71 Tex. 176 | Tex. | 1888
This case was reported for reversal by the Commission of Appeals at the last Galveston term and the opinion was adopted by this court, but a rehearing was granted. After a more thorough review of the record and the authorities bearing upon the questions presented we have concluded to affirm the judgment as to two of appellees and to reverse it as to the others. This renders it necessary to state the grounds upon which our conclusion is based.
The suit was brought by appellants against more than forty defendants to recover undivided interests in the Daniel Davis league of land in Fannin county. Prior to the August term, 1880, of the district court of that county, judgments by default were rendered against some of the defendants. Other defendants compromised and obtained a judgment by agreement for the lands respectively claimed by them. At the August term a trial was had between the plaintiffs and the defendants who had answered and had not compromised, and resulted in a judgment in favor of the latter. A motion for a new trial was filed and was overruled. Subsequent to the overruling of the motion for a new trial, and during the term, the defendants against whom judgments by default had been entered moved the court to set aside the judgment as to them, upon the ground that the citations were defective and would not support a judgment. This motion was granted. At a subsequent term the plaintiffs moved the court to hold for naught the judgment in favor of the other defendants, on the ground that the setting aside the judgment against some of the parties vacated it as to all, and at the same time moved the court to allow them to proceed to trial against all the defendants who had not compromised. This motion was refused and plaintiffs excepted. At the August term, 1885, a trial was had between the plaintiffs and the defendants against whom judgments by default had been formerly rendered and set aside, and resulted in a verdict and judgment in favor of the latter. A motion for a new trial was again overruled and plaintiffs gave notice of appeal. Two bonds were given, one to appeal from the first judgment and the other to appeal from the latter. Upon mo
In their answer to the motion for a rehearing, appellants call attention to the fact that the point raised by their assignment, that the court erred in not setting aside the first judgment altogether and in not allowing them to proceed against all the defendants in the last trial, was not passed upon in the former opinion, and ask that the question should be determined. We think the question of the vacation of the former judgment as an entirety by the setting aside of the judgments by default against some of the defendants, properly before us for consideration, and we will dispose of it here. It is to be noted that each of the defendants claims a separate parcel of the land as against the plaintiffs. Therefore the plaintiffs might have brought a separate suit against each, or at least for the recovery of each tract; and after the suit was brought against all, each defendant or set of defendants claiming each separate parcel might have claimed a severance and had a separate trial and judgment. (Ballard v. Perry, 28 Texas, 347.) Chambers v. Fisk, 9 Texas, 261, was such a case. There a severance was had, and after a verdict in favor of each defendant, the judgments were recorded in one entry and as but one judgment. The plaintiff appealed, giving one bond payable to all the defendants. The appeal was dismissed, the court holding that the judgments were several and that a separate bond should have been given payable to each defendant. This clearly recognizes the doctrine that if, in a case in which the defendants are entitled to sever, a severance be allowed upon the trial, there may be more than one final judgment, and it .follows as a consequence that the fate of the judgment in favor of one or more defendants is not dependent upon the result of a motion for a new trial made by the other defendants, or to vacate the judgment against them. In this case the defendants who had answered, and who obtained a verdict and judgment upon the first trial, were not responsible for the error which led to the setting aside of the judgment by default against the other defendants. It was not their fault that their co-defendants were not duly cited and that judgments by default were erroneously granted. It was incumbent upon plaintiffs to see that the service was perfected upon all the defendants before proceeding to trial; and if, having tried the case as to some (the others not being properly cited), they fail to get a verdict, they
It is not an unusual practice in this court in an appeal by a plaintiff from a judgment in favor of several defendants, each for a separate parcel of land, in which the defenses are in no way connected, to recover as to one or more defendants, and to affirm as to the others. (Wiley v. Posey et al., decided at the present term; Bayless v. Daniels, 8 Texas, 140; Houston v. Ward, Id., 124; Burke v. Cruger, Id., 66; Hopson v. Murphy, 4 Texas, 248.) For a discussion of the principles applicable to this matter, see especially Burleson v. Henderson, 4 Texas, 48.) This court can only render such judgment as it would have been proper for the court below to have rendered; and hence it follows that in our opinion in this class of cases, it is not improper mutually to sever the defenses after judgment, and when justice demands it, to grant a new trial as to some of the defendants, and to let the judgment stand as to others. We conclude that the court properly treated the judgment rendered in 1880, as final as to the defendants who then obtained a verdict, and did not err in refusing to allow plaintiffs to proceed to trial against them a second time.
