and reformed so as to deny such personZilpah Mullins during her lifetime, based al judgment for rent, and, as so reformed, upon article 3690, Revised Statutes 1911. As the judgment of the trial court should be af. we have heretofore held, the executors of firmed. Zilpah Mullins were not necessary parties to this suit. The inbibition against parties tes- PHILLIPS, C. J. The judgment recomtifying to conversations and transactions mended by the Commission of Appeals in with the deceased is limited to actions by or the above case is adopted and will be enteragainst executors, administrators, guardians, ed as the judgment of the Supreme Court. 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 HARPER v. STATE. (No. 5150.) v. Newton, 77 Tex. 508, 14 S. W. 157.

1101 Defendants requested a special charge (Court of Criminal Appeals of Texas. Oct. 30. based upon article 5707, Revised Statutes

1918. On Motion for Rehearing,

Dec. 4, 1918.) 1911, under which they were authorized to find, by presumption, that plaintiff Sam H.

11:1. ASSAULT AND BATTERY 92-AGGRAVATStiles was dead. The evidence showed that

ED ASSAULT - SERIOUS BODILY INJURY Sam H. Stiles was a single man and had EVIDENCE. moved from Texas many years ago, and that In prosecution of town marshal for aggrasome of the plaintiffs testifying had not vated assault, evidence held sufficient to sustain heard of him for a period of about fifteen a finding that a "serious bodily injury” was years. These facts, we think, are insufficient | inflicted. to raise the issue of presumption of death 2. ASSAULT AND BATTERY 64 - OFFICERS under the above statute. In Latham V. | MAKING ARREST-USE OF FORCE. Tombs, 32 Tex. Ciy, App. 270, 73 S. W. 1060, An officer making a lawful arrest may use it was held that the statute must be con- reasonable means necessary, taking care that strued to mean that the person referred to the force used is commensurate with the nemust absent himself from his home, and

cessity, under Pen. Code 1911, art. 1014,

subd. 5. proof of change of his residence from one state to another, and that he had not been 3. ARREST Ow63(3) - NECESSITY FOR WAR

RANT. heard of in the former state for a period of seven years, does not make a case within the

An officer may make an arrest without a statute.

warrant, where a felony or an offense against

the public peace is committed in his presence, (11, 12] The remaining assignments of er

ments or er under Code Cr. Proc. 1911, arts. 254–260. ror are but reiterations of those already considered, except that under the sixteenth' as- |

4. ARREST E 63(3)-NECESSITY FOR WARRANT

-Town MARSHALS. signment of error defendants contend that there was no basis in the evidence for a per

A town marshal may make an arrest with

out a warrant for a felony or an offense against sonal judgment against the defendants, or the public

mus, or the public peace committed in his presence, either of them individually for rent. We be

where the ordinances of the city confer such aulieve the judgment against defendant Hawthority, under Code Cr. Proc. 1911, art. 261. kins was proper. His possession, whether

5. ASSAULT AND BATTERY 92-AGGRAVAThe entered as executor or as devisee, was

| ED ASSAULT BY OFFICER – FORCIBLE REthat of a cotenant with the plaintiffs. As ex SISTANCE-EVIDENCE. ecutor under the will, his possession only In a prosecution of a town marshal for agextended to the interest of Mrs. Mullins in gravated assault and infiction 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 I [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 ROR-EXCLUSION OF EVIDENCE,

S. W. 816; Bruce v. State, 41 Tex. Cr. R. 27, In a prosecution of a town marshal for ag 51 S. W. 954. gravated assault while making an arrest for vio- [2-5] While there is no bill of exceptions lation of a traffic ordinance, there was no re-properly preserving it, we find that appellant versible error in rejecting evidence that the in

requested the court to instruct the jury that jured party had violated a traffic ordinance on

the burden was upon the state to prove an a previous occasion; issue being whether a

intent to injure. The charge was also obforcible resistance was being made.

jected to because it does not put this burOn Motion for Rehearing.

den upon the state; appellant in his brief in

sisting that article 1009 of the Penal Code, 7. CRIMINAL LAW 101(2)—CONVICTION IN

which provides that when an injury is caused COUNTY COURT – NECESSITY FOR SHOWING JURISDICTION.

by violence to the person the intent to injure Where a prosecution for a misdemeanor was

is presumed, is without application for the begun by an indictment returned to the district

| reason that appellant was an officer engaged court, which did not have jurisdiction, a con- !

in making an arrest and the injury inflicted viction in county court cannot be sustained in the exercise of this lawful purpose would where the record does not show that the cause not create the presumption named. See subwas transferred to the county court by order of division 5, art. 1014, Penal Code. It is true the district court as required by Vernon's Ann. that in making an arrest an officer may use Code Cr. Proc. 1916, arts. 483, 485.

reasonable means necessary, taking care that

the force used is commensurate with the necAppeal froin Garza County Court; A. R.

essity. Skidmore V.. State, 43 Tex. 93; Anderson, Judge.

Michie's Digest, Texas Crim. Laws, vol. 1, A. E. Harper was convicted of aggravated p. 481, and cases cited. The law throws this assa ult, and he appeals. Reversed and re protection around him, however, only while manded.

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.

Am. St. Rep. 944; Rasberry v. State, 1 Tex. E. B. Hendricks, Asst. Atty. Gen., for the

App. 661; English v. State, 34 Tex. Cr. R. State.

190, 30 S. W. 233. He may make an arrest

without a warrant where a felony or an ofMORROW, J. Appellant was assessed a fense against the public peace is committed fine of $25 on conviction for aggravated as

in his presence. Articles 251-260, C. C. P. sault under an allegation that he inflicted

This authority may be exercised by a town serious bodily injury upon J. W. Lovelady.

marshal where the ordinances of the city The appellant struck the injured party confer such authority upon him. Article 261, with a policeman's "billy," an instrument c. C. P. Such ordinance is not shown. It about 12 inches long, made of leather wrap.

seems quite doubtful whether these proviped around shot or metal of some kind.

sions would authorize the appellant, the town From the state's evidence it appears that ap

marshal of Post City, to arrest the injured pellant was a man about 30 years old, weighing 200 pounds, and Lovelady was about 63

party without a warrant for driving on the years of age and was standing at a water

wrong side of a guide post. Mundine V. cooler with a glass of water in his hand

State, 37 Tex. Cr. R. 5, 38 S. 'W. 619. The about to take a drink of water when he was

record shows, however, that the court instruck the blows complained of. Lovelady

structed the jury that appellant would not said that

| be culpable unless he used more force than

was necessary in arresting Lovelady. Ap“The blows were on the left side of my head,

pellant claimed to have acted in self-defense and he knocked the life out of me, and cut the

| on apparent danger. This issue was also subskin to the skull bone in two places. The other blow was sorter across my neck and did not

| mitted, and the decision of the jury against break the skin. * * * I was laid up a couple

him is supported by the testimony of a numof weeks, and suffered from the cuts on my head ber of eyewitnesses to the effect that the ina great deal. Could not wear my hat for about jured party was making no forcible resisttwo weeks.”.

ance 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 ished. not necessarily serious. I make this answer | [6] As the record is presented, we think in view of the fact that I know how the pa- there was no reversible error in rejecting the tient turned out afterwards."

| 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

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