143 S.W. 259 | Tex. App. | 1912
John Bartley, it appears, made sale and transfer of his unconditional certificate to W. T. Montgomery and Bartley M. Ballard October 6, 1841. The location and survey of the 600 acres, however, appear not to have been made until September 11, 1855. The patent issued to the heirs of W. T. Montgomery and B. M. Ballard, assignees of John Bartley, for the tract February 22, 1870. No deed of sale appears by W. T. Montgomery to any one, and title to his one-half interest would appear outstanding, unless acquired by Wauhop by limitation. James W. Wauhop, the grantee in the deed mentioned, died in the year 1849 — the exact date not being shown — but prior to November 26th. He left surviving him as only heirs the three children, John W., Wm. A., and Sarah. Wm. A. Wauhop died without issue in the war between the states. John W. Wauhop was married to Mary J. Wauhop, sister of appellant, on September 16, 1861. On February 27, 1867, Sarah Wauhop, sister of John W., joined by her husband, executed a deed to John W. Wauhop, conveying to him her undivided half interest in the Bartley land; the deed reciting "$2.50 per acre for the whole number of acres ascertained and found to be in the survey." Under these facts, it must be said that John W. Wauhop, by inheritance, got from his father a one-third interest in such title as the father had, which was the one-half undivided interest of B. M. Ballard, and later inherited one-half of the third interest of his brother William. After his marriage, John W. Wauhop then acquired the interest of his sister, and this would be presumed to be community. The outstanding interest of Montgomery, if acquired, must in the record here rest upon limitation. That such interest of Montgomery could not have been acquired by James Wauhop by limitation in his lifetime is manifest, because he died in 1849, and the certificate was never located and the land surveyed until September 11, 1855. So John W. Wauhop could not be held to have inherited from his father a completed limitation title of the Montgomery interest. It appears, therefore, furthermore that John Wauhop's claim to the half interest of Montgomery must rest in bare adverse possession begun by him, but not completed, before his marriage. As to whether this character of claim would be sufficient to constitute that interest separate property is later discussed, and decided to the contrary. It follows, as to the Bartley survey, that one-fourth interest is shown to be separate property, by inheritance, of John W. Wauhop, one-half community by limitation title, and the sister's purchased interest of one-fourth, presumed to be community.
The C. A. Ballard survey is next considered. A conditional certificate for 640 acres was issued to C. A. Ballard in 1842. An unconditional certificate was issued to him, by virtue of the conditional certificate, on February 3, 1845. On February 3, 1845, O. A. Ballard made sale and transfer of the unconditional certificate to B. M. Ballard. On September 10, 1855, there was a location and survey for B. M. Ballard of 613 acres of land in Red River county, which is this survey in suit, under and by virtue of the unconditional certificate. Patent issued to B. M. Ballard, assignee of C. A. Ballard, on October 4, 1858. There is no evidence in the record to show that John W. Wauhop, or his father before him, had any deed or paper title to the Ballard survey. But to show that the title vested in the separate estate appellee relies, first, on a judgment of the district court of Red River county as muniment of title connecting to the deed before mentioned of B. M. Ballard for "1,280 acres"; and, second, upon title by statute of limitation of 10 years. As in proper connection here, the question of limitation is taken up first. It appears that the unconditional certificate was issued in February, 1845, but there was no location and survey under it *262 until September, 1855. It does not appear that there was location under the conditional certificate of 1842. So under the facts, and assuming that James Wauhop, the father, commenced his occupancy in 1844, it is manifest that he had no interest or right by reason of mere adverse possession under limitation laws that would descend to John W. Wauhop, one of his heirs, because it was in this record merely, in legal effect, occupancy of vacant, unappropriated public domain until the location and survey of the unconditional certificate in 1855, which was six years after his death. This reduces the question of title by limitation to adverse possession by John Wauhop before marriage, which, in the most favorable light to him, could not have begun before 1855, which was considerably less than 10 years before his marriage. As to whether the fact that limitation began to run before marriage would constitute it separate property is later discussed.
