Louisa J. Hodge et al. v. M. B. Donald, 55 Tex. 344

Bonner, Associate Justice. The only point presented for our decision in this case is this: Did the court below err in sustaining the demurrer of defendant M. B. Donald to the petition of plaintiffs Louisa J. Hodges et al., and in dismissing the same? This depends upon the question whether the land in controversy was the separate property of the surviving husband, William B. Haws, or the community property of himself and his deceased wife, Catharine Haws. The policy of Texas has ever been to induce by grants of land, both married and single men to immigrate and become citizens.

In consonance with the objects sought, greater inducements have been held out to the former class, as shown by the increased amount of land given. Although the certificate or title, under the law, issued to the husband as the head of the family, yet in consideration of the joint toils, privations and dangers undergone by the wife also, it has been repeatedly decided by this court that under our system it would constitute community property of the husband and wife, one-half of which, charged with the debts of the community, would, on the death of the wife, descend to her children. Yates v.

Houston, 3 Tex., 433; Wilkinson v. Wilkinson, 20 Tex., 237. This accords with the general policy of our law upon the subject of marital rights, and an exception to it should not be allowed unless the facts of the particular case clearly demand it. In some cases where the wife died soon after her arrival into Texas, the subsequent grant to the husband has been held to be his separate property, and not community, as in Webb v. Webb, 15 Tex., 274.

These cases will be found to be those in which the death of the wife occurred before there had been a sufficient compliance with the conditions upon which the land was offered, to have then entitled either the husband or the wife to demand it, upon equitable principles or under the terms of the law; and the subsequent grant to the husband was held to be his separate property, upon the ground that the consideration passed from him alone, and not from both him and the deceased wife.

In other cases, in which the death of the wife occurred subsequently to a substantial compliance with the conditions upon which the grant was offered, it has been decided that it was community property. Yates v. Houston, 3 Tex., 433; Wilkinson v. Wilkinson, 20 Tex., 237. The true test, as we deduce from the authorities, is this: First. Did the surviving husband receive the grant by reason of such immigration, settlement, residence, etc., on his own part, as wotild, under the law, entitle him to it, independently of the right based upon his status as a married man at the date of the death of the wife?

If so, it was his separate property. Second. Was the increased quantity over that to which a single man not the head of a family was entitled, given to the surviving husband by reason of the fact that, at the date of the death of the wife, he was then a married man? If so, it was community property of' the husband and the deceased wife, her half interest in which, subject to the debts of the community, would descend to her children.

We do not think, as between the government of Texas and those colonists of Peters’ colony who occupied the position of William B. and Catharine Haws, that the act of January 21, 1850 (Pasch. Dig., art. 828), was purely

an act of sovereign grace and bounty, without regard to any pre-existing obligation on the part of the government to them, as applied in the case of Causici v. La Coste, 20 Tex., 269.

That was a suit brought by the plaintiff as assignee of the contractor, Castro, who had forfeited his contract by non-compliance, against certain parties as assignees of his colonists, who claimed title, not by virtue of their original contract with Castro and under that contract, by which Castro was entitled to part of the land, but by virtue of a subsequent legislative act to protect their titles which had failed under the Castro forfeited contract.

There was no question in that case as to community rights in the title as given by the legislative grant: in fact, the attitude and claims of the parties were entirely different from that presented in the present suit. Passing by the question whether the contract of Peters and others with the government had been forfeited, though from the subsequent act of the legislature of February 10,1852 (Pasch.

Dig., art. 848), granting them seventeen hundred sections of land on account of it, we are warranted in at least saying that it -had not been entirely forfeited, it will be seen, from an inspection of the Peters’ colony acts, that the government offered great inducements to those persons who, upon the faith of these acts, should come into Texas and settle within the limits assigned to those contractors. By

section 7 of the original act (Pasch. Dig., art. 813), it is contemplated that as much as six hundred and forty acres of land might be located for any family comprehended in the contract, and three hundred and twenty acres to a single man. By sections 8 and 9 (Pasch. Dig., arts. 811—15), it is provided that not more than one-half the land should be subject to sale for the expense incurred by the contractor for passage, transportation or removal to Texas, or for the selection, surveying, title or other fees, in regard to the land. By section. 12 (Pasch.

Dig., art. 818), it is provided that “ a failure on the part of the contractors, and a forfeiture of their contract, shall .not be prejudicial to the rights of such families and single persons as they may introduce, who shall be entitled to their respective quotas of land agreeable to the provisions of this law.” This guaranty was further made in the ordinance to the constitution of 1845. Pasch. Dig., p. 76.

In pursuance of these promises, made by solemn legislative enactment, the statute of January 21, 1850, was passed, entitled “An act to secure to all actual settlers within the limits of the colony granted to Peters and others, commonly known as Peters’ colony, the land to wTiich they are entitled as colonists.” Pasch. Dig., p. 236.

