Jacob Burleson's Heirs v. John Burleson, 11 Tex. 2

Lipscomb, J. We propose to consider the correctness of the judgment, in sustaining the demurrer. If the facts, alleged constitute a good cause of action, the demurrer ought to have been overruled. At the date of the defendant’s covenant, 12th May, 1834, all the laws prohibiting alienation of land to which title had been acquired, had been repealed. It was, therefore, not subject to the same objections, as the contracts in the case of Robinson’s heirs v. Hunt’s heirs, and the case of Robbins’ heirs v. Robbins’ heirs.

In the last case cited, the contract of sale was for land to which the title had not, at the date of the contract, been acquired. It is however insisted, by the counsel for the defendant, that the covenant is void, for want of a good consideration ; that it was founded on the previous agreement of 1832, when the inhibition, by the laws of Coahuila and Texas, to a sale of the land, existed in force; and that it was also void, for want of mutuality, as Jacob Burleson had no land of the description referred to, to divide with the defendant.

As to the first objection, we believe that, although there may have been a previous agreement for a division of, or sale of, a part of the land, that was void and could not have been sustained, on the ground that such agreement, when entered into, was in contravention of law, it would interpose no ground of objection to a covenant for the sale of the same land, between the same parties, after the legal impediment to the sale had been removed.

The second ground, a want of mutuality, is worthy of more consideration; and, although the covenant would import a consideration, yet if it stood alone, unsupported by any other circumstances, it would be difficult, on principle, to sustain an action on it, when it was proven that, in truth, there was no consideration ; yet, when coupled with the attendant circumstances in this case, we believe that it can be sustained.

It is true, that, at the time of the covenant, it does not appear that Jacob Burleson had any land, as his headright land, to exchange with the defendant; but, by the laws in force, he had the capacity to acquire such right, and the defendant covenanted to convey, on the prospective right of Jacob Burleson to headright land ; and this prospective right was afterwards realized, when he located the headright of Jacob Burleson, procured the patent for the same, and claimed the one-half thereof in lieu of the half of his own headright.

It must be remembered, too, that'the defendant had the selection of the land on which the headright of Jacob Burleson was laid, and cannot complain that a bad selection was made. It will not avail the defendant, that the legal title to the one-half of Jacob Burleson’s, had not been conveyed to him.

Because, it was in his power to acquire it, under an order or decree of the Court, at any time after the land had been patented. jXgain, the defendant, by permitting Jacob Burleson to take possession and improve the land, and to continue in possession during his life, and his heirs after his death, has precluded himself from denying that it was for a good consideration), After such a lapse of time, of continued possession and improvement, a good consideration would be presumed, to quiet the possession of the heirs of Jacob Burleson.

A party, permitting such possession so acquired and improvements made, raises an equity against him, that will override his legal title. Such facts amount to a ratification of the covenant, and it is too late to say that it is not supported by a good consideration. Had there been no covenant shown, these facts would have raised apresumption of a title, to support the possession. (Lewis v. San Antonio, 7 Tex. R. 288.) We believe that the petition and the amendments show good grounds for the relief sought, and that the Court below erred in sustaining the demurrer. The judgment is reversed and the cause remanded.

Reversed and remanded.