The land in controversy was patented to “Daniel Davis, his heir or assigns,” by virtue of a headright certificate issued to him as the head of a family, by the board of land commissioners of Fannin county, on the second day of March, 1838. Appellant Margaret Boone claimed to have been the wife of Davis at the time the right to the certificate was acquired, and at the time of its issue and location upon the land, and sought a recovery of one-half of the league, based upon this claim.
Under this state of facts appellants insist that the certificate
On the other hand, as is said in Marks v. Hill, 46 Texas, 345: “It is believed that the contemporaneous construction was that the immigration and settlement in the State was the leading consideration of the grant;” and the tendency of our decisions has been to hold the doctrine that a certificate, when issued to a man as a head of a family or his heirs, inures to the benefit of the family who came with him to the country. (Babb v. Carroll, supra; Fishback v. Young, 19 Texas, 520; Edwards v. Beavers, Id., 513; Wheat v. Owens, 15 Texas, 246.) If his wife immigrates with him it was community property of himself and such wife; but if his family consisted solely of children, it was his separate estate. The leading object in granting a larger quantity of land to heads of families than to single men was not to encourage marriage but to increase the population of the country by inducing the immigration of families already formed. Daniel Davis became entitled to a league and labor of laud by virtue of his immigration to Texas with his family in 1834. His subsequent marriage to Margaret Bascus entitled him to no more. She and her former husband were entitled to a like quantity of land by virtue of their immigration in 1824; Davis was entitled to a league and labor of land by virtue of his original immigration, and being so entitled did not acquire a right to another upon his marriage with Margaret Bascus. We are of the opinion that the certificate granted to him must be deemed to have been issued by virtue of his original immigration as the head of a family, and that his third wife, Margaret, had no interest in it. Under the statute of December 18,1837, the wife only inherited from the husband when he left no children. (2 Laws Republic, 106.) Under the Spanish law-in force at the death of Davis, the widow who had not “sufficient means to live with the comforts to which she was accustomed” was entitled to one-fourth part of the estate of her deceased husband, provided it did not exceed a certain amount. (Schmidt’s Laws Spain and Mexico, p. 270, art. 1262.) This was, however, forfeited upon her marrying again. (Id., art. 1265.) The appellant Margaret married very soon after the death of Davis. It follows that, in our opinion, she wholly failed to show title to the land in controversy.
As to plaintiffs Jacob H. Humphrey and Mrs. Wainscott, there were no defenses shown to their claim for a recovery of
In 1852, Hartsfield conveyed a part of the league to C. Bombarger, who immediately took possession under his deed, but it was never duly registered. On the thirtieth day of November, 1865, Bombarger conveyed a part of the land sold to him by Hartsfield to H. B. Cobb, and in November, 1876, Cobb sold a part of this to appellee Stone. Bombarger testified, “I know the land owned by Cato Stone; it is a portion of the land I sold to H. B. Cobb, and which he sold to Stone. He went on it five or six years ago, and it .was then wild land—part of it brush-—
In 1854, Bombarger also sold a part of Ms tract to one Pyle," and the appellees, who are known in the record as the James heirs, claim a part of the tract so conveyed, consisting of twenty-five or thirty acres. The testimony shows that this small tract "had never been improved, and is still wild land.5 The James heirs used it for the purpose of getting timber, There was no evidence to justify a charge upon the statute of limitations as to defendants Cato Stone and the James heirs, and we are of the opinion that the court erred in giving a charge upon the statute of limitations as to them. The judgment will accordingly be reversed as to these defendants.
Under the undisputed facts of the case, it clearly appears that the defendants John Hulsey and John W. Hulsey made out the defense of limitations as against plaintiffs Jacob H. Humphrey and Olive T. Wainscott. It also appears by the uncontroverted evidence, that Margaret Boone never had any title to the land certificate or the land located by virtue thereof. The verdict having been for these defendants, and no other proper verdict being possible under the evidence, the judgment will be affirmed as to them without reference to errors in the charge of the court or in improperly admitting evidence. (See Bowles v. Brice, 66 Texas. 724, and cases cited on p„ 731.) The view we take of the case renders it unnecessary to consider the numerous assignments of error. The questions they present are not likely to arise on another trial.
In reference to the claim growing out of an alleged locative interest in Asa Hartsfield, it is proper to remark, that to sustain this claim, it must be proved that a contract to give a part of the land as a consideration for locating the certificate was made, and that the contract was complied with. But after such a lapse of time, as appears in this case, the contract and location may be established by circumstances, but the circumstances shown by the evidence should be sufficient reasonably to produce belief of the existence of the facts sought to be shown by them. The judgment will accordingly be affirmed
Ordered accordingly.
Opinion delivered June 12, 1888.