35 S.W. 792 | Tex. | 1896
Of the many grounds of error presented, we deem it unnecessary to consider but one, and as applicable to that one the following statement of the facts will be sufficient for its discussion.
The land involved in the case as presented in this court is a part of a league and labor headright survey granted to John Grigsby, which was the community property of himself and his wife Louisa Grigsby. John Grigsby died in 1841, after which, in the year 1842, the patent for the land was issued by the Republic of Texas in the name of the said John Grigsby.
At his death, John Grigsby left surviving him seven children by a former marriage; two children by his wife Louisa also survived him, one of the children of the latter marriage being Daniel B. Grigsby, one of the plaintiffs in the court below, and the other the mother of __________ Aspley, who was made a defendant in the original suit, but whose right was recognized, and he was subsequently treated as a co-plaintiff. After the death of John Grigsby, his surviving widow married Bales Eden, of which marriage the plaintiff Maria Louisa Swindle, née Eden, was born in 1843, and within a few days thereafter her mother Louisa died
Administration was had upon the estate of John Grigsby, and in the *228 year 1848 the land was partitioned by order of the Probate Court of Anderson County among the nine children of John Grigsby, no notice being taken of the interest of Louisa in making the partition, and nothing given to her child by Eden. The land was divided among the parties as the heirs of John Grigsby, deceased.
The plaintiffs below sued the defendant Cole and many others to partition lands in this survey and another, claiming the interest that they inherited from their mother, to which Cole pleaded, among other things, the statute of three years limitation. To a number of the tracts of land embraced in this survey, plaintiff in error Cole showed regular chain of title from the heirs of John Grigsby, as it was set apart and partitioned by the court as above stated. It is not denied that, as to some of these tracts, his proof of title and possession was sufficient to sustain his plea of limitation, if it were applicable to the case as shown by the evidence.
It is unnecessary to go into a detailed statement of the facts of this case for the purposes of this investigation. Cole asked the court below to give to the jury a charge on the three years' statute of limitation which was in proper form and was refused by the court, which refusal was sustained by the Court of Civil Appeals, as to the land embraced in the survey patented in the name of John Grigsby, for the reason that, so far as the interest of the plaintiffs as the heirs of their mother was concerned, the statute of three years' limitation would not apply, which ruling presents the only question that we propose to discuss.
John Grigsby was dead at the time the patent was issued in his name, and the common law being then in force in this State, the patent was void. (Dev. on Deeds, sec. 187.) On December 24, 1851, the Legislature of this State enacted the following law:
"All patents which have heretofore been issued by the authority of the Republic or State of Texas in the names of persons deceased at the time of issuing such patent, and all patents to land which may be issued hereafter by authority of the State of Texas in the names of persons deceased at the time at which said patents may be issued, shall be to all intents and purposes as valid and effectual to convey and secure to the heirs or assignee, as the case may be, of such deceased persons the land so patented, or which may be so patented, as though such deceased person had been in being at the time such patents bear date." (Sayles' Rev. Stats., art. 3951.)
This writ of error was granted under the belief that the above law had the effect to place the legal title to the land in the heirs of John Grigsby, the same as if the patent had been issued in the name of such heirs, but upon more careful examination of it we conclude that the law has only the effect to make the patent legal and valid, as to the heirs of John Grigsby, for the same interest they would have taken if he had been living at the time the patent was issued and had died subsequently, which would have been one-half of the land. In other words, under the law, the rights of the heirs are just what they would have been if the patent had issued in the life time of John Grigsby instead of after his *229 death. The law quoted did not have the effect to vest in the heirs of the patentee the legal title to the entire tract of land. It did not in any way affect the interest of the heirs of the wife. Whether or not a proper construction of the act would make valid the patent as to the wife's interest is not before us on this writ of error; be that as it may, their rights were secured under the certificate, location and survey, which is sufficient title to entitle them to recover.
It follows necessarily that in the partition of the land as the property of John Grigsby, between his heirs, the interests of the heirs of Louisa Grigsby were not in any way affected and did not pass by the decree of partition to the heirs of John Grigsby, and therefore they could not convey such right to their vendees. As to the one-half of the land which belonged to the wife Louisa Grigsby and which descended to her children, the plaintiff in error Cole showed no title, and as to that half he did not connect with the sovereignty of the soil either by title or color of title. Under the authority of Thompson v. Cragg,
If the question of notice had been of any importance in the case, the fact that the land was granted as a headright to John Grigsby would be sufficient to charge the purchaser from his heirs with notice of the right of his wife and her heirs, but it was unimportant upon the question of limitation whether the parties had notice or not, and while it does not affect the judgment of the Court of Civil Appeals, we deem it proper to say that in so far as it was made to depend upon the fact of notice, if so intended, it is incorrect. Grigsby v. May,
We find no error in the judgment of the Court of Civil Appeals, and the judgment of the said court is therefore affirmed.
Affirmed.
In support of a motion for rehearing R.D. Coughanour, for plaintiff in error, urged:
A legislative grant of land in Texas, to the heirs of him in whose name a void patent therefor had been issued, subsequent to the time of his death, confers legal title upon them only, as if granted in the name of such heirs respectively, notwithstanding that others, by reason of the community ownership of the certificate by virtue of which the grant was made, might assert an interest in the land.
Citing: Fisher v. Blight, 2 Cv. 358; Newell v. The People, 3 Seld., 97; Const. 1845, art. 7, sec. 24; Grigsby v. May,
The motion was refused. *230