The judgment relied on as muniment of title is next considered. In September, 1870, N.W. and W. B. Guinne, claiming to own the Ballard survey in fee-simple title, sued Ballard Bledsoe in trespass to try title. It appears that on December 27, 1869, John W. Wauhop and his wife deeded the survey to Ballard Bledsoe under warranty deed. Later on, however, it appears that Bledsoe, being unable to pay out the land, reconveyed it to Wauhop. As a warrantor, John W. Wauhop made himself a party to the suit, and answered, first, that B. M. Ballard, in 1843, sold to James W. Wauhop "1,280 acres" of land, and that he paid for and was put in immediate possession of the same, and that there had been peaceable and uninterrupted possession of the same from that date to the date of the suit; that the deed of that date for 1,280 acres was given as evidence of the purchase of the same, but by oversight, inadvertence, and mistake the metes and bounds of the Ballard survey were omitted, and those only of the tracts purchased were described therein; second, the 10-year statute of limitation was pleaded. It appeared that B. M. Ballard had made a warranty deed to the Guinnes for the survey on June 20, 1870. The judgment in the case was simply a general judgment to the effect that the defendant "go hence without day and recover his costs." Mrs. Wauhop was not a party to the suit; and neither she nor those claiming under her are concluded by the judgment as to her rights. The effect of the judgment was simply to deny the plaintiffs therein a recovery. It did not vest any title in Wauhop; it was merely a general denial of any recovery to plaintiffs. It could not, therefore, be sustained as a muniment of title back to the deed of "1,280 acres," before mentioned, because it undertook to vest none, and neither did the pleading ask it to be done. Neither could it be said that there was evidence, if the proceedings in the suit were admissible as such evidence, going to show that James Wauhop had an equitable title to this survey, because he purchased and paid for the land, and was put in possession of the same.
At the time such claim would be made, a conditional certificate only existed as to this survey. Under the law of January 4, 1839, in force at the time, there was provided, as to conditional certificates, "that no sale of said claim to land by the individual entitled to the same of this government shall be valid in law and binding upon the person ruling the same until an unconditional deed shall be obtained by the grantee for said land." Paschal's Digest, art. 4167. A sale was against the policy of the law. Smith v. Johnson,
Mere adverse possession is the sole basis for the ownership, and it does not otherwise rest in any form of contract, conveyance, bond, or right. Article 2967 of the Revised Civil Statutes provides: "All property, both real and personal, of the husband, owned or claimed by him before marriage, that acquired afterwards by gift, devise or descent, as also the increase of all lands thus acquired, shall be his separate property." Article 2968 provides: "All property acquired by either husband or wife during the marriage, except that which is *263
acquired by gift, devise or descent, shall be deemed the common property of the husband and wife." So from the statutes defining their separate and community estates, the property gets its character as belonging separately to the husband or wife, or in common to both. If the property is "owned or claimed" before marriage, it is the separate property of the spouse owning or claiming same; if it is "acquired" by either after coverture, it is in common to both. The word "acquired" in its context was not intended, we think, to be used in the limited sense of actually purchased, but is used in the broad sense to denote all property which might come to the husband or wife during coverture by title, other than by "gift, devise or descent." It is not doubted that merely holding adverse possession of some third person's land does not give title to the land to such naked trespass until the limitation period has run. Bishop v. Lusk,
It is true that it is a general principle that a title, when perfected, relates back and takes effect from the time of its origin, and that its status, as separate or community, is determined by the character of the right in which it had its inception. The following cases apply that principle: Welder v. Lambert,
The next question presented is as to the proper legal construction to be given the will of John W. Wauhop. The will bequeaths to his wife for life, with remainder to appellee, "all my furniture, my stock, and the farm upon which I now reside, situated in the county of Red River and state of Texas, together with all notes on hand, as well as monies on hand and in bank." The point is as to whether the testator intended by the language used to dispose of both his and his wife's interest in the property. If so, then the wife, in this case, was put to an election. Considering the language of the will in its entirety, the intention of the testator was, we think, to pass only such interest as he had in the property, and not the interest of the wife. In this view, she was not put to an election. In the introductory clause of the will, which can be referred to for the meaning to include property in the residuary clause, the testator says, "I direct that the legacies hereinafter given be paid out of my estate." The only legacy is as above mentioned. The fourth paragraph is consistent with the introductory clause, and is practically an express recognition of the wife's right. By using the words "paid out of my estate," the testator could only reasonably have meant to be understood as saying that the property, real and personal, disposed of by him should be confined to his interest or his part of the same. The phrase "paid out of my estate," when applied to property, would signify that the property was to be taken or carved out of only the particular portion or right belonging to the testator. The language of the residuary clause begins to describe the property disposed of with the word "my," which is a word expressive of restriction, to the extent of the interest intended to be disposed of, where there are several joint interests. The words "the farm upon which I now reside" are consistent with the gathered intention to dispose of only the interest owned by the testator in the property devised. The latter words are only ambiguous as to the quantity of land intended to be disposed of, and not the interest of the testator therein. It should, in the facts, we think, extend to his interest in all the land, as evidently that was meant.
Therefore, from the conclusions thus reached the judgment must be reversed. After a careful consideration of the record, we have concluded that the cause should be remanded, because there remains in the record a question of fact as to whether the consideration for the deed from Mrs. Tomlin to Wauhop was in exchange for separate land. There is some evidence in the record to that effect, but which we suggest is slight, to overcome the presumption of community purchase. Further evidence may be obtained. And there is an issue as to all the personalty in suit that we cannot undertake by the record to finally pass on.
The judgment is reversed, and the cause remanded.