It will be seen from the caption that the act was not intended to give them lands to which they had no claim otherwise, but simply to secure them in that to which they were already entitled as colonists, their title to which had become involved in the confusion growing out of the settlement with the contractors, Peters and others.

Section first of the act is as follows: “All actual settlers who have emigrated to this state as colonists, and settled within the limits of the colony' granted to Peters and others, commonly known as Peters’ colony, prior to the 1st day of July in the year 1848, shall be entitled to the quantity of land hereinafter stated, to wit: each head of a family shall be entitled to six hundred and forty acres of land, including his or her improvements; and each single man who was, at the time of his immigration to and settlement in'said colony, over the age of seventeen years, shall be entitled to three hundred and twenty acres of land, including his improvements. ” Pascli.

Dig., art. 828. The two essential requisites of the act to entitle the party to the benefit of its provisions were, immigration into Texas as a colonist, and settlement within the limits of the colony of Peters and others, prior to July 1, 1848. There was no other limitation upon the right, and no subsequent áct or duty required, except that which evidently applied to those only who should, be living at the time they claimed the benefit of the statute, contained in

section 7 of the act. This

section is as follows: “To entitle settlers to the benefits of this act, they shall each be required to prove by his or her own oath, supported by the oath of two or more witnesses, that such settler emigrated to Texas and settled within the limits of said colony, granted to Peters and others, as a colonist, prior to the 1st day of July, 1848, and that they have since continued and still remain settlers of said colony, and have performed all of the duties required of them as good citizens.” . . . Pasch. Dig., art. 834. That this

section was not intended.to affect the interest of those who otherwise came within the requisites of

section 1, but who, by reason of death, could not take the oath, etc., prescribed by

section Y, is placed beyond all doubt by section-2 of the act, which is as follows: “The heirs or legal representatives of such as have died subsequently to their settlement within said colony limits shall be entitled to the same quantity of land to which the persons whom they represent would have been-entitled.” Pasch. Dig., art. 829. By the original Peters’ colony act there was no condition subsequent of continued residence required. By the subsequent joint resolution of January 16, 1843 (Pasch.

Dig., art. 822), modifying the original act, a condition subsequent of three years’ residence, improvement and-cultivation was imposed. It would seem from the allegation in the petition, that Mrs. Catharine Haws had, previously to her death in 1849, which occurred but a short time before the passage of the act of January 21, 1850, complied substantially with these conditions.. She evidently came within the designation of such person as, under

section 1, act January 21, 1850, was entitled to relief, she having immigrated to Texas as a colonist, and having settled as such within the limits of the colony granted to Peters and others prior to-July 1, 1848; and having lived upon part of the land se-, cured by the act of January 21, 1850, from the year 1845 until her death thereon in 1849. The status of the husband, William B.

Haws, on July 1, 1848 —the date when the contract with Peters and others expired by limitation, and the date fixed by the act as the test of the right to demand the benefit of the statute—was that of-a married man; Catharine Haws, the mother of the plaintiffs, being then his living wife, and as much entitled as he was to the land, which was secured by virtue of their prior immigration and their then settlement and residence in Peters’ colony.

It may be added in this connection, that the petition to which the demurrer was sustained, and the land certificate made a part of it, which was issued under the act in question, show upon their face that the grant of six hundred and forty acres of land was made to William B. Haws by virtue of his immigration to Texas and entry into the colony as a colonist prior to July, 1848, with his wife and children. Had the husband also died subsequent to July 1, 1848, and prior to the passage of the act of January 21, 1850, evidently under

section 2 of the act the heirs and legal representatives of the deceased parties could have obtained the certificate, and then it would have been community property. Edwards v. Beavers, 19 Tex., 506; Marks v. Hill, 46 Tex., 345. We are of opinion that the six hundred and forty acres of land, the title to which was secured by the act of January 21, 1850, was the community property of William B. and Catharine Haws. What may be the ultimate right and equities arising outside of this question is not before us.

The view we here take of the law is supported by the earliest and latest case where this question has come before this court. Cannon v. Murphy, 31 Tex., 405; Carter v. Wise, 39 Tex., 273. It was held contra in Caudle v. Welden, 32 Tex., 355. In the very elaborate opinion of Presiding' Judge Walker, in the case of McReynolds v. Bowlly, submitted by consent to the commissioners of appeals and decided at the Austin term, 1880, in which the same result was reached as in the case of Caudle v.

Welden, supra, much weight was given to the fact that the land settled upon was a reserved section, not subject to location, and hence the settlement was void as being against law. For the error of the court in sustaining the demurrer to the petition the judgment below is reversed and the cause remanded. Reversed and remanded. [Opinion delivered June 24, 1881.] Ch. J. Moore did not sit in this case.