Harriet A. Ames v. William H. Hubby et al., 49 Tex. 705

Moore, Associate Justice. The first proposition urged by appellant for the reversal of this judgment is, that the certificate and patent for the land in controversy, which were issued to S. C. Page under the act of December 27, 1837, “granting lands to those who were in the battle of San Jacinto and other battles,” gave to said Page merely a life estate, with a vested remainder in fee to his heir.

We, however, are unable, after a critical examination of the statute, to find, any thing, either in the evident object and purpose of its enactment or the language in which it is couched, to warrant such a construction; and we are quite sure, although hundreds of titles are held under deeds from the patentees of certificates issued in virtue of it, this is the first time this court has been asked to give it the construction insisted upon by appellant.

We think it would be an unwarranted reflection upon the titles purchased from the original grantees since the act of March 2, 1848, authorizing the alienation of these certificates and the lands acquired under them, to recognize the objection as worthy of serious consideration or discussion. It would certainly be a singular conclusion to suppose that it was the object of this act to give a more enlarged and beneficial estate to the heirs, whether direct or collateral, no matter how remote, than to the immediate object of its bounty, and whose gallant and heroic service was intended to be commemorated.

It is quite true, as counsel insists, that the right of free and unlimited alienation is one of the most important incidents of a title in fee-simple. (1 Wash., sec. 37, p. 67.) But it certainly does not follow that the government, if it sees fit to do so, might not, when making a donation, restrict or limit the exercise of this incident to the estate. If not, it must follow, from the ingrafting of this restriction in the act, that either the donation or the condition should be held void. In either event appellant’s action must fail.

But the act does not absolutely and in all respects restrict the grantee from alienating the land: it only restrains his doing so by sale of alienation during his lifetime. He certainly has the right to devise or bequeath it, as any other property which he owns. It results, as a necessary sequence, from the very nature of his estate, that his presumptive heir takes no estate, either contingent or vested, in the certificate or the land acquired under it in the lifetime of the donee.

And we may just as well here say, that it was unquestionably within the power of the government to repeal the inhibition against sale or alienation, as by doing so it in no way affected any vested right of heirs or any one else. 2. Appellant’s second proposition is,, that a donation certificate, if the grantee is a married naan, is community property. It is a fundamental proposition, that community property is that acquired by husband or wife by onerous title; while that which is acquired by either of the spouses by gift, devise, or descent is the separate property of the heir, donee, or devisee.

How, the very language of this statute imports a direct gift. It was not a grant in fulfillment of an antecedent promise or undertaking, as was the fact in the case of Goldsmith v. Herndon, 33 Tex., 705.

Compensation for the service performed by Page was provided for in other laws, under which he no doubt received the remuneration in land and money to which he was justly and legally entitled by this statute, which was enacted nearly two years after the occurrence of the memorable events in commemoration of and as a manifestation of public gratitude for which this donation was bestowed upon the living participants’ in them, and the heirs of such as had been killed. To the former, at least, it was intended and received as of far greater import as an honorary token than for its intrinsic value. .

But even had the grant of these certificates been made to remunerate those to whom they were issued for services rendered, they would still be separate property of the donee. In the case of Fisk o. Flores, 43 Tex., 340, Ave had occasion to examine this subject somewhat at length, and we found it laid down by the highest authority, that a donation, in remuneration or compensation for services by one of the spouses, is not a part of the community property.

Says Eschriche, 367: “Remunerative or compensatory donations, AA'hich are made to one of the consorts for his or her individual merits, form no part of the community estate, and that Avhich the husband acquires by military service, and the rewards bestowed upon him. by the government for such services, is his separate property.” It may be, as appellant insists, that the privations and hardships endured by the wives of the gallant soldiers to whom these certificates were donated, gave them as strong a claim upon the gratitude of the country as the service rendered by their husbands; and, as a general rule, this, no doubt, is beyond question.

But this fact does not warrant the coui’t in giving the statute a different construction from that which its plain language and the well-established rules of law require. It was a matter which addressed itself to the Legislature, and not to the court.

But whether appellant was enduring the privations and hardships so glowingly portrayed by her counsel, and which, as we have said, in most cases justly entitled the noble and devoted wives of the participants in these battles to a like recognition of their self-sacrifice and patriotic devotion, to have shared equally with the heroic soldiers who had won for themselves and their country immortal fame in the honors and rewards bestowed upon them by a grateful country, is not shown by the record. History as well as tire records of this court show that such was not the fact in all cases.

On the contrary, in rare and exceptional' instances, we regret to say, their moral right to share in the donation bestowed by the government upon their husbands in commemoration, of their gallantry, was infinitely less than their legal claims to do so, even when we hold them to the strictest letter of the statute. (See Lewis v. Ames, 44 Tex., 319.) 3. The lease of the certificate was obviously an attempt to evade the inhibition at the date of the lease against its alienation, and was therefore absolutely void. Had Page not given a deed for it after the repeal of the

section of the statute prohibiting the sales and alienation of such certificates, appellant would have been entitled to a recovery as the heir of her son, Joseph Page. But it appears from the agreement of the parties that he made an absolute deed for the land after he was authorized to alienate it. That this deed was made upon the same consideration for which he gave the void lease, is of no moment. If Page, who alone had any right, to or interest in the land, was willing to convey it in consideration of the money which had been previously paid him, it was a matter of no consequence to any one else. There being no error in the judgment, it is affirmed. Affirmed.